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2018 DIGILAW 329 (KER)

Varghese @ Varkey v. State of Kerala

2018-04-11

C.K.ABDUL REHIM, SHIRCY V.

body2018
JUDGMENT : Shircy V., J. The appellant herein namely Varghese @ Varkey was sentenced to life imprisonment and to pay a fine of Rs.50,000/- and in default to undergo simple imprisonment for a period of two years, after having found him guilty of the offence punishable under Section 302 of the Indian Penal Code ('IPC' for short) in Sessions Case No.1029/2009 on the files of the Sessions Court, Alappuzha. 2. The facts leading to the case as stated by the prosecution are that, the appellant married Bindu, the deceased, who was the daughter of PW1 and PW2, on 22.8.2007 and they were residing together as husband and wife at his residence in Ward No.6 of Ezhupunna Panchayath, Alappuzha. While so, he had subjected her to cruelty demanding dowry. On 12.4.2009 at 7.30 p.m. the appellant with the intention to commit murder of Bindhu, made her to believe that both of them were going to commit suicide, tied her hands with a cloth and made her to lie down on the cot in their bedroom .He then poured Kerosene over her body and set her ablaze and fled away from the place of occurrence. Her hue and cry drew attention of the people residing nearby and the people gathered there tried to extinguish the fire. But she suffered serious burn injuries. Immediately she was rushed to the General Hospital, Ernakulam in an Ambulance and was admitted for treatment by PW16. On receiving information from the General Hospital, PW37, the Sub Inspector of Police, Aroor recorded the statement of PW1, the father of the victim, who was found along with the victim and registered Ext.P12 FIR on the basis of the said statement as Crime No.200/2009 of Cherthala Police Station, under Section 498A and 307 of IPC, at 12 O' clock in the midnight between 12.4.2009 and 13.4.2009. PW37 also made a request to PW18, the duty Doctor, to record dying declaration of the victim, as the service of any Magistrate was not available in the night. PW18 recorded Ext.X1 statement of the victim at 11.15 p.m. on 12.4.2009 in the presence of PW2, mother of the victim and PW19 Smt. Ushakumari, a Staff Nurse of the General Hospital, after certifying that the victim was conscious, oriented and was in a fit state of mind to make the statement. PW18 recorded Ext.X1 statement of the victim at 11.15 p.m. on 12.4.2009 in the presence of PW2, mother of the victim and PW19 Smt. Ushakumari, a Staff Nurse of the General Hospital, after certifying that the victim was conscious, oriented and was in a fit state of mind to make the statement. Bindhu, the victim narrated the overt acts on the part of her husband (the appellant) and the manner in which he caused the burn injuries on her. Though Bindhu had undergone treatment in the hospital, on the next day at about 1 p.m. she succumbed to the burn injuries sustained. 3. PW37, on 13.4.2009 at about 10.30 a.m., prepared Ext.P8 Scene Mahazar in the presence of PW30 and other witnesses and seized the articles found at the place of occurrence, as part of the investigation. PW29, the Additional Tahsildar of Cherthala, prepared Ext.P5 Inquest Report on 14.4.2009 at about 8.30 a.m. PW17 conducted post-mortem examination on the body of the deceased and issued Ext.P4 certificate. The Doctor certified that the deceased died due to the burn injuries sustained. The investigation was taken up by PW30, Dy.S.P., Cherthala and he submitted Ext.P15 report for altering section 498A and 307 IPC as to 302 of IPC. The appellant was arrested on 13.4.2009 as per Ext.P16 Arrest Memo. Ext.P17 is the Inspection Memo and Ext.P18 is the Arrest Notice. After investigation, the Dy.S.P., Chethala filed the Final Report before the Judicial First Class Magistrate-II, Cherthala, against the appellant for having committed offence punishable under Section 302 of IPC. That court, after completion of all the legal and procedural formalities, committed the case to the Court of Session as C.P.No.37/2009. When the appellant was produced before the Sessions Court, he was served with all the records and after hearing the prosecution as well the appellant, charge was framed under section 302 IPC. He pleaded not guilty and claimed to be tried. He was defended by a counsel appointed by the State. 4. In order to bring home the above stated offence, the prosecution had examined as many as 40 witnesses, exhibited documents as Ext.P1 to P21, Ext.X1, X1(A) and identified MOs.1 to 4. On the defence side, Exts.D1 to D16 were marked. Upon closure of evidence the appellant was examined under Section 313 Cr.PC. 4. In order to bring home the above stated offence, the prosecution had examined as many as 40 witnesses, exhibited documents as Ext.P1 to P21, Ext.X1, X1(A) and identified MOs.1 to 4. On the defence side, Exts.D1 to D16 were marked. Upon closure of evidence the appellant was examined under Section 313 Cr.PC. At the conclusion of trial, the learned Sessions Judge found the appellant guilty and convicted him under Section 302 IPC to undergo life imprisonment and to pay a fine of Rs.50,000/-, in default to undergo simple imprisonment for two years. 5. We have heard Sri M. Dinesh, learned Counsel for the appellant and Smt. Ambika Devi, learned Public Prosecutor at length and gone through the records thoroughly and extensively. 6. Assailing the impugned judgment dated 30.6.2012, the learned counsel for the appellant has vehemently contended that, there is absolutely no evidence to connect the appellant with the alleged crime. But the court below on an erroneous and perverse finding convicted him as above by ignoring the glaring defects and infirmities creating serious doubt on the case of the prosecution. On the other hand, learned Public Prosecutor has submitted that the prosecution has proved its' case beyond all reasonable doubt against the appellant and so the conviction as well the sentence imposed on him are only to be confirmed and there is absolutely no legal or justifiable ground to interfere with the conviction or sentence entered into by the learned Sessions Judge. 