Siva, v. The Inspector Of Police,

Bail Slip The Appellant/Accused No.2 namely Siva, S/o.Ramachandran, aged about 27 years, and Nagasundaram, S/o.Saminathan, aged about 39 years were released on bail vide orders made in Crl.MP(MD) No.2445/2018 in Crl.A(MD)No.150/2018 and Crl.MP(MD)No.2829/2018 in Crl.A(MD)No.176/2018.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on Pronounced on 10.03.2020 20.05.2020

CORAM:

THE HONOURABLE MR.JUSTICE P.N.PRAKASH and THE HONOURABLE MR.JUSTICE B.PUGALENDHI Crl.A(MD)Nos.150 and 176 of 2018 Siva : Appellant/Accused No.2 Vs.

State represented by The Inspector of Police, Kenikarai Police Station, Ramanathapuram District.

[Crime No.310 of 2015] : Respondent/Complainant PRAYER: Appeal filed under Section 374(2) of the Criminal Procedure Code, to call for the records and set aside the order of conviction and sentence passed in S.C.No.119 of 2016, dated 03.02.2018 on the file of the learned Additional District and Sessions Judge, Ramanathapuram and allow this appeal and acquit the appellant/accused from the charges levelled against him. For Appellant : Mr.G.Karuppasamy Pandian For Respondent : Mr.M.Chandrasekaran, Additional Public Prosecutor Crl.A(MD)No.176 of 2018 Nagasundaram : Appellant/Accused No.1 Vs.

The State represented by The Inspector of Police, Kenikarai Police Station, Ramanathapuram District.

[Crime No.310 of 2015] : Respondent/Complainant 1/12

PRAYER: Appeal filed under Section 374(2) of the Criminal Procedure Code, to call for the records relating to the judgment dated 03.02.2018 made in S.C.No.119 of 2016, on the file of the Additional District and Sessions Court, Ramanathapuram and set aside the conviction and sentence imposed against the appellant/accused and allow the above appeal by acquitting the accused.

For Appellant : Mr.G.Karuppasamy Pandian For Respondent : Mr.M.Chandrasekaran, Additional Public Prosecutor COMMON JUDGMENT B.PUGALENDHI,J.

Since both these appeals are arising out of the one and same judgment, they are taken up together for hearing and are disposed of by way of this common judgment.

2. The appeals are filed by the Accused Nos.1 and 2 in S.C.No.119 of 2016 on the file of the Additional District and Sessions Court, Ramanathapuram, as against the conviction and sentence imposed by the trial Court by order dated 03.02.2018.

3. The learned Additional District and Sessions Judge, Ramanathapuram found the appellants / accused guilty for the offence under Sections 302 r/w 34 IPC, convicted and sentenced them as follows:

Accused Section of Law Sentence of imprisonment Fine amount (in Rs) A1 302 r/w 34 IPC To undergo imprisonment for life 25,000/-, in default, to undergo simple imprisonment for a period of one year 15,000/-, in default, to undergo simple imprisonment for a period of one year

4. The brief facts of the prosecution case, in a nutshell, are as follows:

(i) The deceased Chinnathambi was a resident of Udachiyarvalasai village and his elder daughter one Kavitha was married to the first accused Nagasundaram ten years prior to the occurrence. Due to some misunderstanding, Nagasundaram and Kavitha A2 302 r/w 34 IPC To undergo imprisonment for life 2/12

were living separately for 3 1⁄2 years prior to the occurrence. Kavitha was residing in Tiruppur and working in a textile shop. The first accused Nagasundram was under the impression that because of the deceased Chinnathambi, his wife deserted him. He quarrelled with him and also intimidated him. (ii) On 03.07.2015, the deceased Chinnathambi, after completing his work at Panaikulam, returned to his village in a bicycle and on the way, had liquor in a liquor shop. While crossing the Valuthur burial ground, he lied over the road for a while. At that time, the accused Nagasundaram and Siva came in a motorcycle. The first accused poured petrol on the deceased and the second accused set fire with a match box.

