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CASE NO.:

Appeal (crl.) 627 of 2004

PETITIONER:

SREE VIJAYAKUMAR & ANR.

RESPONDENT:

STATE, BY INSPECTOR OF POLICE, KANYAKUMARI

DATE OF JUDGMENT: 13/05/2005

BENCH:

P.V.REDDI & P.P. NAOLEKAR

JUDGMENT:

JUDGMENT

P. VENKATARAMA REDDI, J.

Accused Nos. 1 & 2 in the Sessions case No. 91 of 1998

(on the file of the Additional Sessions Judge, Kanyakumari)

are the appellants in this appeal. They were prosecuted

along with two others for the murder of one Rajeswaran by

setting him on fire on the night of 21st July, 1994 at Palavilai

village. The victim was admitted into the Government

hospital, Nagercoil with 90% burn injuries and he died in the

hospital on 24.7.1994. The appellants and two others were

also charged for attempting to murder PW1\027the brother of

the deceased by stabbing him. The learned Sessions Judge

convicted A1 (1st appellant herein) for the offences

punishable under Section 302 and Section 324 read with 34

IPC. A2 (2nd appellant) was found guilty of the offence

punishable under Section 302. In addition, he was also

convicted under Section 324 IPC for causing injury to PW-1.

Both of them were therefore sentenced to life imprisonment.

A3 and A4 were found guilty under Sections 302 read with

Section 34 and Section 324 read with Section 34 IPC. On

appeal filed by the accused persons, the High Court of

Madras set aside the conviction of accused Nos. 3 & 4 under

Section 302 read with Section 34 IPC. Their conviction under

Section 324 read with Section 34 IPC was however

maintained. Appellants 1 & 2 were convicted for the offence

under Section 302 with the aid of Section 34 IPC and the

sentence of life imprisonment was confirmed. Their

conviction and sentence under Section 324 read with Section

34 was also confirmed. The first two accused have therefore

come forward with this appeal.

The case of the prosecution, as per the charge-sheet

and the evidence of prosecution witnesses, is as follows:

The four accused are brothers. The deceased

Rajeswaran and PWs 1 & 3 are also brothers. The accused

and the deceased are related to each other and they were

residing in the same lane. A dispute arose between the father

of the accused and the deceased and his family members in

connection with an electricity line passing through the father's

house of the accused. A civil suit was filed which ended in

favour of the family of the deceased. According to PW1, that

happened three years earlier. On account of the said dispute,

there were ill-feelings between the members of the two

families. On 21.7.1994, at about 7.30 p.m. when Rajeswaran

was going past the shop of the 2nd appellant Rajagopal to

purchase some articles from a nearby shop, the 1st appellant

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Vijaya Kumar came out of the shop of the 2nd appellant and

started abusing him and then took out a bottle and hit it on

the head of the deceased, as a result of which, the bottle

broke and the liquid spread over his body. A3 & A4 who were

the acquitted accused, caught hold of Rajeswaran and did not

allow him to move. At that moment, the 2nd appellant

Rajagopal picked up a lighted kerosene lamp from his shop

and threw it on Rajeswaran. Resultantly, Rajeswaran's body

caught fire and he rolled on to the ground. PW1\027the brother

of the deceased, who was in a shop, tried to go close to his

brother; however, the accused 1, 3 & 4 caught hold of him

and the 2nd accused (appellant No.2) stabbed him on the

chest and shoulder with a button knife. PW3, the younger

brother of PW1, who was at a nearby shop and some others

noticed the incident and rushed to the scene and raised

alarm. After the accused ran away, PW3 and PW4 took the

victims in an auto-rickshaw to Kuzhithurai Government

hospital. After first aid, they were taken to Kottar

Government hospital. By that time, it was 10.30 p.m. The

Head Constable (PW 12) attached to Kaliyakkavilai police

station came to the hospital at 11.30 a.m. and made

enquiries with the victim Rajeswaran about the incident. The

statement which he recorded, namely Ext.P3, was treated as

first information report. PW12 also examined A2 at the

hospital. PW8\027Dr. Vimala, the Medical Officer of Kuzhithurai

Government hospital, who examined the deceased and PW1

found 90% burn injuries on the body of the deceased. She

found a stab injury 2"x1" on the right side of the chest and

two other stab injuries on the back of PW1. She issued a

wound certificate in which she expressed the opinion that the

injuries were simple. The deceased as well as PW1 were

referred to the Government hospital, Nagercoil. It appears

that PW7, who was a Fire Officer, having received a

telephone message, went to the provision shop of the

accused No.2 and noticed fire at some portion of the shop.

