Point of Law: Kidnapped and Murder – Conviction set aside - Appellant is justified in pointing out lacunae in investigation, but benefit of faulty investigation cannot be given to accused especially, when prosecution has produced cogent and convincing evidence against the accused persons

JUDGMENT :

Vinod Chandran, J.

A woman, married, with a child, suffered 60% burns and succumbed after about seven days. It was no accident and either she immolated herself or the accused did it. Whoever it be, the cause allegedly is retaliation for not reciprocating the love of one for the other. The prosecution case is that the victim, with whom the accused had prior acquaintance from the hospital where they were working, was abducted and taken to his house. Inside his house, he proposed to her and she declined, which resulted in the accused pouring petrol over her and setting her ablaze. The defence is that the deceased set herself ablaze, inside the parental house of the accused since he resisted her advances and demands to get into a proper marriage; a vengeance proper.

2. Sri.P.Vijayabhanu, learned Senior Counsel instructed by Smt. Pooja Pankaj appeared for the appellant and Smt.S.Ambikadevi, learned Special Government Pleader [Atrocities against Women and Children and Welfare of Women and Children] appeared for the State.

3. Learned Senior Counsel took us through the entire evidence and pointed out that the occurrence witnesses turned hostile. Yet another aspect was the dying declarations made, as evidenced in Ext.P18 wound certificate of the deceased and the testimony of PW23, the husband of the accused and PW24, a co-worker of the deceased. As far as Ext.P18 is concerned, there are interpolations and PW15, the doctor who examined the deceased first, clearly deposed that she was unconscious. There was no challenge to the statement in cross-examination made by the prosecution. PW3 and PW4, who had seen the victim immediately after the burn injury, testified that she was unconscious. PW9, the brother of the victim, does not speak of any dying declaration. As far as the testimony of PWs.23 and 24, the condition of the victim who suffered 60% burns has not been proved by the prosecution. The victim suffered burns on 21.02.2009, to which she succumbed on 28.02.2009. She was throughout admitted to the Medical College Hospital [MCH], Kozhikode. Neither the treatment chart nor a doctor's certificate was produced to show that she was mentally and physically fit to make the dying declaration. PW23 and PW24 did not speak about the dying declaration to the police when the 161 statement was recorded.

4. The prosecution attempted to establish the crime, including abduction, by witnesses who spoke of the accused informing them that the victim was in his custody at his house. Though two mobile phones were alleged to have been seized, it is not clear from whom it was seized or to whom they belonged. The Investigating Officer [IO] made absolutely no effort to take out the call details or even establish the mobile numbers of the accused, the deceased and her husband. A car was seized on the premise that the accused abducted the victim in the said car. Not even the ownership was proved. There is inconsistent evidence as to, for what reason the victim left the hospital in the afternoon. In any event, the prosecution case is that she left voluntarily from the hospital and she boarded a KSRTC bus. The bus driver turned hostile and nobody has seen the victim together with the accused at any time before the occurrence. It is not clear as to what was the substance used on the victim and who bought it. The learned Senior Counsel would assertively urge that suspicion however grave cannot take the place of proof and unless the circumstances provide an unbroken chain linking the accused to the crime, that too, beyond any reasonable doubt, there could be no conviction under the offences charged under Sections 366 and 302 IPC. Sri.Vijayabhanu relies on the decisions in Surinder Kumar v. State of Haryana [(2011) 10 SCC 173], Naresh Kumar v. Kalawati & Ors. [2021 SCC OnLine SC 260] and Jayamma & Anr. v. State of Karnataka [2021 SCC OnLine SC 369] to seriously assail the dying declaration relied on by the prosecution.

5. Learned Special GP points out that the e