At that time, Uma Maheswari [PW5], the second daughter of the deceased and her husband [PW6] were in search of the deceased and they have seen the accused fleeing away from the place of occurrence. PW5 and PW6 took the deceased to his house and thereafter, he was taken to the Government Hospital, Ramanathapuram on 04.07.2015 in a 108 Ambulance and admitted in the Hospital at about 07.25 am. (iii) An intimation was given to the learned Judicial Magistrate, Ramanathapuram [PW12] on 04.07.2015 at about 10.00 am from the Government Hospital, Ramanathapuram. Accordingly, PW12 went to the Government Hospital at about 10.20 am and ascertained the condition of the patient from the Duty Doctor. The Duty Doctor also certified that the patient was conscious, oriented and afebrile. Thereafter PW12 recorded the dying declaration (Ex.P.

"Q: What is your name?

A: Chinnathambi.

Q: Which is your village?

A: Udachiyarvalasai.

Q: Are you married?

A: Yes. I am married.

Q: Do you have children?

A: One son and two daughters. My son is abroad. Q: What happened to you?

A: Yesterday evening, I went from Vilakkuthoppu to the cemetery and sat there. Two persons came in a bike, poured diesel on me and set fire on me. Both of them are known to me. Relatives. One of them is Ramaiya's son and the other is Kundan's son. Kundan's son is my brother-in-law's son. I gave my daughter in marriage to Kundan's son and he divorced her. He was not liking me. He poured petrol on me and set fire to me. My shirt and all got burnt. That is all."

(Left Thumb Impression) 3/12

In the footnote, Dr.J.Shanmugapriya. has endorsed as follows: "Patient conscious orient throughout giving statement."

(Sd/-) (iv)After recording the statements, the learned Judicial Magistrate [PW12] also obtained a certificate from the Duty Doctor, Shanmugapriya and the Doctor has certified that the patient was conscious, oriented and aferbile throughout giving the statement. PW11, the Sub Inspector of Police, Kenikarai Police Station received the intimation from the Hospital on 04.07.2015, went to the Hospital at about 02.00 pm and recorded the statement of the deceased Chinnathambi and registered a case in Kenikarai Police Station in Crime No.310 of 2015 as against the accused Nagasundaram and Siva for the offence under Sections 294(b) and 307 IPC at about 03.00 pm in Ex.P11 and the same was forwarded to the Judicial Magistrate concerned through the Head Constable [PW10] and was handed over to the Court concerned on 04.07.2015 at about 06.00 pm.

(v) Periyasamy [PW15], Inspector of Police, Kenikarai Police Station, on receipt of the information, went to the place of occurrence on 04.07.2015 at about 03.45 pm, prepared an observation mahazar [Ex.P16], rough sketch [Ex.P17] at about 04.00 pm in the presence of PW7 and PW8 and also recovered a match box branded as ship [MO5], a health card issued by United Arab Emirates to the first accused Nagasundaram with an identity card with photo [MO4] and a Hercules Cycle [MO6], a burnt Lungi [MO1], a burnt belt [MO2] and a 7up bottle with petrol smell [MO7] and earth with and without bloodstain [MO8 and MO9] under a cover of Mahazar Ex.P18. He also recorded the statement of the deceased Chinnathambi, Laxmi [PW1], Uma Maheswari [PW5], Kumar [PW6] and others.

(vi) On 05.07.2015, at about 06.00 am, the deceased died in the Hospital and on receipt of that intimation, he made a request for altering the offence to Section 302 IPC, went to the Hospital and conducted an inquest in the presence of the Panchayatars on 05.07.2015 at about 11.30 am. The inquest report is marked as Ex.P20. He arrested the accused on 06.07.2015 at about 06.00 am at Valantharavai Bus stop, recorded their confession statement in the presence of Maheswaran, Village Administrative Officer [PW4] and another, recovered a motor cycle. He also recorded the statement of PW5 and PW6 under Section 164 (5) Cr.P.C and also sent the recovered samples for chemical analysis. The further investigation was conducted by one Balamurugan, Inspector of Police [PW16]. He examined the Postmortem Doctor [PW2] and filed the final report in this case.

4/12

(vii) During the trial, 16 witnesses were examined, 23 documents were marked and 9 material objects were produced.

5. After the prosecution evidence was closed, the incriminating materials were put before the accused under Section 313 Cr.P.C and the accused denied the same. In conclusion of the trial, the trial Court found the appellants guilty, as stated supra.

