http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  799 of 1997

PETITIONER: Chinnamma                                          

RESPONDENT: State of Kerala  

DATE OF JUDGMENT: 24/02/2004

BENCH: N.Santosh Hegde & B P Singh.

JUDGMENT: JUDGMENT

SANTOSH HEGDE,J.

       Appellant herein was convicted by the Court of Session,  Pathanamthitta, Kerala for an offence punishable under section  302 IPC and was sentenced to undergo imprisonment for life  for having committed the murder of her sister in law by name  Suma Varghese. Her appeal to the High Court of Kerala at  Ernakulam having failed she is before us in this appeal. The  facts necessary to be noted for the disposal of this appeal are as  follows :

       Deceased Suma Varghese was the wife of Jose Mathew  PW-1 and was residing with her husband and father in law PW- 2 in Nellickal house. PW-2 father in law of the deceased had  purchased a property which the appellant who was his daughter  and sister in law of the deceased, wanted him to hypothecate to  secure a housing loan for her. It is alleged PW-2 agreed to do so  but the deceased objected to the same. It is because of this  reason the appellant, according to the prosecution, had  entertained an ill-will against the deceased. Prosecution alleges  that on 8.7.1989 at about 8.45 a.m. when the deceased was  dressed and ready to go to her mother’s house, the appellant  came to her house and struck her on the back of head with a  piece of fire-wood because of which the deceased fell down.  Thereafter it is alleged the appellant poured kerosene oil on her  chest and set her on fire which caused serious burn injuries. On  hearing the alarm raised by the children of the deceased, PW-2  and others came running and extinguished the fire, noticing the  severe burn injuries suffered by the deceased. She was removed  to the Government hospital at Kanjirappally where the Medical  Officer on duty after giving first aid and noticing the nature of  injuries on her body, referred her to the Medical College  Hospital at Kottayam. The prosecution alleges that while she  was in the Medical College Hospital, two dying declarations of  hers were recorded; one by Head Constable Karunakaran Nair,  PW-14 on 10.7.1989 at about 10.45 p.m. and the other by  Judicial First Class Magistrate, PW-8 on 14.7.1989. As per the  said dying declarations, the deceased implicated the appellant  as the person who poured kerosene on her and lit the fire  causing her burn injuries. A complaint in this regard was lodged  on 10.7.1989 by PW-6 father of the deceased, based on which  the investigation was initiated by the jurisdictional Police and  on completion of the same a chargesheet as against the  appellant was filed for an offence punishable under section 302  IPC. Deceased Suma died on 28.7.1989. As stated above, after  trial the appellant was found guilty of the offence charged by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

the trial court which finding was confirmed by the High Court.  Mr. V.B. Saharya, learned amicus curiae appearing for  the appellant, contended that the courts below have erred in  placing reliance on the two dying declarations made by the  deceased which when examined in the light of other evidence  led by the prosecution, would clearly go to show that the  deceased had implicated the appellant falsely and her own  evidence as corroborated by the other evidence led in this case,  indicates that the deceased had suffered accidental burns and  she had falsely implicated the appellant as the assailant.         Learned counsel during the course of his arguments,  pointed out that there was absolutely no motive for the  appellant to commit such a gruesome crime. He also pointed  out that even according to the entry made by the doctor, PW-11,  in the wound certificate Ex. P-11, deceased had told him that  she suffered the burns accidentally when she was cooking food  for the piglings. Learned counsel then pointed out the  discrepancies in the two dying declarations Ex. P-10 and 15. It  is based on the said contradictions in the prosecution case,  learned counsel pleaded that the appellant has been wrongly  convicted by the two courts below.  Mr. Ramesh Babu, learned counsel appearing for the  respondent, however, contended that both the courts below  have rightly accepted the prosecution case which is not only  supported by two dying declarations made by the deceased as  per Ex. P-10 and 15 but is also supported by other evidence led  by the prosecution which clearly showed that it is the appellant  who was responsible for causing the burn injuries  because of  the enmity she had with the deceased.

