Kerala High Court
Thomas K.D @ Sunny vs State Of Kerala on 9 June, 2026
2026:KER:46401
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 9TH DAY OF JUNE 2026 / 19TH JYAISHTA, 1948
CRL.A NO. 258 OF 2016
ORDER DATED 08.08.2012 IN CP NO.57 OF 2012 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -II,HOSDRUG
JUDGMENT DATED 10.02.2016 IN SC NO.203 OF 2013 OF ADDITIONAL SESSIONS COURT
- III, KASARAGOD
APPELLANT/ACCUSED:
THOMAS K.D @ SUNNY
AGED 46 YEARS
S/O.DEVASYA, KAROTTE HOUSE,
KARUVANKAYAM,
WEST ELARI VILLAGE,
KASARAGOD DISTRICT.
BY ADV SRI.A.ARUNKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA,
ERNAKULAM,
KOCHI 31.
BY SMT. SAREENA GEORGE P., SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.06.2026,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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'C.R.'
JUDGMENT
Dated this the 09th day of June, 2026
The sole accused in S.C. No.203/2013 on the files of the
Additional Sessions Court – III, Kasargod, has filed this appeal,
under Section 374(2) of the Criminal Procedure Code [hereinafter
referred as ‘Cr.P.C‘, for short] challenging the conviction and
sentence imposed by the Additional Sessions Judge, against him
as per the judgment dated 10.02.2016. The State of Kerala,
represented by the Public Prosecutor is arrayed as the
respondent herein.
2. Heard the learned counsel for the appellant/accused
and the learned Public Prosecutor in detail. Perused the verdict
under challenge and the records of the Additional Sessions Court.
3. In this case, on committal of suicide by the wife of the
appellant/accused at 8.30 p.m., on 02.02.2012, a crime was
registered alleging commission of offences punishable under
Section 498A and 306 of the Indian Penal Code [hereinafter
referred as ‘IPC‘, for short] on the allegation that the
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appellant/accused subjected his wife to mental and physical
harassment and persuaded her to commit suicide by pouring
kerosene on her body.
4. The learned Additional Sessions Judge recorded
evidence and completed trial. During trial, PWs 1 to 9 were
examined, Exts.P1 to P13 and MO1 and MO2 were marked on the
side of the prosecution. Even though, the appellant/accused was
given opportunity to adduce defence evidence after questioning
him under Section 313(1)(b) of the Cr.P.C., he did not opt to
adduce any defence evidence. Finally, the trial court found, that
the appellant/accused committed the offence punishable under
Section 498A of the IPC, while acquitting for the offence under
Section 306 of the IPC. Accordingly, the appellant/accused was
sentenced to undergo simple imprisonment for a period of two
years and to pay a fine of Rs.25,000/-, and default imprisonment
for a further period of six months also was imposed.
5. The learned counsel for the appellant/accused argued
that in this case, the crucial witness, who is none other than the
daughter of the appellant/accused and the deceased, when
examined before the Court, though admitted Ext.P1 complaint
lodged by her, turned hostile to the prosecution. Similarly, PWs 2
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and 3, the neighbours also turned hostile to the prosecution.
Apart from Ext. P13 dying declaration and the evidence of PW9,
no other evidence was available and the Additional Sessions
Court relied on this evidence to enter into conviction for the
offence punishable under Section 498A of the IPC. It is submitted
further that even though PW9 given evidence that the mental
capacity of the deceased in Ext.P13 statement, which was
certified by the doctor, but the doctor was not examined and the
same is fatal to the prosecution. On the above grounds, the
learned counsel for the appellant/accused pressed for
interference in the verdict impunged to reverse the same.
6. The learned Public Prosecutor zealously supported the
verdict on finding that the evidence of PW9 supported by Ext.
P13, the dying declaration of the deceased alone is sufficient to
prove the offence punishable under Section 498A of the IPC and
therefore, the conviction and sentence imposed are liable to be
sustained.