6. Heard Mr.R.Gandhi, learned Counsel for the first accused / appellant in Crl.A(MD)No.176 of 2018, Mr.G.Karuppasamy Pandian, learned Counsel for the second accused / appellant in Crl.A(MD) No.150 of 2018 and Mr.M.Chandrasekaran, learned Additional Public Prosecutor for the State.

7.Mr.R.Gandhi, learned Counsel, in support of his case, has raised the following points:

(i) The occurrence has taken place on 03.07.2015 at about 10.00 pm, but the case was registered only on 04.07.2015 at about 02.00 pm with an inordinate delay of 14 hours and there is no explanation offered by the prosecution for the delay. (ii)The second daughter [PW5] and the son-in-law [PW6] of the deceased were in search of the deceased. Immediately after the occurrence, they are said to have witnessed the accused crossing them in a motor cycle. Though they are said to have witnessed the deceased with burn injuries, they did not take any steps either to provide treatment to the deceased or to lodge any complaint. Therefore, the learned Counsel would contend that these witnesses are planted in order to strengthen the case of the prosecution that they have witnessed the accused crossing them from the place of occurrence in a motor cycle.

(iii) The occurrence has taken place at 10.00 pm on 03.07.2015, but the accused was taken to the Government Hospital on 04.07.2015 at about 07.40 pm by the Driver of the 108 Ambulance.

(iv)In the Accident Register entry as well in the medical intimation to the learned Judicial Magistrate, it is referred that the deceased sustained 91% burn injuries and therefore, it is highly doubtful that the deceased was conscious and in a fit state of mind to give the statement of dying declaration after 12 hours of the incident. The Doctor [PW2], who conducted postmortem, admitted in his evidence that a person, who sustained 90% burn injuries, cannot be in a fit state of mind to give the dying declaration. Moreover, the dying declaration [Ex.P12] was not properly certified by the Doctor that the deceased was in a fit state of mind to give the dying declaration.

5/12

(v) In the dying declaration, the deceased has stated that the occurrence has taken place on 03.07.2015 in the evening. But, in his statement [ExP1] to the Head Constable [PW11], he has stated that the occurrence has taken place on 03.07.2015 at about 10.00 pm. Therefore, it is not safe to rely upon the dying declaration alone to sustain the conviction on the accused. (vi) PW1, PW5 and PW6 have stated in their evidence that the deceased has informed them about the incident, but the narration of the incident by PW1, PW5 and PW6 are contradictory to each other.

(vii) The case rests on circumstantial evidence and to establish the case on circumstantial evidence, motive is a vital part. In this case, motive has not been established by the prosecution. The motive projected by the prosecution is that the first accused was married to the elder daughter of the deceased and due to some misunderstanding, they have separated. His wife Kavitha was living separately at Tiruppur and the first accused was under the impression that the deceased was responsible for their separation and has committed the offence. PW1, PW5 and PW6 have stated about the motive. PW1, in her evidence, would admit that the first accused was working in abroad and after his return, asked for accounts, but his wife did not account for and therefore, suspecting her fidelity only, he deserted his wife.

Neither herself nor her husband is responsible for their separation and moreover, the marriage between the first accused and the elder daughter of the deceased was soleminised ten years prior to the occurrence and they have been living separately for the past 3 1⁄2 years. Therefore, there is no nexus to establish the motive as against the appellant / first accused. Moreover, Kavitha wife of the first accused was also not examined to substantiate the motive. In the absence of the motive, the prosecution cannot sustain the conviction. Therefore, he prays for interference.

8. The learned Counsel for the second accused submitted that he is sailing with the above submissions made by the learned Counsel for the first accused. In addition to the same, he would submit that no motive is attributed by the prosecution as against the second accused. According to him, PW6, the son-in-law of the deceased, is having a motive as against the second accused, since the second accused, when he worked under PW6, on contract basis, for the construction of a water tank at Thondi, caused some nuisance under the influence of liquor, without doing any work. Moreover, there was an incident three to four days prior to this occurrence, where the second accused assaulted PW6 with a knife near his eye and in this regard, PW6 is also said to have lodged a complaint as against the second accused before the Devipattinam 6/12

Police Station. Therefore, he prays for interference at the hands of this Court.

