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2006 DIGILAW 790 (MAD)

Selvan v. State by Inspector of Police

2006-03-21

A.R.RAMALINGAM, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Criminal Appeal against the Judgment of conviction dated 5.12.2000 made in S.C.No.175 of 2000 on the file of the Principal Sessions Judge, Erode.) M. Karpagavinayagam , J. Selvan, the appellant herein was convicted for the offence under sections 302 and 436 IPC for having caused death of his wife by setting fire on her and caused damage to the hut. 2. Brief facts leading to the conviction are as follows:- i) The deceased Rani is the wife of the accused. They got married about two years prior to the date of occurrence. It was a love marriage and the said marriage was solemnized without the permission of the relatives of either side. The accused used to go to Tiruppur everyday for attending his work in Tiruppur Mill and used to come in the night. ii) On the date of occurrence i.e., on 19.2.2000, the deceased went to the house of PW5 Rasathi and was watching television till 10.00 pm. The accused, when came back to the house, found that she was not available. So, he went to the house of PW5 and took her to his house. The accused reprimanded her for having gone to the house of PW5 for watching television. The deceased requested the accused to take food. He refused and went away. The deceased took bed. At about 11.00 pm, she felt that somebody had thrown a fire cloth ball on her, which resulted in her catching fire all over the body and in that process, the hut of the deceased as well as the hut of the neighbours got destroyed. The deceased being engulfed by fire, cried aloud. PW4 Subramani @ Meesaikkarar, the neighbour came and rescued her by putting "jamukkalam" on her and he put out the fire. iii) PW1 Pappathi, the mother of the deceased and PW2 Muthammal, the sister of the deceased took the injured to Coimbatore Medical College Hospital at about 1.30 am. iv) PW11 Doctor admitted her and recorded her statement in Ex.P9 Accident register. She told him that somebody threw fire cloth ball on her. Requisition was sent to the Judicial Magistrate. Accordingly, PW9, Judicial Magistrate came to the hospital at 3.25 am on 20.2.2000 and recorded the dying declaration. Same thing was stated to the Judicial Magistrate also. iv) PW11 Doctor admitted her and recorded her statement in Ex.P9 Accident register. She told him that somebody threw fire cloth ball on her. Requisition was sent to the Judicial Magistrate. Accordingly, PW9, Judicial Magistrate came to the hospital at 3.25 am on 20.2.2000 and recorded the dying declaration. Same thing was stated to the Judicial Magistrate also. v) Thereafter, PW17, Sub Inspector of Police, on receipt of information, came to the hospital at 6.00 am on 20.2.2000 and recorded the statement Ex.P1 from the deceased. In the said statement, she entertained suspicion on her husband and mother-in-law. vi) A case was registered under sections 436 and 307 IPC against the accused alone. On 21.2.2000, the accused was arrested. The deceased succumbed to fire injuries on 23.2.2000. On the same day, PW10, the Revenue Divisional Officer conducted inquest. After the death of the deceased, the case was altered into one under section 302 IPC. vii) After completion of the investigation, PW18 filed the charge sheet against the accused for the offence under sections 302 and 436 IPC. viii) During the course of trial, P.Ws. 1 to 19 were examined, Exs.P1 to P21 were filed and M.Os. 1 to 10 were marked. The accused, when questioned under section 313 Cr.P.C., stated that he was not available in the house and he had been to Tiruppur to attend his work. The Trial Court, accepting the case of prosecution, convicted the accused under sections 302 and 436 IPC. Hence, this appeal. 3. Mr.V.Sairam, learned counsel appearing for the appellant, after taking us through the entire evidence, contended that the evidence available on record would not be sufficient to hold the accused guilty of the offences referred to above and as such, he is liable to be acquitted. 4. On these aspects, we have heard the learned Additional Public Prosecutor. 5. According to the prosecution, the accused threw the fire cloth ball on the body of the deceased, while she was sleeping, with the result, she sustained burn injuries and the hut of the deceased as well as other neighbouring huts got damaged by fire. 6. There is no eyewitness in this case. P.Ws.1 and 2 would speak about the oral dying declaration. The deceased has given three dying declarations at different times to different authorities. The first dying declaration is recorded by PW11 Doctor at 1.30 am on 19/20.2.2000. 6. There is no eyewitness in this case. P.Ws.1 and 2 would speak about the oral dying declaration. The deceased has given three dying declarations at different times to different authorities. The first dying declaration is recorded by PW11 Doctor at 1.30 am on 19/20.2.2000. In the said statement, she has clearly stated that somebody had thrown fire cloth ball inside her hut. She never implicated anyone. The second document is the dying declaration recorded by PW9, Judicial Magistrate, at 3.30 am on 20.2.2000. In the said statement, she has specifically mentioned that someone else had thrown the fire cloth ball in the house and she had no quarrel with her husband and during the relevant time, he had been to Tiruppur for attending his work. The third document is the statement recorded by PW17, Sub Inspector of Police at about 8.30 am on 20.2.2000. Only in this statement, she stated that somebody had thrown the fire cloth ball inside her house and she entertained suspicion on her husband and mother-in-law. 7. Thus, it is clear that in the first two earlier documents recorded by PW11 and PW9 at 1.30 am and 3.30 am, the deceased did not choose to implicate any person. Only in the last document viz., Ex.P1 recorded by PW17 at about 8.30 am on 20.2.2000, she entertained suspicion on the involvement of her husband and mother in law. As such, there is no specific evidence as against the accused. 8. As a matter of fact, P.Ws.1 and 2 were examined to speak about the oral dying declaration. We are not able to place reliance on their evidence. PW1, in the chief examination, would specifically state that the deceased was taken to the hospital and admitted at 1.30 am and at that time, the deceased told the doctor that her husband was responsible for the burn injuries. This is factually not correct, as it is against the contents of the document Ex.P9 issued by doctor, PW11. 9. There is also variation between P.Ws.1 and 2 with reference to the oral dying declaration. Further, it is noticed that PW1 would state that at about 10.00 pm, the accused came to the house of PW5 and took her to his house. 9. There is also variation between P.Ws.1 and 2 with reference to the oral dying declaration. Further, it is noticed that PW1 would state that at about 10.00 pm, the accused came to the house of PW5 and took her to his house. On the other hand, PW2, sister of the deceased, had stated that they were watching television upto 10.00 pm and thereafter, she asked the deceased to go to her house and accordingly, she went to her house. Thus, it is clear that there is no consistent material to indicate that it is the husband, the accused who took the deceased from the house of PW5 to his house. Therefore, P.Ws.1 and 2 who speak about the oral dying declaration, cannot be relied upon as they are not consistent with their version. Further, their deposition is completely against the contents of the dying declaration Ex.P9 recorded by PW11 doctor and Ex.P5 recorded by PW9 Judicial Magistrate and Ex.P1 recorded by PW17. 10. Consequently, this Court is constrained to hold that there is no sufficient material to connect the accused with the crime in question. Hence, the accused is liable to be acquitted. Accordingly, he is acquitted. The criminal appeal is allowed. The conviction and sentence is set aside. The bail bond executed by the appellant/accused shall stand cancelled.