7. Before going into the rival contentions, it is apposite to verify the cause of death of the deceased detailed in Ext.P4 Post-mortem Certificate issued by PW17, the Assistant Professor, Department of Forensic Medicines, Medical College, Alappuzha who conducted autopsy on the body of the deceased on 14.4.2009. The doctor has noted the following injuries in Ext.P4 Certificate : ''B. INJURIES (ANTEMORTEM) Dermoepidermal burns involving whole body except scalp areas of head, back of both writs, lower part of back of trunkj (over an area of 29x18cm) including upper half of left buttock, back of both knees (over an area of 21x18cm) each and the exterbnal genitalia. Approximately involving about 90% of body surface area. C. other findings. The brain (800gm) was oedematous. Clottis WAS oedematous. Air passage congested and contained, black soot particles mixed with frothymucus. Lungs (right 480 gm and left 430 gm) were congested and oedematous. Approximately involving about 90% of body surface area. C. other findings. The brain (800gm) was oedematous. Clottis WAS oedematous. Air passage congested and contained, black soot particles mixed with frothymucus. Lungs (right 480 gm and left 430 gm) were congested and oedematous. Stomac (400 gm) was half full ith thin, long rice and other unidentifiable food particles having no unusual smell, its mucosa was normal. Uterus was 7x3.5x2 cm its cavity empty, appednages normal. Urinary bladder was empty. All other injternal organs congested, otherwise appeared normal. Samples of blood, viscera and burnt skin were sent for chemical analysis. Blood group of the deceased was determined at blood bank, medical college hospital, Alappuzha and found to be 'B' Fh positive. Opinion as to cause of death Death was due to burns.” 8. The Doctor when examined has asserted that the deceased died due to burns and she had 90% burn injuries on all areas, except the areas specifically mentioned in Ext.P4, which includes the lower part of back of left buttock and back of both knees and back of wrist. He opined that, those areas could have been in contact with some surface and therefore inaccessible to the effects of the flame. Perhaps the deceased could have been in such a position as lying on the back, to present with such pattern of injuries. The Doctor has also opined that 90% burns itself is sufficient to cause death even with treatment. From the deposition of PW17 as well as from the Post-mortem Certificate, it could be seen that death of the deceased was due to the severe burn injuries sustained in fire. 9. The prosecution case is mainly based on dying declarations of the deceased, occular evidence to a certain extent, and circumstantial evidence. We shall first deal with the ocular evidence. 10. PW1/informant is the father of the deceased who gave Ext.P1 statement before PW37. Admittedly, the deceased was residing at her matrimonial home at the time of the incident, which is about 3 K Ms away from her paternal house. The death of the deceased was just one year after her marriage. According to PW1, the marriage was an arranged marriage and after marriage she was residing along with the appellant. On the date of the occurrence she came to his residence and returned to her house at about 4 O’clock. The death of the deceased was just one year after her marriage. According to PW1, the marriage was an arranged marriage and after marriage she was residing along with the appellant. On the date of the occurrence she came to his residence and returned to her house at about 4 O’clock. But in the night he got information that the deceased had sustained burn injuries and she was taken to the General Hospital Ernakulam for treatment and so they proceeded to the Hospital. When they reached there they found her with burn injuries. But she was conscious and she told that she was assaulted by the appellant and tied her to the cot and poured Kerosene over her body and lit fire and thereafter ran away from the spot. She died on the next day at about 1 O’clock because of the burn injuries sustained by her. He had three daughters including the deceased. It is the evidence of PW1 that she was his elder daughter, but she was having mild mental retardation and so his other two daughters were given in marriage before her marriage. While so, the appellant approached him with his marriage proposal. In fact, he was not interested to give her in marriage to him. But one of his neighbours also intervened in the proposal and thus he had given her in marriage. The marriage was performed in a temple at Kannakulangara and 5-6 sovereigns of gold ornaments and Rs.3000/- were given at the time of marriage. But, her life with the appellant was not at all happy. She used to visit her parental house quite often and during such visits she informed that the appellant used to assault and ill-treat her demanding more money. In short, he has deposed that the appellant had tied her to the cot, poured Kerosene over her body and burned her to death. The suggestion of the learned defence counsel that the deceased had extra marital relationship and she committed suicide, was emphatically denied by PW1 in his cross-examination. 11. PW2 the wife of PW1 has fully supported the testimony of PW1 and further deposed that the life of the deceased with the appellant was not at all happy, as he used to harass her for more money. 