9. Per contra, the learned Addtional Public Prosecutor appearing for the State made his submissions as follows: (i) Though there is a delay in reporting the incident, the dying declaration was recorded by the learned Judicial Magistrate [PW12] in the presence of the Duty Doctor one Shanmugapriya. Before recording the dying declaration, the Doctor has certified that the patient was conscious, oriented and afebrile. (ii)The learned Judicial Magistrate [PW12] has also ascertained the condition of the deceased by putting certain questions and the deceased has replied perfectly for those questions. The deceased, in the dying declaration, has specifically stated that two persons, who are also his relatives, one is the son of Ramayee and another is the son of Kundan, have poured petrol and set fire.

His elder daughter was married to the son of the Kundan and the marriage ended in divorce. This statement in the dying declaration is corroborated through the accident register entry, which was recorded by the Duty Doctor [PW13] at about 07.25 am and also in the complaint [Ex.P1] recorded by PW11. He would further submit that the evidence of the wife of the deceased [PW1] as well as the evidence of PW5, PW6 also establish the case of the prosecution and all the material objects recovered from the place of occurrence would also establish the case of the prosecution and that the prosecution has established its case beyond reasonable doubt. (iii) The accused are relatives of the deceased.

The first accused is the son-in-law of the deceased, who married the elder daughter of the deceased and due to some strained relationship, they were living separately for more than three years prior to the occurrence and the case of the prosecution is that the first accused, under the impression that the deceased is responsible for their separation, has committed the offence with the help of his relative the second accused. Therefore, he prays for dismissal of the appeals.

10. This Court has paid it's anxious consideration to the rival submissions made on either side and also to the materials placed on record.

11. Admittedly, the occurrence had taken place on 03.07.2015 at about 10.00 pm. But the deceased was taken to the hospital only on the next day at about 07.25 am. The Accident Register [ExP13] would disclose that the deceased was brought to the Hospital by 108 Ambulance Driver. The prosecution has attempted to project that the second daughter [PW5] of the deceased and her husband 7/12

[PW6] were in search of the deceased and found the accused passing in a motorcycle from the place of occurrence after the occurrence. Though PW5 and PW6 are said to have found the deceased at the burial ground immediately after the occurrence, their conduct in not taking the deceased to the Hospital and taking him to his house with burn injuries and taking him to the Hospital only on the next day morning at 07.25 am creates a doubt on their testimony. In fact, in the Accident Register [Ex.P13] it was recorded that the deceased was brought to the hospital by a 108 Ambulance Driver.

Though it is not necessary that the Doctor, who has recorded the Accident Register, must record all the persons who accompanied the deceased at the time of admission in the hospital, considering the circumstances of the present case, that the deceased had sustained severe burn injuries to the extent of 91%, the story of the prosecution that PW5 and PW6 have taken the deceased to the residence and kept him for the whole night without providing treatment in such a condition and taken him to the hospital on the next day, cannot be an acceptable one and therefore, the evidence of PW5 and PW6 cannot be relied on in this case.

12. Admittedly, PW1 is a hearsay witness. Apart from the evidence of PW1, PW5 & PW6, the other available evidence is the dying declaration recorded by the learned Judicial Magistrate, Ramanathapuram [PW12] on 04.07.2015 at about 10.20 am from the deceased in the Government Hospital, Ramanathapuram in the presence of one Dr.J.Shanmugapriya. Before recording the dying declaration, the learned Judicial Magistrate confirmed the condition of the patient from the Duty Doctor and the Doctor has certified that the patient was conscious, oriented and afebrile. The learned Magistrate, before recording the dying declaration, had also made certain questions about his name, village and children to ascertain his condition and thereafter, he recorded the dying declaration.

The deceased in his dying declaration has stated that two persons, who came in a motorcycle poured petrol on him and set fire. Those persons are his relatives and one is the son of Ramayee and another is the son of Kundan. He also stated that he gave his elder daughter in marriage to the son of Kundan and the marriage ended in divorce. Therefore, the son of Kundan was inimical towards him and he set fire by pouring petrol. After recording the dying declaration, the learned Judicial Magistrate obtained a certificate from the Duty Doctor Shanmugapriya about the condition of the deceased and she certified that "the patient was conscious, oriented and afebrile throughout giving the statement". This statement recorded in the dying declaration is corroborated from the entry in the Accident Register [ExP13].

