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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.