11. PW2 the wife of PW1 has fully supported the testimony of PW1 and further deposed that the life of the deceased with the appellant was not at all happy, as he used to harass her for more money. She has also deposed that on the fateful day her daughter, the deceased, visited her and she was with her till 4 O’clock. But at 8 O’clock she got information that she sustained severe burn injuries and was admitted in the hospital for treatment. She too rushed to the hospital along with PW1 and on enquiry with the deceased she revealed that the appellant tied her to the cot and poured Kerosene over her body and set fire and then he fled away from the spot. She had also denied the very same suggestion of the learned counsel for the defence that the deceased committed suicide. It is also revealed from the deposition of PW1 and PW2 that the deceased was employed in a 'Prawn Peeling' factory and she used to attend the work. She had also deposed that the appellant had sold away her gold ornaments and appropriated the money presented to her at the time of the marriage and she was compelled to bring more money from her parents. According to PW2 that fact was told to her by the deceased herself and she knows that her life was not happy with the appellant, still the deceased used to return to his residence after every visit to the parental house. 12. PW5, sister of the deceased, had spoken to the marital discord of the deceased and denied the defence version and the very same suggestion put to her in cross-examination by the learned counsel for the appellant. In fact, she corroborated the evidence of PWs.1 and 2. Although all these witnesses were cross examined at length nothing was divulged so as to discredit the evidence of those witnesses. 13. The prosecution mainly relies on the dying declaration made by the deceased and recorded by PW18 while undergoing treatment in the General Hospital, as well as on the informations given by her to her neighbors who rushed to rescue her from fire. The evidence in this regard assumes importance and great weight. The dying declaration was recorded by Dr. 13. The prosecution mainly relies on the dying declaration made by the deceased and recorded by PW18 while undergoing treatment in the General Hospital, as well as on the informations given by her to her neighbors who rushed to rescue her from fire. The evidence in this regard assumes importance and great weight. The dying declaration was recorded by Dr. Madhu, PW18, at about 11.15 p.m. on 12.4.2009 in the presence of the mother of the deceased and a staff nurse (PW19 Ushakumari). Ext.X1 is the dying declaration recorded, as requested by the investigating officer. According to PW18, as the service of a Magistrate was not available in the night, the ASI (PW37) had requested him to record the statement of the victim and he recorded the same as stated by her in her own language. He sealed that in an envelop and entrusted to PW37. The translation of her statement recorded in vernacular explaining the circumstances leading to the incident are as follows: “I reached home from the company at about 12'O clock. In the evening when my husband reached he told me that I have to come only in the evening. He asked me whether I have given everything to my house in his absence. Thereafter they together had taken the biriyani brought by him and then he told that it is not possible for him to provide food to me and I will have to bring money from my house. Then he went to the nearby shop and brought kerosene. When I asked him for what purpose the kerosene was bought by him he told that they together were going to die and by saying the same he poured kerosene on me and had thrown a lighted match towards me and set ablaze and fled away from there. The people gathered there on hearing my hue and cry shifted me to the hospital''. 14. PW18 had asserted that, Ext.X1 statement of the deceased was recorded by him in the presence of her mother and PW19, the duty nurse, and that the deceased was conscious, oriented and was in a fit state of mind to speak and after fully convinced of the said fact he recorded the same. PW18 had obtained signature of the mother of the deceased as well as that of the duty nurse in Ext.X1. PW18 had obtained signature of the mother of the deceased as well as that of the duty nurse in Ext.X1. There is no tangible reasons to doubt genuineness of the version of this Doctor. 15. It is well settled through judicial precedents that, a truthful and reliable dying declaration may form the sole basis for conviction as an element of sanctity is attached to it. The principle on which dying declarations are admitted in evidence is indicated in the legal maxim “Nemo Moriturus Praesumitur Mentiri” which means that, 'a man will not meet his mentor with lie in his mouth”. Under Section 32 (1) of the Evidence Act, dying declarations are acceptable evidence even though it is not a statement made on oath and is also not tested in cross-examination. So once the statement of the victim is found to be true, reliable, and is free from legal infirmities, it can be accepted without further corroboration. 16. In Meesala Ramakrishnans v. State of A.P., (1994) 4 SCC 182 the Hon'ble Supreme Court had accepted the dying declaration even on the basis of gestures not only as admissible, but also as possessing evidentiary value. It is well settled by a series of Judgments and Judicial precedents that, if the court is satisfied as to the veracity of the statement of a dying person as to the cause of his/her death, it can be accepted without any corroboration. It is fruitful to refer a few leading judgments of the Apex Court on this subject. In Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh [ (1993)2 SCC 684 ], the Hon'ble Supreme Court observed as follows; "Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not credit-worthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations, then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.” In Jai Kiran v. State of Delhi (NCT) (1999)8 SCC 161 , the Supreme Court held as follows: “A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premise which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated. It is this premise