After putting off the fire, he found A2 with injuries lying inside

the shop and took him to Kuzhithurai Government hospital.

PW8 examined him and found that there was a deep

lacerated injury 6" long 2" wide on the lateral aspect of the

left leg and another lacerated injury on the left thumb and

two abrasions. She opined that the injuries were simple in

nature. Then, A2 was referred to the Government hospital,

Nagercoil. PW8 found two abrasions on the anterior and

posterior aspect of right shoulder of accused No.4 as well.

PW8 also examined accused No.1 at about 9.10 p.m., found a

diffuse swelling behind left ear and a lacerated injury of

1"x5x5 cm between the left thumb and index finger and

treated him as out patient.

At about midnight time, the Judicial Magistrate,

Nagercoil (examined as PW2) having received requisition

from the Government Headquarters Hospital, proceeded to

the hospital and recorded the statement of the deceased

Rajeswaran at 12.30 a.m. which is in the nature of dying

declaration. This was done in the presence of the Doctor. It is

marked as Ext.P2 and it reads as follows:

"Today the 21.7.1994 at night 7'O clock when I

was on the way to shop for buying petals and

Aricanuts, suddenly Sree Vijayakumar hit the

bottle on my head, his younger brother Rajagopal

threw the fire on me. Fire caught on my body. In

connection with laying electric connection through

the space near their house, enmity arose among

us and a case was filed. That case was decided in

my favour and hence they did it. At the time of

the incident Gunasekharan and Jayapal extended

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help. When I ran away and fell down on the

ground and rolled, my brother Ambeeswaran tried

to help me and as such he also received burn

injuries. My another brother was attacked by

Rajagopal with a button knife."

In Ext.P2, there is an endorsement by the Doctor that

the patient was conscious and answering the questions. The

Magistrate obtained the thumb impression of Rajeswaran.

PW2 deposed that Rajeswaran was conscious and he

answered the preliminary questions put by him and then

only he recorded his statement.

Rajeswaran died in the morning hours of 24th July,

1994. The Inspector of Police\027PW14 conducted the inquest

of the deceased in the presence of panchayatdars and sent

the dead body for postmortem. Postmortem was conducted

by PW9\027the Civil Surgeon working at Kottar Government

Headquarters Hospital in the evening of 24th July. He took

out the skin from the body and preserved it in Sodium

Chloride solution for chemical analysis. Ext.P12 is the

postmortem report and Ext.P13 dated 25.12.1995 is the

opinion given by him after the receipt of skin test from the

Chemical Examiner according to which Rajeswaran died on

account of shock resulting from deep burn injuries. The

chemical examiner's report is Ext.P27. Petrol was detected

on the pieces of black lumps received from the Judicial

Magistrate, Kuzhithurai with his letter dated 10.10.1994.

There was a counter-complaint given by the accused

Rajagopal lodged at Kaliyakkavilai police station. In that

complaint, the deceased, PWs 1 & 3 and another, were

shown as the accused. The substance of the complaint was

that the accused came to his shop and insisted on giving

some articles on credit and on refusal, the deceased and

PW3 abused him leading to a quarrel and fight, in the course

of which PW1 inflicted injuries on him and when his brothers

arrived at the scene, one of the accused attacked them and

caused injuries. Crime was registered as No. 378 of 1994.

Surprisingly, the counter complaint was inquired into

by PW16-Inspector of Police after considerable delay, i.e., in

the year 1996. He submitted the final report (Ex.P28) to the

Judicial Magistrate on 16.02.1998. He found no truth in the

allegations made in the complaint lodged by the second

accused and he came to the conclusion that it was filed as a

counter-blast to the report of the deceased. It is also

surprising that the investigation even in regard to Cr.

No.377/94 giving rise to the present case went on for three

years and 4 or 5. Investigating Officers changed, though

the identity of accused was known and all of them were

arrested soon after the incident.

In reply to the questions put under Section 313

Cr.P.C., the appellants totally denied the incident and their

involvement.

