0

Dying declarations relied on by the Prosecution failed the test of its Acceptability and Reliability: Kerala High Court Acquits the man Convicted for the Offence of Uxoricide

Case title: Eby@Philip Ninan Vs State of Kerala

Case no.: Criminal Appeal No. 139 of 2017

Order on: April 2nd, 2024

Quoram: Justice A.K. Jayasankaran Nambiar and Justice Kauser Edappagath

Facts of the case

The case pertains to the offence of uxoricide. The appellant Eby @Philip Ninan and his wife were residing along with their two babies at Thrissillery. It was alleged that the appellant killed his 24-year-old wife Elsy (victim) by setting her on fire with a motive to sell their house and property which was previously refused by the deceased. The prosecution case was that the appellant with the intention of killing his wife poured kerosene on her head and set her ablaze. The victim, who suffered serious burns all over her body, was rushed to the Hospital, but eventually succumbed to the injuries.

The trial court, after a full-fledged trial, found the appellant guilty under Section 302 of IPC, mainly relying on the dying declaration given by the victim while she was undergoing treatment at the Hospital. The appellant contested this decision before the High Court.

Contentions of the Appellant

The Appellant contended that the injuries were not sustained by the victim in the manner and fashion alleged by the prosecution. Instead, he stated that the injuries were due to the act of self-immolation by the victim and he was not responsible for it. It was contended that the victim sustained burn injuries when she attempted to set herself ablaze by pouring kerosene on her body following a rift with the appellant. While the accused attempted to save her, he also suffered burn injuries. The Counsel defending these contentions submitted that dying declarations of the victim cannot be considered as the victim was not in a fit state of mind to make the statements.

Contentions of the Respondents

The Prosecutor presented two statements given by the deceased and her mother. The Victim in Ext. 3 stated that the appellant set her ablaze after pouring kerosene. Further her mother stated that as and when she reached the hospital on the night of the incident, the deceased told her that it was the appellant who set her on fire. The prosecution heavily relied on these two statements and regarded them as dying declarations falling under Section 32(1) of the Evidence Act to prove its case. Further, submitted that the materials on record indicated that the victim was conscious and capable of giving the statement, and hence the same cannot be discarded merely on the absence of independent medical evidence to prove the state of mind of the victim.

Legal Provisions

Section 302 of IPC – It deals with punishment for murder

Section 32 of Evidence Act – It deals with statements made by a deceased person regarding the cause of their death or the circumstances leading to it.

Issue – The Evidentiary value and the Reliability of the said Dying declarations were strongly assailed before the Bench.

Court’s Analysis and Judgement

The Court noted the statements given by the witnesses and examined the autopsy and other reports placed on record. Further, delving into Section 32 of the Evidence Act which deals with relevance of the statement (dying declarations) given by dead persons, drew a distinction between the English Law and Indian Law on the admissibility of such statements. While in the former, it is immaterial whether the person who makes it was or was not under the expectation of death at the time of declaration, the latter strictly provides that the declarant should have been in actual danger of death and should be expecting an imminent death.

The sanctity of dying declaration is justifies in twofold: firstly, ethically and religiously it is presumed that a person while at the brink of death will not lie, secondly from a public policy perspective it is to tackle a situation where the only witness to the crime is not available. However, the Court must ascertain that the statement of the deceased was not because of either tutoring or prompting or a product of imagination and is made in a fit state of mind. It thus, noted that these two factors play a vital role in admissibility and reliability of the dying declaration. The Court asserted that a dying declaration can be the sole basis of the conviction if it is made in a fit mental state, but in case of any suspicion as to its veracity it would be considered only as a piece of evidence.

The Court, analyzing the circumstances of the case in the light of above principles and various authorities ruled that none of the dying declarations relied on by the prosecution passed the test of its acceptability and reliability and as such there is no convincing evidence to prove that the victim was in a fit state of mind when those declarations were made. Further, the statement of the deceased mother was termed as hearsay which is inadmissible. The Kerala High Court thus held that the evidence of the witnesses on record were insufficient to prove the guilt of the appellant and extended the benefit of doubt to him. Therefore, it set aside the impugned order of the Trial Court and acquitted the appellant. The Court through this decision cleared the line on the interpretation of Section 32 and broadly determined the factors mitigating the reliability and admissibility of dying declarations.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Reviewed by – Keerthi K

Click here to view the Judgement

0

S. 12 of Kerala Anti-Social Activities (Prevention) Act, 2007 operates prospectively in regard to period of detention: Kerala High Court

Case Title: Prabhulla P. v. State of Kerala & ors.

Case No: WP(CRL.) No. 852 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE A.MUHAMED MUSTAQUE & HON’BLE MRS. JUSTICE SHOBA ANNAMMA EAPEN 

Facts of the Case

Initially, the detenu was detained invoking provision of the KAAPA in the year 2009. The last prejudicial activity was committed by the detenu on 15.11.2022 and he was arrested on the same day. The preliminary report was filed by the Station House Officer on 22.12.2022. The order was issued only on 10.04.2023. The detenu is under detention since 03.05.2023. The final report in Crime No.1483/2022 was filed on 20.06.2023.

The Counsel for the petitioner submitted that, based on amendment under Section 13 of the Narcotic Drugs and Psychotropic Substances Act, the detenu cannot be detained by operation of amended provision for a period of one year, in view of the fact that the earlier detention was suffered by him, was based on un-amended provision under Section 12 of the KAAPA.

Issues

Whether detention order can be passed under Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as “the KAAPA”) detaining a person beyond six months in a case where such a detenu suffered detention prior to the amendment to Section 12?

Legal Provisions

Before the amendment, the Section 12 of the KAAPA reads as:

 “12. Maximum period of detention-The maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under Section 10, shall not exceed six months from the date of detention.”