which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated.” In Amol Singh v. State of Madhya Pradesh [ (2008) 5 SCC 468 ], the Apex court held as follows: “If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent.” In Ramakant Mishra alias Lalu and others v. State of Uttar Pradesh, [ (2015) 8 SCC 299 ] “10. When a person makes a statement while being aware of the prospect that his death is imminent and proximate, such a statement assumes a probative value which is almost unassailable, unlike other statements which he may have made earlier, when death was not lurking around, indicating the cause of his death. That is to say that a person might be quite willing to implicate an innocent person but would not do so when death is knocking at his door. That is why a Dying Declaration, to conform to this unique specie, should have been made when death was in the contemplation of the person making the statement/declaration. That is to say that a person might be quite willing to implicate an innocent person but would not do so when death is knocking at his door. That is why a Dying Declaration, to conform to this unique specie, should have been made when death was in the contemplation of the person making the statement/declaration. In the case before us, the statement, if made by the deceased, would qualify to be treated as a Dying Declaration because she was admitted in the hospital, having sustained 90-95 per cent burn injuries, and because of this grave burn injuries, she would be expecting to shortly breathe her last.” 17. In short, if a dying declaration is found truthful, it is sufficient to base a conviction as much weight is attached to it. Here, on an evaluation of the evidence it could be seen that the dying declaration recorded by PW18 satisfy the standard of legal proof required. PW18 had certified in Ext.X1 that the patient (deceased) was conscious and was in sound mental condition to make the statement before him, though she had sustained 90% burns. Her statement was recorded in her own language. In short PW18 had deposed that, she told him that her husband poured Kerosene over her body and set fire and she made the statement voluntarily in a fit mental condition though she sustained 90% burns. It is pertinent to note that PW18 was subjected to lengthy cross examination by the learned counsel for the defence. But nothing was brought out to discard his testimony before the court as well Ext.X1 dying declaration recorded by him on the very same day of her admission in the hospital. PW19, the duty nurse also testified that PW18 recorded the statement of the victim as told by her and she was conscious and oriented while giving the statement. Even after thorough cross-examination, the defence could not shake her credibility. 18. It is worthwhile to mention that dying declaration is to be judged on the facts and circumstances of each case as no hard and fast rule is laid down and no prescribed form is there to record the same. Before relying on or rejecting the dying declaration of the deceased, the court is bound to scrutinize carefully to ensure that the dying declaration is true and voluntary and not the result of tutoring, prompting or imagination. Before relying on or rejecting the dying declaration of the deceased, the court is bound to scrutinize carefully to ensure that the dying declaration is true and voluntary and not the result of tutoring, prompting or imagination. Of-course, if there are circumstances to create suspicion it is unsafe to act upon the same without corroboration. Here, the dying declaration recorded by PW18 does not suffer from any infirmity and could be accepted without any further corroboration. In fact, it is consistent with what she told to her parents, the neighbors who gathered on hearing her clamour and helped her to shift to the hospital. 19. PW16, Dr. Sindhu, Assistant Surgeon of the General Hospital who attended the deceased in the casualty as the duty Doctor and issued Ext.P3, had noted the history of the injuries in Column No.10 as ''Husband poured Kerosene and lit''. It is relevant to note that, testimony of this Doctor is to the effect that the history was told to her by the patient herself, though it was not specifically recorded as such in Ext.P3. But she offered a satisfactory explanation that she was busy in the causality and so she omitted to record that the history was told to her by the patient herself. It has also come out in evidence from the deposition of PW16 that the deceased was conscious and oriented when she was brought to the causality. Thus the deposition PW18 stands corroborated by the version of PW16. 20. PW15 is another Doctor working as Assistant Surgeon at the General Hospital, Ernakulam. Ext.P2 certificate was issued by PW15, to the effect that the deceased was admitted on 12.4.09 at 9.10.p.m due to burns and she expired on 13.4.09 at 1 p.m. while undergoing treatment. 21. The prosecution had examined PWs.3, 4, 6, 7, 8, 9, 10 11, 12 and 13, the neighbours of Bindu to prove the case that she was set ablaze by the appellant after pouring Kerosene over her body. PW3 deposed that his house is located just 50 metres towards east of the residence of the appellant and the deceased. According to him, in the evening of the fateful day, on hearing a clamour from the house of the deceased he rushed to the place and found the deceased in a burning condition. PW3 deposed that his house is located just 50 metres towards east of the residence of the appellant and the deceased. According to him, in the evening of the fateful day, on hearing a clamour from the house of the deceased he rushed to the place and found the deceased in a burning condition. He along with PW4 broke open the door and tried to extinguish the fire by pouring water on her body. PW4 has also deposed in similar terms. But both of them have not deposed that the deceased had told anything to them, though they rushed to save her from flames. However, PW3 heard the deceased telling something to PW7 and to the people gathered there seeing her in flames. 