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2006 DIGILAW 1862 (MAD)

Viswanathan & Another v. The Inspector of Police

2006-07-25

A.C.ARUMUGAPERUMAL ADITYAN, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Appeal against the judgment dated 10.06.2003 made in S.C.No.136 of 2002 on the file of Additional Sessions Judge, Additional Fast Track Court, Ariyalur.) M. Karpagavinayagam, J. The appellants are A1 and A3. Originally there were three accused. Since A2-Ravi died, A1 and A3 were tried and convicted and sentenced to undergo one year rigorous imprisonment and also to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for two months for the offence under Section 342 IPC and to undergo life imprisonment and also to pay a fine of Rs.5,000/- each, in default to undergo simple imprisonment for six months for the offence under Section 302 read with 34 IPC. Challenging the same, the appellants have filed the above appeal. 2. The relevant facts which are necessary for the disposal of the appeal are as follows :- (a)The deceased Ayyasamy, one Danasingh and A1-Viswanathan are co-brothers. A1-Viswanathan and A3-Savithri are husband and wife. A2-Ravi, who died during the course of trial, is the son of A1 and A3. PW1-Thangamani is the cousin brother of the deceased Ayyaamy. PW3-Natarajan and PW4-Panneerselvam are the bothers of the deceased Ayyasamy. The Eucalyptus trees belonging to Dhanasingh, which were in the poramboke land, were sold to the deceased Ayyasamy. After selling the trees to deceased Ayyasamy, Dhanasingh, with the help of A2-Ravi, cut the trees and sold the same outside. (b) Upon questioning the act of A2-Ravi, who helped Dhanasingh, there was a quarrel between the deceased and A1 to A3. So the matter was taken to the Panchayat. The deceased Ayyasamy was not able to give any document to the Panchayatdars to show that the land was sold to the deceased by Dhanasingh. (c) On 24.12.1998 at about 8.00p.m., since the deceased went on scolding and abusing the accused 1 to 3, they beat the deceased with sticks and stones and then, he was dragged to the house of the first accused, tied to a post and was beaten again. (d) On the next day, i.e. on 25.12.1998 at about 7.00 a.m., accused 1 and 2 untied the ropes and caught hold of the deceased and A3-Savithri poured kerosene over the body of the deceased and set him on fire. PW.3-Natarajan and PW4-Panneerselvam, the brothers of the deceased rushed to the scene on hearing the hue and cry of the deceased and saw the deceased in flames. PW.3-Natarajan and PW4-Panneerselvam, the brothers of the deceased rushed to the scene on hearing the hue and cry of the deceased and saw the deceased in flames. Immediately, he was taken to the hospital. PW5-Dr. Balasubramanian admitted him and issued the Accident Register, Ex.P3. The deceased told the Doctor that three known persons poured kerosene and set fire to him. (e) In the meantime, the intimation was sent to the Police and PW10, the Sub Inspector of Police, Kaikalathur Police Station came to the hospital, recorded the complaint at 3.00p.m. and registered a case under Sections 342 and 307 IPC. The complaint is Ex.P8 and the First Information Report is Ex.P9. (f) Thereafter, PW-12, the Inspector of Police took up the investigation, reached the scene of occurrence and observed all the formalities. PW8-Judicial Magistrate, on receipt of the requisition from the hospital, went to the hospital at about 6.30 p.m. on 25.12.1998 and recorded the dying declaration from the deceased Ayyasamy. On 26.12.1998, the deceased died. Therefore, the case was altered to one under Sections 342 and 302 IPC and the Express FIR was sent to the Court, which was marked as Ex.P12. Thereafter, on the same day between 10.30 a.m. and 1.30 p.m., he conducted inquest and prepared the Inquest Report, Ex.P13 and examined PWs.3 and 4 and others and sent the body for post-mortem to PW9-Dr. Gandhi. (g) On 26.12.1998 at 2.30 p.m., PW-9 Dr. Gandhi conducted the post-mortem and issued Ex.P6-Post-mortem Certificate, giving an opinion that the deceased would appear to have died of effects of extensive burns. (h) Thereafter, on 27.12.1998 at 4.00p.m., A1 to A3 were arrested by PW12, who also recorded the statement of the witnesses. Then, he handed over the investigation of the case to PW13-Inspector of Police. PW13 conducted further investigation and after completion of the investigation, he filed the charge sheet under Sections 342, 323, 302 and 114 read with 34 IPC. (i) During the course of trial, on the side of prosecution, P.Ws.1 to 13 were examined, Exs.P.1 to P.13 were filed and M.Os.1 to M.O.5 were marked. (j) When A1 and A3 were questioned under Section 313 Cr.P.C., both of them denied their complicity in the crime stating that they were not available at the scene of occurrence. They further stated that it is a case of suicide, for taking revenge upon the accused. (j) When A1 and A3 were questioned under Section 313 Cr.P.C., both of them denied their complicity in the crime stating that they were not available at the scene of occurrence. They further stated that it is a case of suicide, for taking revenge upon the accused. To substantiate their plea, on their side, DW1 to DW3 were examined. No documents were filed on the side of defence. (k) The trial Court, after considering the evidence available on record, accepted the prosecution case and convicted the accused 1 and 3 for the offence under Sections 342 and 320 r/w 34 I.P.C. Challenging the same, this appeal has been filed. 3. We have heard Mr.A.Padmanaban, learned counsel appearing for the appellants and Mr.V.R.Balasubramaniam, learned Government Advocate for the respondent. 