       In this case at the outset it must be noted that there are no  eye witnesses to the incident in question. The prosecution  primarily relies on the two dying declarations made by the  appellant and other evidence led in this case to establish the  motive as also the act of the accused causing the death of the  deceased. In this background, we will first consider the two  dying declarations made by the deceased on which both the  courts below have placed strong reliance. The first dying  declaration is recorded by the Head Constable of Police who  came to the hospital on being informed about the admission of  the deceased in the said hospital and recorded the statement of  the deceased on 10.7.1989 at about 10.45 p.m. In the said dying  declaration the deceased stated that she was married about 2 =  years earlier to PW-1 and was staying in his house and that she  had two children. She further states that the appellant who is the  sister of her husband was annoyed with her because of a  property dispute. She then states that on Friday morning  (7.7.1989) she wanted to go to her mother’s house hence she  told her husband that she will be going there to which her  husband had told her not to go still she changed her dress to go.  She further says that at that point of time the appellant came to  the house and asked her "where are you going ?" but the  deceased did not reply. She then proceeds to state that on  Saturday (8.7.1989) at about 9 a.m. she got dressed up again to  go to her mother’s house when the appellant came inside the  house and standing behind her hit her on the back of her head  once and she fell on the floor. She proceeds to state that the  appellant then took the kerosene tin which was kept in the room  and poured it on her chest. When she felt heat on her chest, she  got up and ran outside the house and fell unconscious in the  courtyard. She then states that some people brought her to the  hospital in a vehicle to Kanjirappally hospital. From the above  statement made to the Police Head Constable on 10.7.1989,  following facts can be deduced :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

         That on 7.7.1989 when she wanted to go to her mother’s  house, her husband did not allow her to go. On 8.7.1989 she  still wanted to go to her mother’s house, so she dressed up  when she was attacked on the head by the appellant, and then  the appellant took the kerosene oil which was kept in the room  and poured it on her chest. She had not noticed the factum of  the appellant setting her on fire and when she felt heat, she ran  outside the house and fell unconscious. She also remembers  having gone to Kanjirappally hospital.    

       We will now examine the contents of the second dying  declaration Ex. P-10 recorded by the Magistrate on 14.7.1989.  It should be noted here that this was a statement recorded about  6 days after the incident in question during which time she was  being looked after in the hospital by her father and other  relatives. This statement of the deceased was recorded in the  presence of the Duty Doctor who had certified her to be  conscious and coherent to give a statement. In this statement  which is in the form of questions and answers, the deceased  told the Magistrate that on last Saturday (8.7.1989), she took  food for piglings from the kitchen of her husband’s house, and  as soon as she entered the kitchen, she got a beating on the back  of her head. That was by her sister-in-law whose name is  Chinnamma. She then fell down and became unconscious. She  then states that while she was unconscious, the flames started  and there was smell of kerosene. To a question asked by the  Magistrate, she states that it was her sister-in-law who beat her  therefore, she suspects that her sister-in-law set her body on  fire. While answering a question as to who all were attending  on her, she said that her father, mother, two brothers, two sisters  and her husband were attending on her. In regard to the reason  for the attack, she states that there was some talk that she had  done some evil magic on her husband, therefore, her husband  was not loving his sister (the appellant) after their marriage. A  careful consideration of this dying declaration made about 14  days before her death, shows that in this statement she states  that when she entered the kitchen, she was struck on the back of  her head which she assumes was by her sister-in-law (the  appellant). She then states that she became unconscious  thereafter and when she regained consciousness, she saw flames  and smelt kerosene. She also says that she suspected her sister- in-law of having set her on fire. The motive given for this attack  by the appellant in this dying declaration was that the appellant  had suspected the deceased of having cast certain evil magic on  her husband because of which he stopped loving his sister, the  appellant. A comparison of these two dying declarations, in our  opinion, shows certain glaring contradictions. In the first dying  declaration, we have noticed that there was an incident on the  previous day when she desired to go to her mother’s house and  got dressed up for the same. Her husband did not allow her to  go to her mother’s house. But the next day, when she got  dressed again to go to her mother’s house, the appellant came  and standing behind her, hit her on the back of her head when  she fell on the floor and she saw the appellant taking kerosene  which was kept in the room and pouring on her chest and  thereafter she felt the heat and ran outside the house and fell  unconscious. The factum of she having seen the appellant  taking out the kerosene from the room and pouring the same on  her was not spoken to by her in her second dying declaration.  This fact has some relevance while appreciating the correctness  of the two dying declarations because if really she was  conscious and had seen the appellant take the kerosene and  pouring the same on her, she would not have forgotten to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