22. It is the case of the prosecution that on getting information from PW7, the local Ward Member, PW35, the ASI of Aroor Police Station and PW36, another grade ASI of the very same police station, reached the place of occurrence, after availing the helpline Ambulance facility to shift the injured to the hospital. 23. The evidence of PW7 is that she is the Ward Member from 2005 onwards and during 2009 also she was the Ward member of the area where the deceased and the appellant were residing. The deceased as well the appellant are persons known to her and they were residing on the western side very close to her residence. According to her, quarrels used to take place between the husband and wife and whenever the deceased approached her with complaints that the appellant assaulted her, she intervened in the matter. On the fateful day at about 7 p.m. on hearing the hue and cry of the deceased, she rushed to her residence and found her naked in a severely burnt condition and somebody had poured water to set off the fire. On being enquired, the deceased revealed that the appellant had poured Kerosene over her body and set her ablaze. It was told to her that she had gone to the Prawn Peeling factory for her daily work and when she returned the appellant had brought 'Biriyani' for her and after taking the same he made her to lie down on the cot. Then he told that they are alone and there is no meaning for their life and so they together could die. Then he told that they are alone and there is no meaning for their life and so they together could die. By saying it, he suddenly poured Kerosene over her body and set her ablaze. PW7 along with assistance of her mother brought a sheet and covered her and made her to lie down on a plantain leaf on the back side verandah of the house and informed the police. The police came with an Ambulance and she was shifted to the hospital for treatment. In short, PW7 had deposed before the court that it was told to her by the deceased that the appellant had poured kerosene over her body and set her ablaze. PW7 asserted that the deceased was repeating the same and also told that the appellant used to harass her to bring money from her house. According to her, the life of the deceased with the appellant was not happy. She has admitted in cross-examination that the previous day of the incident was 'Vishu' and in the evening she found the deceased and the appellant together lighting crackers as part of the celebration of 'Vishu'. But she maintained that the life of the deceased with the appellant was not at all happy as he used to torture her for money. Even then the deceased used to return to his house, is the testimony. 24. PWs. 8, 9, 10 and 11 are the neighbors gathered upon hearing the hue and cry of the deceased and they helped to extinguish the fire and to remove her to the hospital. It is revealed from the evidence of the people from the neighborhood who were examined as mentioned above, that all the while the deceased even in her distress and pitiable condition have repeated that the appellant poured Kerosene over her body and set her ablaze. 25. PW12 is the Medical Technician attached to the “Accident Helpline Unit”, Aroor. He reached the spot as informed by the Police of the Aroor station with the Ambulance attached to the helpline unit. 25. PW12 is the Medical Technician attached to the “Accident Helpline Unit”, Aroor. He reached the spot as informed by the Police of the Aroor station with the Ambulance attached to the helpline unit. According to him he along with the driver of the Ambulance as well the police personnel helped to shift her to the Hospital and brought her to the casualty of the General Hospital, Ernakulam by about 9.45 p.m. The deceased was in a severely burnt condition and she was crying on the way to the hospital and on being enquired, she revealed that her husband had poured kerosene over her body and set her ablaze. The veracity of declaration of the deceased to these witnesses on the material point that 'her husband poured Kerosene and set ablaze' is not at variance, but is consistent. At any rate it cannot be treated as an insinuation levelled against the appellant by the deceased. All these witnesses successfully stood the piercing cross-examination conducted by the learned counsel for the appellant. It is significant to note that in Shudhakar v. State of M.P. [ (2012) 7 SCC 569 ] there were three dying declarations recorded at different point of time by different persons, still the Hon'ble Supreme Court accepted and made it as the basis for conviction holding that the second and third dying declarations are authentic, voluntary and duly corroborated by witnesses. 26. PW14 who rushed to the place of occurrence on hearing the hue and cry of the deceased was told by one Biju that the appellant had fled away from there after setting fire to the deceased and that he was chasing the appellant so as to catch him. PW13 also accompanied PW14, but the appellant entered into an uninhabited house and disappeared and as it was dark in the night they could not enter into that house and conduct a search for him. Ofcourse, the prosecution has a case that Biju was the neighbour who chased the appellant when he fled away from the place of occurrence after committing the offence. But the prosecution had failed to examine him, though he was a material witness to prove the prosecution case. But it is significant to note that nothing has been brought out to disbelieve the version of PW14 that he chased the appellant, who fled away from the place of occurrence after the incident. But the prosecution had failed to examine him, though he was a material witness to prove the prosecution case. But it is significant to note that nothing has been brought out to disbelieve the version of PW14 that he chased the appellant, who fled away from the place of occurrence after the incident. It is also pertinent to note that, from the evidence tendered by the neighbours of the appellant and the deceased, the appellant was found along with the deceased on the fateful day that too in the evening and he left the place immediately after the incident. 