Learned Senior counsel for the appellants contended

that the genesis of the incident has been suppressed by the

prosecution, that no action was taken to promptly inquire

into the counter complaint given by the accused; that the

appellants and another accused had received serious injuries

which remained unexplained by the prosecution witnesses,

that the evidence of the brothers of deceased who were

chance witnesses has been deliberately introduced to build

up the prosecution case and that it is highly improbable that

the incident had taken place in the manner in which it was

put forward by the prosecution. It is further contended that

the First Information Report based on the alleged statement

made by the deceased to Head Constable (PW12) is not

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acceptable as PW12 admitted that FIR was prepared after

consultation with the superior officers and that the contents

of the statement were not made known to the witnesses

who signed it. Referring to the dying declaration before the

Magistrate (PW2) it is submitted that it was highly doubtful

whether the patient who would have been administered

drugs to abate the pain would be in a position to make the

statement at midnight and that in any case no reliance can

be placed on it in the absence of examination of the doctor

testifying to the consciousness of the patient. It is finally

submitted that the appellants cannot be found guilty of the

offence under Section 302 and that there is no scope to

invoke Section 34 IPC.

The learned counsel appearing for the State while

refuting these contentions submits that there is trust-worthy

evidence of eye-witnesses apart from the dying declaration

recorded by the Magistrate and that there are no grounds to

interfere with the concurrent findings of fact. He submits

that petrol was detected on the skin of the deceased and

this fact goes to corroborate the prosecution version. As

regards the injuries, it is pointed out that the accused had

motive to cause harm to the deceased by reason of previous

enimity. It is then submitted that the injuries sustained by

the accused were simple in nature but in order to create

evidence, the two accused remained in hospital for a long

time\027which fact was adversely commented upon by the trial

court. Under the circumstances, it is contended that the

non-explanation of the simple injuries on the accused does

not affect the prosecution case. It is also submitted that the

appellants did not even put forward a case in conformity

with the complaint lodged by them on the date of incident.

The two eyewitnesses are brothers of the deceased.

According to them, they happened to be at the spot by

chance at the time when the incident took place. As per

PW1's version, he was returning after making purchase of

some provisions from the shop of Thomas whereas his

deceased brother was going towards the shop of Thomas.

He stated in the chief examination that when his brother had

reached the spot in front of the 2nd accused Rajagopal, the

1st accused Vijaya Kumar attacked his brother by hitting a

bottle on his head and the liquid therefrom spread over the

body. A3 & A4 (who were acquitted) restrained his brother

from moving. At that juncture, the 2nd accused Rajagopal

threw a burning kerosene lamp from the shop which ignited

the fire. Thereafter, his younger brother\027PW3 rushed to the

scene from another nearby shop and tried to put off the fire.

When he and his younger brother tried to rescue their

brother under flames, the 2nd accused stabbed him (PW1) on

his chest and shoulders with a knife. Thereafter, PW3 and

PW4 (PW4 declared hostile by the prosecution) took him and

his deceased brother to the hospital in an auto-rickshaw.

This is the version of PW1 in the chief examination. In the

cross examination, a somewhat different version was given

as regards the manner of attack. He stated that the accused

(four in number) followed his elder brother from east to west

and waylaid him. PW1 apparently tried to paint a picture of

planned attack by the four accused persons. But, no

reasonable inference of premeditated attack can be drawn

having regard to the facts and circumstances apparent from

the evidence on record. First of all, the involvement of A3

and A4 in the attack against the deceased was ruled out by

the trial Court and High Court. In the dying declaration, it

was not stated that any of the accused caught hold of the

deceased. Secondly, the pre-concerted attack, if it were

true, would not have happened in the manner in which PW1

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narrated. Breaking open the bottle containing some liquid

substance by hitting it on the head which did not even result

in any visible injury and A2 then picking up a lighted

kerosene lamp and 'throwing' it at him, do not support the

theory of planned attack with an intention to kill him. Such a

course of conduct is not consistent with the inference that

the two appellants were waiting to kill him. The fact that

the accused also suffered injuries which are not negligible

shows that there would have been some scuffle and

exchange of blows, but the details thereof are not

forthcoming.

Moreover, there are some circumstances casting a

doubt on the prosecution version of A1 pouring petrol on the

deceased by breaking the bottle in an unusual manner by

hitting it on the head of the deceased. The broken pieces of

glass bottle are supposed to have been recovered by the

Sub-Inspector of Police\027PW13 at the spot but he did not

depose as to how he identified it as the bottle used in the

course of attack. It is not his case that any witness had

pointed out the same. Above all, the prosecution version

that the liquid which came out of the bottle was petrol,

cannot be relied upon for more than one reason. The smell

of a common inflammable substance like petrol or kerosene

would have been easily sensed by the witnesses. Even the

Doctor\027PW9 could not find the smell of kerosene or petrol

or any other inflammable liquid on the body of the deceased.