After the amendment in 2014, the Section 12 of the KAAPA reads as:

“12. Maximum period of detention – In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend upto six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.”

Court’s analysis and decision

Section 12 of the KAAPA would operate only prospectively in regard to the period of detention. Earlier detention order was in the year 2009, that cannot be taken into account for imposing maximum one year detention after 31.12.2014.

There is no explanation for the considerable delay of five months in passing the detention order. The impuged order is set aside. The petitioner is ordered to be released forthwith, if it is not otherwise required under law.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Afshan Ahmad

Click here to read the judgement

0

The Kerala High Court held that unless shown differently, a blank check will be assumed to be written for the payment of a debt

Title: P.K. Uthuppu v. N.J. Varghese & Anr.
Decided on: 07 November, 2023

+ CRL. REV. PET No. 1374 of 2010

CORAM: HON’BLE Justice Sophy Thomas
Introduction

The Kerala High Court ruled that, even in the situation of a voluntarily issued blank check, the presumption under Section 139 of the Negotiable Instrument Act (NI Act) that a check was given to settle debt or liability is still relevant.

Facts of the Case

A guy who had been found guilty of check bouncing under Section 138 of the NI Act filed a revision petition, which the High Court was now deliberating over. The revision petitioner was charged with defaulting on a debt of Rs 4 lakh by writing a check without making sure he had enough money in his bank account. Due to inadequate funds, the check bounced, resulting in a lawyer’s notice from the lender and a Section 138 of the NI Act complaint when the borrowed amount was not returned in spite of the notice. The accused-petitioner was declared guilty by the trial court. A court of appeals maintained the conviction but lowered the punishment.

Courts analysis and decision

The petitioner was found to have neglected to present any documentation proving he had obtained a car loan from the complainant’s financial institution, the court said. However, the Court determined that there was proof that he had taken out a rupees 4-lakh personal loan, as stated by the complainant. The Court further observed that the petitioner for revision had acknowledged that he had provided the complainant a signed check voluntarily. Accordingly, the complainant was given the benefit of the doubt under Section 139 of the NI Act, according to the High Court. In order for him to serve his time and pay the fine, the High Court dismissed the revision petition and ordered him to appear in person before the trial court.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Hargunn Kaur Makhija

Click here to view your judgement

0

The Kerala High Court held that organ donation cannot be assumed to involve exploitation just because the donor is from a low-income background.

Title: Ramachandran P v. State of Kerala
Decided on: 06 November, 2023

+ WP(C) NO. 35672 OF 2023

CORAM: HON’BLE Justice Devan Ramachandran
Introduction

According to a recent ruling by the Kerala High Court, the District Level Authorization Committee (DLAC) cannot refuse permission for organ donation on the grounds that the donor was likely taken advantage of because she came from a low-income area.

Facts of the Case

The High Court heard an appeal to the DLAC order that stated the donor (the second petitioner) is not giving the organ to the donee (the first petitioner) out of charity. In order to obtain DLAC approval for organ donation, the donor and donee went before the court.  The petitioner’s attorney told the court that the donor’s primary motivation for donating the kidney was her love and affection for the donee. It was further contended that prior to the DLAC, the donor’s brother and spouse, among other family members, had made it apparent that the organ was being donated out of pure charity. Conversely, Government Pleader said that the donor’s and her family members’ comments were inconsistent. Additionally, it was stated that because the donor came from a low-income neighbourhood, extra precautions needed to be taken to make sure she wasn’t taken advantage of.

Courts analysis and decision

As mentioned by DLCA, the Court declared that it was unable to identify any discrepancies in the donor’s and her family members’ statements. It stated that although the donor was not officially married, she had been cohabiting as husband and wife for the previous sixteen years with a man named Manoj. The Court discovered that Manoj had been the donee’s driver since 2006 and that, despite the donee’s relatives’ opposition to their relationship, he had assisted them in finding housing. It stated that because of an earlier injury, Manoj was unable to donate his organs. The Court determined that the donee’s remarks demonstrated the donor’s affectionate and selfless intention to donate her organ. The writ petition was granted by the Court, who also instructed the DLAC to reexamine the case by referencing the parties’ certificate of selflessness.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Hargunn Kaur Makhija

Click here to view your judgement

0

The Kerala High Court held that even with “Sufficient Cause,” the party is not entitled to delay condonation as a matter of right

Title: Sathy M.P and Anr v. Sarasa and Ors
Decided on: 06 November, 2023

+ RP No. 497 of 2015

CORAM: HON’BLE Justice K. Babu
Introduction

The power of attorney holder, a chronic asthma patient undergoing treatment, was unable to file the review petition within the allotted period, therefore the Kerala High Court recently declined to excuse the 288-day delay.

Facts of the Case

The review petitioners requested a 288-day delay be excused from the court, citing the power of attorney holder’s severe asthmatic issues and related diseases since 2014, for which he was receiving home treatment from his daughter. They further claimed that because of his illness, the review petitions could only be submitted in May 2015, even though the corrected judgment had been issued to them in October 2014.

Courts analysis and decision

The Court concluded that a liberal interpretation of “sufficient cause” should be applied in order to ensure that substantial justice is served by reviewing Section 5 of the Limitation Act and many precedents. Nevertheless, it was stated that this would only be the case if the party in question could not be held accountable for their actions, indifference, or lack of sincerity. Whether or not adequate cause has been shown would depend on the specific facts of each instance. The Court also determined that there would be no straitjacket formula in this context. In this case, the court found that neither the review petitioners’ nor their attorneys’ papers had been presented to the court to suggest that they were inconvenienced or found the prosecution of the case onerous, nor had they offered any justification for the 288-day wait.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Hargunn Kaur Makhija

Click here to view your judgement

1 2