27. PW21 is another material witness examined by the prosecution to prove its case. According to her, at about 8'O clock in the night the appellant came to her residence to meet her husband, who is a social worker. He waited there till her husband reached home and he told that the deceased had poured Kerosene over her body and set fire. When they asked, then why he left the place without attempting to save her from fire, he replied that he was frightened on seeing it and so he did not stay back there. The strange reply of the appellant made her husband suspicious and so he called an autorickshaw and directed the driver to take the appellant to the police station. 28. PW22, her husband also deposed in the same line and he asserted that he felt something unusual when he talked with the appellant and so he called an autorickshaw and sent him to the police station. But the prosecution has no case that the appellant went to the police station as instructed by PW22. So also the prosecution has not examined the autorickshaw driver to prove that PW22 had sent the appellant to the police station in his autorickshaw. It is not discernible from the records why the autorickshaw driver was not examined by the prosecution. But the flaw in this regard is not materially affecting the other evidence adduced by the prosecution to prove the offence. 29. From Ext.P16 Arrest Memo it is evident that the appellant was arrested by PW38 from a place near the Railway Station, Cherthala, on 14.4.2009. Ext.P17 is the Inspection Memo. But the flaw in this regard is not materially affecting the other evidence adduced by the prosecution to prove the offence. 29. From Ext.P16 Arrest Memo it is evident that the appellant was arrested by PW38 from a place near the Railway Station, Cherthala, on 14.4.2009. Ext.P17 is the Inspection Memo. This circumstance alone is not sufficient to discredit or disbelieve PW21 and PW22, that the appellant approached them after the incident, but what is worthy of notice is his presence at the time of occurrence and at the place of occurrence. 30. Ext.P8 Scene Mahazar was prepared by PW37 at 10.30 a.m. before the death of the deceased. Ext.P7 Scene Plan would present a vivid picture of the place of occurrence which was the residential house of the deceased and the appellant. It is a small house with four rooms facing towards east. There are doors on the eastern and western sides of the house. The exact place of occurrence is the bed room on the south western side of the residential house. PW37 inspected the place of occurrence along with PW32 the Scientific Assistant attached to the Forensic Science Laboratory Trivandrum (Scientific Assistant, DCRG, Alapuzha) and PW33 the Finger print Expert. PW37 collected MO1, MO2 series and MO4 from the place of occurrence with the assistance of the finger print expert. The finger prints found in MO1 bottle were also lifted for examination and the photographs were developed with the assistance of PW34 Photographer and reported in Ext. P9 Report. PW33 asserted that on examination of the finger prints found in MO1 bottle collected from the place of occurrence was found identical and matched with the admitted finger prints of the appellant forwarded for examination. Presence of kerosene was detected in MO1 bottle on examination in the Forensic laboratory. Ext P9 is the report of the Scientific Assistant which stands proved by PW32. Ext.P7 and P8 would indicate the location of the place of occurrence and the nearby residence of the witnesses who rushed to the spot on hearing the hue and cry of the deceased. As the residences of the witnesses are nearby, the possibility of the witnesses reaching the scene of occurrence on hearing the scream of the victim out of pain, is also discernible from Exts.P7 and P8. 31. As the residences of the witnesses are nearby, the possibility of the witnesses reaching the scene of occurrence on hearing the scream of the victim out of pain, is also discernible from Exts.P7 and P8. 31. It is pointed out by the learned Public Prosecutor that the appellant had admitted before the court when he was questioned under section 313 Cr.P.C. that he went to the residence of PW21 and PW22 at about 8 p.m. on the date of the incident and told that the deceased herself had set fire. So his presence at the residential house of the deceased on the date of the incident had been admitted by him. The learned Public Prosecutor has argued that Section 106 of the Evidence Act is applicable in the case though the initial burden to establish the prosecution case is upon the prosecution. By virtue of Section 106 of the Evidence Act, the inmates of the house where the incident occurred, have to explain how the incident had happened. The incident happened in the secrecy of the residential house of the deceased that too in the bed room of the deceased and the appellant. It has clearly come out that they were alone residing in the house and nobody else was present at the time of the incident. His admission recorded under Section 313 Cr.P.C indicates that he left the place without offering any help to the deceased or did any positive act to extinguish the fire on her and it remain as a strong circumstance to cast serious doubt on him, especially when the dying declaration stands proved as genuine. 