4. We have carefully considered the submissions made by both the counsel and gone through the materials available on record. 5. Admittedly, there is no eye witness in this case. According to the prosecution, when A1-Viswanathan and A3-Ravi caught hold of the deceased, A2-Savithri poured kerosene and set fire to him. The prosecution proposed to rely upon Ex.P3-Accident Register, Ex.P5-dying declaration given by the deceased to PW8, Judicial Magistrate and Ex.P8-complaint of the deceased Ayyasamy. 6. The first document is Ex.P3, Accident Register. PW5 is the Doctor who recorded the statement at about 12.50 p.m from the deceased Ayyasamy. It is noted in Ex.P3, "alleged to have poured kerosene by known persons (Viswanathan, Savithri and Ravi) and set fire at about 7.00 a.m. on 25.12.1998 in their house." The next document is Ex.P8-complaint given by the deceased to PW10, Sub Inspector of Police at about 3.00p.m. on 25.12.1998. In the said statement, he had mentioned all the three accused, as if A1 and A2 caught hold of the deceased and A3 poured kerosene and set fire to the deceased. The third document is Ex.P5-dying declaration, which was recorded on 25.12.1998 at 6.00 p.m. by PW8 in the presence of PW11-Dr.Rajendran. 7. While going through these three documents, we could find that there is consistency. There is no vital difference with reference to the material particulars. But, it has to be noted that PW1, who was examined as eye-witness, did not support the prosecution. On the other hand, even in the chief-examination, he said that the deceased himself poured kerosene and set himself on fire. There is no vital difference with reference to the material particulars. But, it has to be noted that PW1, who was examined as eye-witness, did not support the prosecution. On the other hand, even in the chief-examination, he said that the deceased himself poured kerosene and set himself on fire. Further, that is the reason, he was treated as hostile. 8. The other witnesses are PWs.3 and 4, the brothers of the deceased Ayyasamy, who took the deceased immediately to the hospital. PW5-Dr.Balasubramanian has stated in Ex.P3 that he was brought by PW-3 Natarajan, the brother of the deceased. As stated above, PWs.3 and 4 have not seen the occurrence. On the other hand, he saw the deceased in flames. After putting out the fire, the deceased was taken to the hospital. They have not stated that the deceased Ayyasamy gave any oral dying declaration with reference to the involvement of A1 to A3 in the crime. Even though the occurrence took place at 7.00 a.m. on 25.12.1998, for the first time, PWs.3 and 4 stated in their deposition that the accused beat him with sticks, took him to their house and tied him to the post with a rope and throughout the night, he was in the same place. 9. Admittedly, PWs.3 and 4 did not take any steps to ensure that he is released. Even though the panchayat was held on 24.12.1998, PWs.3 and 4 did not choose to complain to the Panchayatdars and requested them to release the deceased, who was tied to the post. On the other hand, they merely stated that the next day morning, they had seen the deceased in flames. As indicated above, they have not seen the accused when they were setting fire to the deceased. 10. While going through the documents, Exs.P3, P5 and P8, it is noticed that the deceased was tied to the post throughout the night and on the next day, the ropes were untied and thereafter, A1 and A2 caught hold of the hands of the deceased and at that time, A3 Savithri poured kerosene, lit the match stick and threw it on the body of the deceased. This fact, in our view, is quite artificial because there is doubt as to why they untied the deceased the next day and thereafter, A1 and A2 caught hold of the deceased and at that time, A3 poured kerosene and set fire to him. If they wanted to kill the deceased, they would have poured kerosene even in the night when he was tied to the post. There are no details as to what happened on the earlier morning. There is nothing to indicate that anything happened which provoked the accused 1 to 3 so as to resort to do this act, that too, after untying the deceased from the post. 11. In this context, the evidence of DW2 assumes significance. DW2-Aruvathammal is one of the eye witnesses examined during the course of investigation. The said Aruvathammal is the wife of PW1-Thangamani, who turned hostile. Her evidence as DW2 would indicate that the deceased had a grudge against the accused and since he was not able to get money from the accused through the panchayat, he himself poured kerosene and set himself on fire and then told DW2 that in order to take revenge on the accused, he committed self-immolation. In view of the materials available on record, the defence put forward through DW2 is more probable than the story of the prosecution as projected through Exs.P3, P5 and P8. 12. In view of the above situation, we are not able to conclusively arrive at the decision that the prosecution has established its case, and the materials placed before the Court would not be sufficient to connect the appellants/A1 and A3 with the crime in question. Therefore, the benefit of doubt has to be given to the appellants /A1 and A3. 13. In fine, the judgment of the trial Court in S.C.No.136 of 2002 (dated 10.06.2003) convicting the Appellants/A1 and A3 under Sections 342 and 302 r/w 34 I.P.C. is set aside and this appeal is allowed. The Appellants/A1 and A3 are acquitted of the charges. The bail bonds executed by the appellants shall stand cancelled. The fine amounts, if paid, shall be refunded to them.