& Anr Vs. State, by Inspector of Police, Kanyakumari  Insc 342 (13 May 2005)
& P.P. Naolekar P. Venkatarama Reddi, J.
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 PW1the 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
of them were therefore sentenced to life imprisonment.
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.
case of the prosecution, as per the charge-sheet and the evidence of
prosecution witnesses, is as follows:
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 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. PW1the
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. PW8Dr. 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.
putting off the fire, he found A2 with injuries lying inside the shop and took
him to Kuzhithurai Government hospital.
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.
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
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:
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 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.
deposed that Rajeswaran was conscious and he answered the preliminary questions
put by him and then only he recorded his statement.
died in the morning hours of 24th July, 1994.
The Inspector of PolicePW14 conducted the inquest of the deceased in the
presence of panchayatdars and sent the dead body for postmortem. Postmortem was
conducted by PW9the 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.
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.
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.
reply to the questions put under Section 313 Cr.P.C., the appellants totally
denied the incident and their involvement.
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 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.
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 timewhich 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.
two eyewitnesses are brothers of the deceased.
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.
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 brotherPW3 rushed to
the scene from another nearby shop and tried to put off the fire.
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.
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 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
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 PolicePW13 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 DoctorPW9 could not find the smell of
kerosene or petrol or any other inflammable liquid on the body of the deceased.
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 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.
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.PW14 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.
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 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.
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.
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
further pointed out that the Fire Officer PW7 found A1 in an injured condition
lying on the ground inside the shop.
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.
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
next question is what are the conclusions to be drawn as regards the offences
committed by the two 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.
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.
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.
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.
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
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.
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
High Court did not properly address itself to the question of common intention
and the nature of offence.
appeal is accordingly allowed.