32. The learned defence counsel had placed reliance on the decision in Nagaraj v. State represented by Inspector of Police, Salem Town, Tamil Nadu, (2015) 4 SCC 739 of the Supreme Court, to argue that the admission of the appellant is of no consequence as the burden to prove the case is of the prosecution. The decision reads as follows; “Having made this clarification, refusal to answer any question put to the accused by the Court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of guilt on this score. The decision reads as follows; “Having made this clarification, refusal to answer any question put to the accused by the Court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the Statements under Section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not correct in drawing an adverse inference against the Accused because of what he has stated or what he has failed to state in his examination under Section 313 CrPC.” Ofcourse, the burden of proof is always on the prosecution and the appellant is entitled to the benefit of reasonable doubt. Here, the trend of the evidence adduced fully substantiate the case of the prosecution. It has also come out in evidence that the appellant suffered no burn injuries. If a wife had set fire by herself by pouring Kerosene over her body, it is inconceivable and unbelievable that the husband who is very much present in the house, flee away from the place of occurrence out of fear, without attempting to save his wife. At least he would attempt to seek the attention of the neighbours realizing the gravity of the situation. At least he would attempt to seek the attention of the neighbours realizing the gravity of the situation. It is true that in a criminal case no conviction can be based on mere possibilities; the prosecution has to prove the guilt of the accused beyond any reasonable doubt. However, the fact that the appellant as well the deceased alone were residing in the house and the appellant was found in the company of the deceased just before the alleged incident by the neighbours; and his admission in S.313 statement, would establish the fact that he was very much present in the house when the alleged incident took place. The conduct of the appellant is inconsistent with the so-called innocence pleaded by him. The evidence on record is consistent on the aspect that he fled away from the place of occurrence without making any attempt to save his wife from the fire or to seek the help of the neighbours to extinguish the fire. There are strong circumstances against the appellant and it lend support to the prosecution case. As referred above, there is no contradiction or inconsistencies with regard to the dying declaration of the deceased on the material point. Even though there is some embellishment or exaggeration in the deposition of the parents of the deceased (PW1 and 2) that could only be treated as natural not affecting its credibility and it will not create doubt to think that an innocent person was falsely implicated. 33. Learned counsel for the appellant has argued that, no FIR was registered by the police personnel who reached the place of occurrence on getting information from PW7 and hence Ext.P12 cannot be treated as a valid one. It is true that PW35 the A.S.I. of Aroor Police Station reached the residence of the appellant along with PW36, on getting information from PW7 and they made arrangements to shift the deceased to the hospital for treatment. In fact, the Ambulance was summoned by them and PW12 brought the Ambulance immediately and thus the deceased was shifted to the hospital. It is true that no FIR was registered then and there. But PW35 had accompanied the deceased to the hospital to provide treatment to her and immediately after admitting her in the hospital the statement of PW1 was obtained and on that basis the FIR was registered. It is true that no FIR was registered then and there. But PW35 had accompanied the deceased to the hospital to provide treatment to her and immediately after admitting her in the hospital the statement of PW1 was obtained and on that basis the FIR was registered. PW1 is the father of the deceased who reached the hospital immediately on getting information about the incident. It is not possible to infer that much delay had occurred in registering the FIR so as to presume that any malpractice or any kind of tampering by any of the witnesses has taken place so as to falsely implicate the appellant in the crime. There is satisfactory and justifiable explanation for not registering the FIR immediately on getting information about the incident. In fact there is no unexplained long delay to doubt the prosecution case. The statement of PW35 that the attempt of the police officials was to provide treatment to the deceased immediately, inspires confidence and that circumstance cannot be taken advantage to the appellant's case that the delay had caused prejudice to the appellant or created any kind of suspicion regarding the genesis of the prosecution case. 34. Ofcourse, the prosecution had failed to examine Biju who chased the appellant followed by PW 14. Like that PW20 and 21 had deposed that the appellant immediately after the incident came to their house and told that the deceased had attempted to commit suicide. On getting suspicion about the disclosure of the appellant, PW21 had sent him in an Autorickshaw to the police station. But the investigating agency has not cited the driver of the Autorickshaw as a witness, so as to corroborate the statement of PW20 and 21 that the appellant was sent directly to the police station. But the prosecution version is that the appellant was arrested from the nearby railway station. Ofcourse, these facts are certain minor infirmities in the prosecution case. But, it is well settled that even a faulty or defective investigation or draw backs of a case, when it does not shake the truthfulness of the case or affects the core of the prosecution case, cannot be taken as a ground to discard the prosecution case. 35. It is true that the prosecution has cited 54 Witnesses. The learned prosecutor (before the trial court) examined 40 witnesses. 