mention it again in her second dying declaration. Again, while  she was certain that it was her sister-in-law (appellant) who  poured the kerosene on her and set her on fire as per her first  dying declaration; in the second dying declaration, she was not  so sure because she says that she only suspected the appellant  as having set her on fire. This is because she had earlier stated  in that statement, she became unconscious when her sister-in- law had hit her on the head. Even the motives given in the two  dying declarations are entirely different. These contradictions,  in our opinion, create grave suspicion in our minds whether the  injury suffered by the deceased was really because of the act  of  the appellant or was a figment of the imagination of the  deceased. This suspicion of ours becomes all the more stronger  if we notice the evidence of PW-11 who treated her in the first  instance when she was taken to Kanjirappally hospital. It is  seen from the wound certificate Ex. P-11 given by this doctor  that when he examined the deceased for the first time at  Kanjirappally hospital, she stated that she suffered the injury  due to accidental burning while preparing food for the piglings.  This very important aspect of the case was rejected by both the  courts below on the ground that the entry made in the wound  certificate might not have been a correct entry because the  witnesses who took her to the hospital, had stated that she was  not in a fit condition to talk. But then we should remember that  this is an entry made in a document regularly maintained and  the doctor had no reason whatsoever to make an incorrect entry,  and no question was asked to this doctor when he was in the  witness box as to the correctness of the entry, therefore, due  weight should be given to the contents of this wound certificate  and the courts below ought not to have rejected the same on the  basis of oral evidence given by certain witnesses. It is also very  relevant to mention here that the deceased was prevented from  going to her mother’s house by her husband on 7.7.1989 and  the deceased being adamant in spite of protest from her  husband, had decided to go to her mother’s house again on  8.7.1989 which indicates that there may be reasons other than  the alleged enmity entertained by the appellant for suffering by  the burn injuries which led to her ultimate death. From the  material on record, we are also unable to find any strong motive  which would have induced the appellant to commit such a  heinous crime of burning her sister-in-law to death. The  conduct of the appellant in being present with the deceased  right through the journey to the hospital also indicates  otherwise. There is another important aspect of the case which  was not considered by the two courts below properly i.e. it is  the case of the deceased that she was beaten on the back of her  head with a firewood,  consequent to which she fell down and  had lost her consciousness. Though during the course of inquest  of the dead body, it was noticed that there was a contusion on  the head, the doctor who examined the deceased before she died  as also the doctor who conducted the post mortem, did not  notice any such injury on the head which indicates that the first  part of the attack on the deceased by the appellant could be  concocted. At any rate, the prosecution has failed to establish  the first part of the attack by the appellant on the head of the  deceased. Learned counsel appearing for the State, however,  contended that because of the burn injuries, the doctors might  not have noticed the head injury caused by the attack with a  firewood on the head of the deceased. We have perused the  medical report which shows that all the burn injuries suffered  by the deceased were below the neck and on the limbs and so  far as the head is concerned, there was no burn injury. The  absence of any injury at the back of the head of the deceased as  also non-recovery of the firewood which was used in the assault  on the deceased indicates that the first part of the dying

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

declaration is not true. In this background, the second part of  the dying declaration that she fell down and became  unconscious also cannot be believed. These discrepancies  would indicate that her statement made to the doctor PW-11  that she suffered burn injuries accidentally while cooking  becomes more probable. Be that as it may, the abovementioned  facts create a doubt in our mind as to the truthfulness of the  contents of the dying declaration as also the possibility of she  being influenced by her parents in making the dying declaration  cannot be ruled out. Having very carefully perused the material on record, we  are unable to come to the conclusion that the prosecution in this  case has established its case beyond all reasonable doubt to base  a conviction on the appellant. Hence, we are of the opinion that  both the courts below have erred in coming to the contra  conclusion.

       For the reasons stated above, this appeal succeeds and the  judgment and conviction recorded by the courts below are set  aside. The appeal is allowed. We are told that the appellant is  on bail. If so, her bail-bonds shall stand discharged.