7. Having apprised the rival submissions, the points to be
determined are :
1. How far dying declaration can be the sole
basis of conviction ?
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2. Whether the Additional Sessions Court is
justified in finding that the accused committed the
offence under Section 498A of the IPC?
3. Whether the verdict of the Additional Sessions
Court would require interference?
4. Order to be passed?
8. The case of the prosecution is that the appellant/accused
subjected his wife to mental and physical harassment, and
persuaded her to commit suicide by pouring kerosene on her body.
9. PW1 who was examined is none other than the daughter
of the deceased and the appellant/accused. During chief
examination, she admitted lodging of a complaint when her mother
committed suicide on 02.02.2012, by admitting Ext.P1 as the
complaint. But she denied the allegation in Ext.P1 that her mother
committed suicide because of the harassment at the instance of her
father. Accordingly, she was declared hostile. When the Public
Prosecutor asked questions under Section 154 of the Evidence Act,
she had answered that, now she had been residing along with her
father.
10. Coming to PW2, PW2 given evidence supporting Ext.P2
mahazar and regarding the occurrence, as alleged by the
prosecution, but she also turned hostile to the prosecution in the
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matter of cruelty alleged to be committed by the appellant/accused
and also the instigation at the instance of the appellant/accused
against the deceased in the matter of suicide of her mother. PW3,
the independent witness also declared as hostile in this regard. In
this matter, the evidence relied on by the learned Additional Sessions
Judge to find commission of offence punishable under Section 498A
of the IPC, by the appellant/accused is the evidence of PW9
supported by Ext.P13 dying declaration.
11. In as much as the legal sanctity of dying declaration is
concerned, the law is well settled. In the decision in Jayamma v.
State of Karnataka reported in [2021 ICO 649], the Apex Court
decided the evidentiary value of dying declaration and the
ingredients necessary to accept the same as the sole basis of
conviction. Paragraph Nos.14 and 15 of the said decision are
extracted as under:
“14. Before we advert to the actual admissibility and credibility of
the dying declaration (Ex.P-5), it will be beneficial to brace
ourselves of the case-law on the evidentiary value of a dying
declaration and the sustenance of conviction solely based
thereupon. We may hasten to add that while there is huge wealth of
case law, and incredible jurisprudential contribution by this Court on
this subject, we are consciously referring to only a few decisions
which are closer to the facts of the case in hand. We may briefly
notice these judgments.
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A. In P.V. Radhakrishna. v. State of Karnataka (2003) 6
SCC 443 p. 16:: 2003 ICO 831, this Court considered
the residuary question whether the percentage of burns
suffered is a determinative factor to affect the credibility
of a dying declaration and the probability of its
recording. It was held that there is no hard and fast
Rule of universal application in this regard and much
would depend upon the nature of the burn, part of the
body affected, impact of burn on the faculties to think
and other relevant factor.
B. In Chacko v. State of Kerala (2003) 1 SCC 112 p. 3,
4 :: 2002 ICO 658, this Court declined to accept the
prosecution case based on the dying declaration where
the deceased was about 70 years old and had suffered
80 per cent burns. It was held that it would be difficult
to accept that the injures could make a detailed dying
declaration after a lapse of about 8 to 9 hours of the
burning, giving minute details as to the motive and the
manner in which he had suffered the injuries. That was
of course a case where there was no certification by the
doctor regarding the mental and physical condition of
the deceased to make dying declaration. Nevertheless,
this Court opined that the manner in which the incident
was recorded in the dying declaration created grave
doubts to the genuineness of the document. The Court
went on to opine that even though the doctor therein
had recorded “patient conscious, talking” in the wound
certificate, that fact by itself would not further the case
of the prosecution as to the condition of the patient
making the dying declaration, nor would the oral
evidence of the doctor or the investigating officer, made
before the court for the first time, in any manner
improve the prosecution case.