35. It is true that the prosecution has cited 54 Witnesses. The learned prosecutor (before the trial court) examined 40 witnesses. The examination of some of the witnesses were to prove the very same point, which was not at all necessary. The public prosecutor is left with a discretion to pick and choose the witnesses to be examined to establish the prosecution case by using his/her wisdom. The investigating officers out of their anxiety may cite so many witnesses to prove a very same point; sometimes also omit to cite material and important witnesses. But the prosecutors who are conducting the case of the prosecution should exercise their discretion by picking the right person from the witness list and if material witnesses are not cited should file additional witness list before the court, as they are duty bound to help the court to find out the truth. It is well settled that a public prosecutor does not represent the police; he represents the State. But here the non-examination of the witnesses referred above and the above purported deficiencies do not detract from the veracity of the case. More over it is to be remembered that, evidence has to be weighed and not counted and quality of evidence is required to be judged before a court of law. 36. According to learned counsel for the appellant, the appellant is totally innocent of the allegations levelled against him and he has been falsely implicated in the case by the police. But it is significant to note that the presence of the appellant at the place of occurrence at the relevant time is proved beyond doubt. So also PW7, his immediate neighbour, had seen him along with the deceased engaged in lighting crackers in the evening of the ill-fated day. So he was last seen along with the company of the deceased is evident from the above described circumstances. 37. As mentioned above, the prosecution is mainly relying on the dying declaration of the deceased who had given a statement just before the death, when she was fully aware of the fact that the death is imminent and proximate. Though the dying declaration does not cast any suspicion, it has been corroborated by the evidence of PW15, PW7, PW8, PW19 and the other neighbours who rushed to the place of occurrence. Though the dying declaration does not cast any suspicion, it has been corroborated by the evidence of PW15, PW7, PW8, PW19 and the other neighbours who rushed to the place of occurrence. So also PW12 who had accompanied the deceased in the Ambulance had also heard the deceased telling that the appellant poured Kerosene and set her ablaze. It has also come out in evidence from the deposition of PWs.21 and 22 that after the incident the appellant approached them, but told that the deceased herself had poured Kerosene oil and set fire. Ext.P8 the scene mahazar prepared by PW37 in the presence of PW32 and 33 would also support the case of the prosecution that fire had caused damages to the articles in the cot in the bedroom (place of occurrence) and a portion of the cot was also damaged in fire. The burn injuries sustained by the deceased was mainly on her body except the back side and face. The evidence of the medical expert is that the burn injuries she suffered clearly shows that while she was in a lying position she caught fire. So even if there is some exaggerated version as pointed out by the learned counsel for the defence in the deposition of PW1 and PW2, her parents, the dying declaration recorded by PW18 as well PW15 inspires full confidence beyond any point of doubt and it appears as voluntary, consistent and credible without anything to doubt that it was a tutored one. So the dying declaration recorded by PW18 made by the deceased appears to be a conscious statement pointing out to the reason for her death and the certification of the doctor (PW18) that she was in a fit state of mind so as to make a statement regarding the reason for the injuries sustained by her which resulted in her death, is sufficient to conclude that the statement is genuine and real and is beyond any reasonable doubt or suspicion so as to sustain guilt of the appellant. Once the dying declaration is found to be genuine, voluntary, credible, consistent and untutored, it assumes great probative value and can form the sole basis for a conviction that the appellant had committed the offence of murder of his young wife by pouring Kerosene over her body and set her ablaze. 38. Once the dying declaration is found to be genuine, voluntary, credible, consistent and untutored, it assumes great probative value and can form the sole basis for a conviction that the appellant had committed the offence of murder of his young wife by pouring Kerosene over her body and set her ablaze. 38. The element of cruelty looms large as it has come out in evidence that the deceased was having slight mental retardation.He exploited her mental infirmity and thus made her to believe that they are together going to commit suicide and had given her last supper by serving her with the Biriyani which was brought by him and made her to lie down on the cot without any resistance from her side and then he poured Kerosene oil, set her ablaze to cause her death and fled away from the place of occurrence. His intention to commit the criminal act of murder is not covered by any exception to Section 300 of the Indian Penal Code and therefore, he is liable to be punished under Section 302 of IPC. We have meticulously scanned the evidence adduced in this case and we find that the learned Sessions Judge has appreciated all matters on record in its correct perspective, which calls for no interference. Therefore, we conclude that the appeal filed by the appellant is without any merits and it is liable to be dismissed. Hence the above appeal is hereby dismissed and the conviction and sentence imposed by the learned Sessions Judge against the appellant is hereby confirmed.