In the dying declaration before the Magistrate, the deceased

merely stated that the 1st accused hit him on the head with

a bottle. No doubt, the Chemical Examiner's report\027

Ext.P28 reveals that he 'detected' petrol on the pieces of

black lumps sent to him in a paper parcel by the Judicial

Magistrate, Kuzhithurai. As seen from Ext.P26, the Inspector

of Police sent a requisition to the Judicial Magistrate for

sending the case properties mentioned therein for

examination by the Chemical Examiner on 10.10.1994 which

was nearly three months after the postmortem. Curiously,

there is no evidence to the effect that the items sent to the

Magistrate for onward transmission to the Chemical

Examiner were the same that were handed over to him by

PW9 and that they were sealed by the hospital authorities.

Though PW9 stated that the skin taken from the leg was

preserved in Sodium Chloride solution for chemical analysis,

he did not state that any seal was affixed thereon and

handed over to the Inspector. The I.O.\027PW14 who sent the

requisition to the Magistrate or any other Police Officer did

not state that he received the preserved sample of skin from

the hospital with the seal of the hospital. Even if the sample

was collected from the hospital, the possibility of meddling

with it in the absence of seals cannot be ruled out especially

when there was a time lag of nearly three months in sending

the article to the Magistrate. No doubt, a suggestion on

these lines was not put to the I.O. but the question of giving

suggestion would arise only if the I.O. had deposed to the

factum of collecting the sample from the hospital and

sending it to the Magistrate in the same form. It is,

therefore, not safe to rely on the Chemical Examiner's report

to reach a conclusion that petrol was splashed on the

deceased by A-1 before the burning lamp was thrown at him

by A-2.

The prosecution case is sought to be established by

two eye-witnesses, namely, PW-1 and 3 who are the

brothers of the deceased and the dying declaration-Exhibit

P-2. There is a serious doubt as to whether PW-3 had

witnessed the occurrence. In the Chief examination PW3

stated that at the time of occurrence, he was working in the

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shop of Radha Krishnan which is close to the place of

incident but in cross-examination, he stated that he was

running a fire-wood shop on his own. Though he was one of

the persons who took the deceased to the hospital, a doubt

looms large whether he was on the spot when the

occurrence took place. However, there remains the

evidence of PW-1. But, we cannot place wholesale reliance

on his evidence, as he does not come forward with a truthful

story of what had actually happened. His version about the

manner of attack by the four accused persons and the non-

explanation of injuries on the accused 1,2 and 4 raises

some doubts on the credibility of his entire version. At the

same time his version about the incident broadly accords

with the contents of the dying declaration. His evidence

cannot therefore, be eschewed in totality.

The dying declaration recorded by the Judicial

Magistrate cannot be assailed on any germane ground. We

cannot accept the contention of the learned counsel for the

appellants that the deceased would not have been in a

position to sustain his consciousness and give a statement

narrating the details of the incident. The evidence of the

Magistrate, PW 2 is unequivocal that the deceased was

conscious and was able to answer the questions. The

certificate of the doctor (Dr. Lalita Kumari) who was with

him was also obtained on the dying declaration. If some

persons other than the accused attacked and burnt him

there is no reason why the deceased should have thought of

implicating the accused while leaving out the real culprits.

The learned counsel for the appellants then contended

that the non-explanation of the injuries which the accused

No.1 received in the course of the same incident makes a

dent on the prosecution case as the genesis of the incident

was suppressed. It is pointed out that one of the injuries

caused to accused No.1 was a deep lacerated injury of 6"

long x 2" wide on the left leg and the accused remained in

the hospital for 21 days, as seen from the evidence of PW8.

It is further pointed out that the Fire Officer PW7 found A1 in

an injured condition lying on the ground inside the shop.