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C. In Sham Shankar Kankaria v. State of Maharashtra
(2006) 13 SCC 165 p. 10, 11 :: 2006 ICO 11846, it was
re-stated that the dying declaration is only a piece of
untested evidence and must like any other evidence
satisfy the Court that what is stated therein is the
unalloyed truth and that it is absolutely safe to act upon
it. Further, relying upon the decision in Paniben v. State
of Gujarat (1992) 2 SCC 474 p. 18:: 1992 ICO 144
wherein this Court summed up several previous
judgments governing dying declaration, the Court in
Sham Shankar Kankaria (Supra) reiterated::
(i) There is neither Rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration. (See Munnu Raja v. State of M.P.
[(1976) 3 SCC 104]);
(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration. (See State of U.P. v. Ram Sagar Yadav
[(1985) 1 SCC 552 :: 1985 ICO 232 and Ramawati
Devi v. State of Bihar [(1983) 1 SCC 211 :: 1983 ICO
339]);
(iii) The Court has to scrutinise the dying declaration
carefully and must ensure that the declaration is not
the result of tutoring, prompting or imagination. The
deceased had an opportunity to observe and identify
the assailants and was in a fit state to make the
declaration. (See K. Ramachandra Reddy v. Public
Prosecutor [(1976) 3 SCC 618 :: 1976 ICO 453]);
(iv) Where dying declaration is suspicious, it should not
be acted upon without corroborative evidence. (See
Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 :: 1973
ICO 75]);
(v) Where the deceased was unconscious and could
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never make any dying declaration the evidence with
regard to it is to be rejected. (See Kake Singh v. State
of M.P. [1981 Supp SCC 25]);
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. (Sec Ram Manorath
v. State of U.P. [(1981) 2 SCC 654 :: 1981 ICO 68]);
(vii) Merely because a dying declaration does not
contain the details as to the occurrence, it is not-to be
rejected. (See State of Maharashtra v. Krishnamurti
Laxmipati Naidu [1980 Supp SCC 455]);
(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of
the statement itself guarantees truth. (See Surajdeo
Ojha v. State of Bihar [1980 Supp SCC 769:: 1979 ICO
315]);
(ix) Normally the court in order to satisfy whether the
deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the
eyewitness has said that the deceased was in a fit and
conscious state to make the dying declaration, the
medical opinion cannot prevail. (See Nanhau Ram v.
State of M.P. [1988 Supp SCC 152 : 1988 ICO 429]);
(x) Where the prosecution version differs from the
version as given in the dying declaration, the said
declaration cannot be acted upon. (See State of U.P. v.
Madan Mohan [(1989) 3 SCC 390 : 1989 ICO 391]);
(xi) Where there are more than one statement in the
nature of dying declaration, one first in point of time
must be preferred. Of course, if the plurality of dying
declaration could be held to be trustworthy and reliable,
it has to be accepted. (See Mohanlal Gangaram Gehani
v. State of Maharashtra [(1982) 1 SCC 700 :: 1982 ICO
84])
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15. It goes without saying that when the dying declaration has been
recorded in accordance with law, and it gives a cogent and plausible
explanation of the occurrence, the Court can rely upon it as the
solitary piece of evidence to convict the Accused. It is for this reason
that Section 32 of the Evidence Act, 1872 is an exception to the
general Rule against the admissibility of hearsay evidence and its
Clause (1) makes the statement of the decease admissible. Such
statement, classified as a “dying declaration” is made by a person as
to the cause of his death or as to the injuries which culminated to his
death or the circumstances under which injuries were inflicted. A
dying declaration is thus admitted in evidence on the premise that
the anticipation of brewing death breeds the same human feelings as
that of a conscientious and guiltless person under oath. It is a
statement comprising of last words of a person before his death
which are presumed to be truthful, and not infected by any motive or
malice. The dying declaration is therefore admissible in evidence on
the principle of necessity as there is very little hope of survival of the
maker, and if found reliable, it can certainly form the basis for
conviction.”
12. Reading Ext.P13, the same would recite that on the
date of occurrence, in between 8.30 p.m. and 9.00 p.m, the
husband reached her residence in an intoxicating stage and told
something to her and when she replied, the husband disliked it
and he beat her and when he beat her continuously, she poured
kerosene on the body and put fire.