The Doctor, PW13, who admitted the deceased on 04.07.2015 at 07.

fire around 10.00 pm on 03.07.2015 near Valuthoor sudukadu".

13. The Doctor [PW13], who admitted the deceased in the Hospital, recorded that the patient was conscious at the time of admission. The deceased survived till 05.07.2015 and died at 06.00 am on 05.07.2015. A statement was also recorded from him in Ex.P1, wherein he has also stated about the occurrence and the involvement of the accused in the commission of the offence. Apart from the same, PW1 the wife of the deceased has also stated that her husband told her about the occurrence that these two accused have poured petrol over him and set fire.

14. It is true that there is a contradiction in the statement of PW1, PW5, PW6 and Ex.P1. As discussed supra, we are not believing the evidence of PW5 and PW6. However, the dying declaration recorded from the deceased in Ex.P12 appears to be genuine and it was also recorded as per the guidelines laid in Laxman vs State of Maharashtra reported in (2002) 6 SCC 710. At this juncture, we feel it relevant to extract the findings of the Hon'ble Supreme Court in Sohan Lal Vs State of Punjab, (2003) 11 SCC 534, wherein, the Hon'ble Supreme Court has held as follows: "According to the learned Counsel for the accused, the circumstances under which the deceased Kamlesh Rani died have been narrated differently on five different occasion.

First, there is the version in the FIR lodged by Bansi Ram [PW2] second, is the version given in the deposition of Bansi Ram [PW2], third, is the dying declaration recorded by the Naib Tahsildar Lakhbir Singh [PW6] (Ext PN), fourth, is the version in the statement of Kamalesh Rani recorded under Section 161 CrPC and fifth, the version given in the deposition of Jit Singh (PW7) under cross examination. The learned Counsel contended that each one of the versions is inconsistent with the others and, therefore, taking an over all view, as each one of the versions conflicts with the uphold the conviction of the appellants. Although, at the first blush, the contention of the learned Counsel for the appellants seem attractive, upon a careful appraisal, it has no substance.

We have already analysed the deposition of Bansi Ram [PW2] in the light of the deposition of Usha Rani [PW3]. A cumulative reading of the two, together with the medical endorsements made on the bedhead ticket of G.N.D. Hospital, clearly rules out Bansi Ram as having received any information from deceased Kamalesh Rani. It is true that both in the FIR as well as in the deposition of Bansi Ram [PW2], an exaggerated version had been given.

law laid down by the Constitution Bench of this Court in Laxman [(2002) 6 SCC 710] and found it to have passed. We are, therefore, not inclined to accept the contention that the dying declaration (ExtPN) needs to be rejected because the FIR of Bansi Ram and the deposition of Bansi Ram do not tally with it."

15. Moreover, the case of the prosecution is also strengthened by the material objects recovered from the place of occurrence. The Inspector of Police [PW15] went to the place of occurrence on 04.07.2015 at about 03.45 pm and recovered a 7up bottle with petrol smell [MO7], match box [MO5] and identity card of the first accused [MO4], and a burnt belt [MO2] from the place of occurrence. It is an admitted fact that the first accused was working in abroad and returned to India. He availed the health card from United Arab Emirates and an identity card with photo [MO4] and it was recovered from the place of occurrence under a cover of mahazar [Ex.P18], even before his arrest. This recovery of the identify card of the first accused from the place of occurrence further corroborates the case of the prosecution.

16. The motive between the first accused and the deceased, as projected, is that the elder daughter of the deceased was married to the first accused and due to the strained relationship, they were living separately for more than 3 1⁄2 years and the first accused was under the impression that it is because of the deceased, his wife is living separately. This part of motive is established through the dying declaration [Ex.P1] and through the evidence of PW1. The accused has also admitted in his statement under Section 313 Cr.P.C that he is the son-in-law of the deceased and they have been separated in the year 2014, pursuant to an enquiry held in the All Women Police Station. The first accused also filed a written statement under Section 313 Cr.P.C that the second daughter [PW5] of the deceased was married to an another community man [PW6] and it was objected to by him and therefore, they were having enmity against him.