The contention of the learned counsel though plausible

cannot be sustained. The fact remains that the injury was

simple in nature and no fracture was found on x-ray. The

trial Court rightly commented that A1 would not have

remained in the hospital for such a long time for genuine

reasons. The treatment of a simple injury does not, by any

standards require 21 days of hospitalization. Evidently, he

wanted to find out an escape route to wriggle out of the

complaint against the accused. Coming to the evidence of

PW 7, it is unbelievable that he would remain inside the

shop which according to PW 7 partially caught fire. It is

thus clear that the injuries received by accused No.1 were

simple in nature and the non-explanation of those injuries

by itself cannot throw reasonable doubt on the prosecution

case. It is worthy of note that the counter complaint given

by the accused is itself a tacit admission that the incident

did take place. The deceased got burnt in the course of that

incident. There is nothing to indicate that the accused

apprehended danger and, therefore, acted in self defence.

The contention that the FIR was fabricated in view of

what has been stated by PW 12, has no merit. The FIR only

incorporates the statement recorded by PW 12 at the

hospital. The fact that he consulted the superior officials

before formally recording the FIR does not mean that any

changes or interpolations were introduced.

The next question is what are the conclusions to be

drawn as regards the offences committed by the two

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appellants, going by the version in the dying declaration

coupled with the evidence of PW 1 to the extent it is in

conformity with the dying declaration. The accused No.1 hit

the deceased on his head with a bottle. Assuming that some

liquid spread over the body, there is no satisfactory evidence

to establish that it was petrol or kerosene or such other

highly inflammable liquid. This aspect we have already

adverted to. If the idea of A1 was to pour some

inflammable liquid on the body of the deceased, in all

probability, he would not have resorted to the odd way of

hitting the bottle containing offensive liquid on his head. In

the dying declaration there is no reference to the fact that

any inflammable liquid spilled over from the bottle. Even if

some liquid came out of the bottle as per the version of

PW1, it cannot be taken for granted that it was inflammable

liquid. Coming to the act of the 2nd accused in throwing a

burning kerosene lamp soon after the attack of A1 with

bottle, we are inclined to think that it was a random act

resorted to by the 2nd accused at the spur of the moment,

apparently to cause harm to the deceased. It was not a

pre-planned act done with the definite intention of causing

death. It is not the case of the prosecution that A2 went

close to the deceased and lit up his clothes with the

kerosene lamp. Hurling a small burning lamp towards a

person may not definitely cause fire to the clothes. No

doubt it was a dangerous act and it was likely to cause fire.

But in view of the fact that the candle like lamp comes into

contact with the clothes of the targeted person for a split

second, it may or may not be in a position to ignite the fire.

A person throwing the kerosene lamp in that fashion cannot

at any rate be imputed with the intention to cause the death

or causing such bodily injury as is likely to cause death. He

can only be imputed with the knowledge that by such a

dangerous act, he was likely to cause death. The overt act

of accused No.2 in throwing the burning kerosene lamp at

the deceased would, in our view, give rise to the offence of

culpable homicide not amounting to murder punishable

under Part II of Section 304. The discussion supra also

leads to the inference that the appellants would not have

shared the common intention though the common intention

could spring up at the spot. One accused hitting the

deceased with a bottle on his head which did not cause even

a visible injury and the other accused throwing a burning

kerosene lamp from a distance cannot be said to be acts

done in furtherance of common intention to cause the death

of Rajeswaran. These are random acts done without

meeting of minds. They can only be held guilty for the

individual overt acts. A2 is, therefore, liable to be convicted

under Section 304 (Part II). Accordingly, he is convicted

and sentenced to undergo imprisonment for seven years and

to pay a fine of Rs.500/-. In default of payment of fine, he

shall undergo imprisonment for a further period of three

months. His conviction and sentence under Section 302 IPC

is set aside.

Appellant No.1 (A-1) can only be convicted under

Section 323 for causing hurt to the deceased by hitting him

with a bottle. He is sentenced to undergo imprisonment for

six months.

The evidence in regard to the attack on PW 1 by

appellant No.1 with a knife which caused incised wounds to

PW 1 is quite cogent and convincing. The conviction under

Section 324 and the sentence of 1 year imposed by trial

court, as far as A1 is concerned, is confirmed. Both the

sentences shall run concurrently. A-1 is acquitted of the

charge under Section 302. We are informed that appellant

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No.1 has so far undergone imprisonment of more than

1 year. Hence, we direct that A-1 Vijaya Kumar shall be set

at liberty forthwith.

Before closing, we may add that the High Court readily

assumed, without analyzing the evidence on record that the

bottle with which the deceased was hit contained petrol.

The High Court did not properly address itself to the

question of common intention and the nature of offence.

The appeal is accordingly allowed.