13. PW9 deposed in support of Ext.P13 and according to
PW9, while she was working as Judicial First Class Magistrate,
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Hosdurg – II, at 11. a.m., on 04.02.2012, she recorded the
statement of the victim, on getting medical advice from
Dr.Swapna, the duty Medical Officer of the District Hospital,
Kanhangad, where the victim was admitted, certifying that the
patient was fit to give statement verbally. Thus, the statement of
the victim, Lissy Kurian Thomas was recorded and as per the
statement, the victim reiterated what is stated in Ext.P13. In fact,
in the instant case, relying on these evidences, the learned
Additional Sessions Judge found commission of offence under
Section 498A of the IPC by the appellant/accused.
14. ‘Cruelty’ under Section 498A of the IPC reads as
under:-
“498A. Husband or relative of husband of a woman
subjecting her to cruelty.–
Whoever, being the husband or the relative of the husband
of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend to
three years and shall also be liable to fine.
Explanation.– For the purpose of this section, “cruelty”
means–
(a)any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury
or danger to life, limb or health (whether mental or physical)
of the woman; or
(b)harassment of the woman where such harassment is with
a view to coercing her or any person related to her to meet
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any unlawful demand for any property or valuable security or
is on account of failure by her or any person related to her to
meet such demand.”
The explanation (a) to Section 498A defines ‘cruelty’ as any wilful
conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or
health, whether mental or physical of the woman. The allegation of
cruelty discussed above falls within the ambit of Explanation (a) to
Section 498A and therefore, the learned Additional Sessions Judge
rightly found commission of offence under Section 498A of IPC by
the appellant/accused.
15. Even though it is argued by the learned counsel for the
appellant/accused that as per the version of PW1, Lissy Kurian
Thomas committed suicide because of mental disorder, her evidence
is quiet insufficient to believe the mental disorder of Lissy Kurian
Thomas without support of cogent and convincing evidence. Since
the law is settled that (1) when the dying declaration directly relates
to the cause of death or the circumstances of the transaction that
resulted in death (2) the deceased must be of sound mind and
conscious when making the statement and (3) the statement is
voluntary, free from any coercion, tutoring or prompting, then the
same can be the sole basis of conviction.
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16. In the decision in Subramani v. State of Karnataka
reported in [2026 KHC 6184 : 2026 INSC 249], it is held that
once a doctor certifies the deceased was fit to make a statement,
the police officer’s contrary view that she was unconscious does not
discredit the declaration.
17. In view of the above discussion, the conviction imposed
by the learned Additional Sessions Judge for the offence punishable
under Section 498A of IPC is liable to be confirmed.
18. Regarding the sentence, the learned counsel for the
appellant/accused submitted that the appellant/accused is a person
who is looking after PW1 and another child and his detention in
custody will be fatal to their interest and canvassed maximum
leniency in the matter of sentence. Acting on this submission and in
the interest of justice, the sentence imposed can be reduced.
19. In the result, this criminal appeal is allowed in part. The
conviction under challenge is upheld. The sentence imposed by the
Additional Session’s Court is modified as under :-
The appellant/accused is sentenced to undergo
simple imprisonment for a period of three months and to
pay a fine of Rs.10,000/-, and in default of payment of
fine, to undergo simple imprisonment for a further period
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of one month. The appellant/accused is given set-off for
the period of sentence he had already undergone in
connection with this crime.
20. The order suspending sentence and granting bail to the
appellant/accused stands vacated, with direction to the
appellant/accused to appear before the Additional Sessions Court-
III, Kasargod forthwith, to undergo the modified sentence, failing
which, the Additional Sessions Court is directed to execute the
sentence, without fail.
Registry is directed to forward a copy of this judgment to the
Additional Sessions Court concerned, forthwith, for information and
compliance.
SD/-
A. BADHARUDEEN
JUDGE
DCS