17. The materials available on record not only establish motive as against the first accused, but also form a chain of events, unerringly point towards the guilt of the first accused and therefore, there is no reason to interfere with the findings of the trial Court. Therefore, the appeal in Crl.A(MD)No.176 is liable to be dismissed.

18. Insofar as the second accused is concerned, the prosecution has not established it's case beyond reasonable doubt. In the dying declaration [Ex.P12], the deceased has stated that the son of one Ramayee and the son of one Kundan have committed the offence. The name of the second accused is not mentioned in 10/12

the dying declaration recorded by the learned Judicial Magistrate [PW12]. The prosecution has not taken any steps to fix the second accused that he is the son of Ramayee. The second accused, in his statement under Section 313 Cr.P.C., has stated his mother's name as Ramalakshmi and not Ramayee. The prosecution miserably failed to establish that the second accused is son of Ramayee though his relatives PW1, PW5 and PW6 were examined.

19.

In ExP1 the name of the second accused and the role played by him in the commission offence is narrated by the deceased. This ExP1 was recorded by the Head Constable PW11 in the Government Hospital, Ramanathapuram at about 2.00pm on 04.07.2015 and based on this statement the case in Crime No.310 of 2015 was registered as against the accused. The version in Exp1 appears to be exaggerated to an extent of adding this second accused/ appellant [Crl.A(MD)No.150 of 2018] as well adding of PW5 and PW6 as witness to the occurrence based on their conduct in not taking the deceased to the hospital immediately. As we discussed earlier the presence of PW5 and PW6 near the scene of occurrence at the time of occurrence was disbelieved by this Court and therefore, this exaggerated version in ExP1 alone is not sufficient to sustain the conviction as against the second accused.

20. We have given our reasons for not believing the evidence of P.W.5 and P.W.6 and rejecting Ex.P.1. In our opinion, the evidence of P.W.1 is trustworthy. The dying declaration recorded by the learned Judicial Magistrate - P.W.12, thus, inspires our confidence. However, we are constrained to acquit A.2 because the learned Public Prosecutor who did the case failed in his minimum duty to ask P.W.1 about the parents' name of A.2. At the risk of repetition, the deceased has not given the name of A.1 and A.2, but has referred to the names of their parents in the dying declaration. In the country side, the rustic villagers normally identify a person with reference to his parents. That is what the deceased has done in this case. Unfortunately, there is no link evidence to show that Ramaiya's son is A.2.

Therefore, the appeal filed by the second accused in Crl.A(MD)No.150 of 2018 deserves to be allowed and the conviction and sentence imposed on the second accused in S.C.No.119 of 2016, dated 03.02.2018 by the learned Additional District and Sessions Judge, Ramanathapuram are liable to be set aside.

21.In the result, (i) Crl.A(MD)No.176 of 2018 is dismissed. The conviction and sentence imposed on the first accused in S.C.No.119 of 2016, dated 03.02.2018 by the learned Additional District and Sessions Judge, Ramanathapuram is confirmed. The trial Court is directed to secure the first accused and confine him to prison to undergo the remaining period of sentence.

11/12

(ii) Crl.A(MD)No.150 of 2018 is allowed. The conviction and sentence imposed on the second accused in S.C.No.119 of 2016, dated 03.02.2018 by the learned Additional District and Sessions Judge, Ramanathapuram is set aside and he is acquitted of the charges framed against him and the fine amount, if any paid, shall be refunded.

(iii) Bail bonds, if any executed by the accused, shall stand terminated.

Sd/- Assistant Registrar (CS-II) // True Copy // / /2020 Sub Assistant Registrar(CS) dsk To 1.The Additional District and Sessions Judge, Ramanathapuram.

2.The Superintendent, Central Prison, Madurai. 3.The Inspector of Police, Kenikarai Police Station, Ramanathapuram District.

4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

5.The Record Keeper-3 COPIES VR / ER Section, Madurai Bench of Madras High Court, Madurai.

Common Judgment made in Crl.A(MD)Nos.150 and 176 of 2018 20.05.2020 KM (26.06.2020) 12P 8C 12/12