Judgment :- (Appeal against the judgment dated 31.08.2001 made in S.C.No.33 of 2000 on the file of I Additional Sessions Judge, Chennai.) M. Karpagavinayagam, J. Appellants, namely, A-1 to A-4, challenging the conviction under Section 302 read with 109 IPC,302,450 and 342 IPC, have filed this appeal. 2. The brief facts are as follows : "(i) The deceased is one Shanmugam. He borrowed a loan of Rs.30,000/- from Shanthi (A-1), who is residing just opposite to the house of the deceased. P.W.1, Muthulakshmi, is the daughter of the deceased. (ii) On 16.12.1998 at about 11.00 a.m., Shanthi (A-1) came to the house of the deceased and demanded for repayment of the loan. There was a wordy quarrel between Shanthi and the deceased. Shanthi abused the deceased and then left the place. On the same day at about 03.30 p.m., A-1, along with her sister A-2 and sister's sons A-3 and A-4, came to the house of the deceased. At that time, the house was locked inside. Then, they broke open the door and entered into the house. At the instigation of A-1, the other accused, namely, Parvathi (A-2), sister of A-1, poured petrol over the body of the deceased and Mohan (A-3) and Raj (A-4) lit a match stick and threw it on the body. Immediately, all the accused ran away from the scene. The deceased got burn injuries all over the body. Unable to bear the pain, the deceased came out of the house and was running towards the house of A-1. In front of the house of A-1, he fell down and cried. Then, the neighbourers and other witnesses rushed to the scene and took the deceased to hospital. (iii) P.W.7, doctor, attached to Kilpauk Medical College Government Hospital, admitted the injured to the hospital and gave treatment. He issued Accident Register, Ex.P-3. Since the condition of the injured, namely, the deceased was serious, he sent intimation to the Metropolitan Magistrate, P.W.8, requesting him to record the dying declaration of the injured Shanmugam. (iv) P.W.8, Metropolitan Magistrate, came to the hospital and, after observing all the formalities, recorded the dying declaration of the injured on 16.12.1998 at 06.35 p.m. Ex.P-5 is the dying declaration. The hospital authorities sent intimation to police also. (iv) P.W.8, Metropolitan Magistrate, came to the hospital and, after observing all the formalities, recorded the dying declaration of the injured on 16.12.1998 at 06.35 p.m. Ex.P-5 is the dying declaration. The hospital authorities sent intimation to police also. (v) P.W.11, Head Constable, attached to Velachery Police Station, went to hospital and examined the victim/deceased and obtained a statement from him Ex.P-8 at about 08.30 p.m. This was attested by the doctor and other witnesses, including P.W.5, Kumar. A case was registered for the offence under Section 307 IPC. F.I.R. is Ex.P-9. (vi) P.W.12, Inspector of Police, on receipt of message, went to the scene and prepared observation mahazar, EX.P-10, and rough sketch, Ex.P-11. He recovered M.O.1, petrol can, containing petrol, and M.O.2, match box. Thereafter, he went to Kilpauk Medical College Government Hospital and recorded statement from the injured and other witnesses. (vii) On 18.12.1998, the deceased died at the hospital at about 05.00 a.m. On receipt of this information, P.W.12, altered the offence from 307 IPC into 302 IPC. He came to hospital, conducted inquest and examined the witnesses and prepared the inquest report, Ex.P-13. He sent the body of the deceased for post-mortem. (viii) P.W.10, post-mortem doctor, conducted post-mortem and found injuries, epidermal and dermoepidermal burns with wide areas of denudement of article exposing the hyperaemic subcuticular layer, on the face, chest, abdomen, genitalia, front and back of all the four limbs and the back and issued post-mortem certificate, Ex.P-7. He also opined that the deceased would appear to have died due to the effects of burns. (ix) In the meantime, all the accused A-1 to A-4 were arrested and sent for remand. The material objects were sent for chemical examination. After completion of investigation, charge sheet was filed against all the accused for the offences referred to above." 3. During the course of trial, P.Ws.1 to 12 were examined, Exs.P-1 to P-13 were filed and M.Os.1 and 2 were marked. 4. When the accused were questioned with reference to the incriminating materials under Section 313 Cr.P.C., they denied their complicity in the crime. However, no evidence was adduced on the side of defence. 5. Having analysed the materials available on record, the trial Court convicted all the four accused for the offences under Sections 302 read with 109 IPC, 302, 450 and 342 IPC. However, no evidence was adduced on the side of defence. 5. Having analysed the materials available on record, the trial Court convicted all the four accused for the offences under Sections 302 read with 109 IPC, 302, 450 and 342 IPC. The said judgment of conviction and sentence is the subject matter of appeal before this Court. 6. Mr.B.Kumarasamy, learned counsel for the appellants, took us through the entire evidence and would contend that the prosecution has failed to establish its case beyond reasonable doubt, as there are several infirmities creating a doubt with reference to the veracity of the witnesses. He would further contend that the materials found available in Exs.P-3,P-5 and P8 would indicate that there is a vital difference and the evidence of P.W.1, who is stated to be the eye-witness, cannot be believed, because she is the daughter of the deceased. The learned counsel would also point out various contradictions in order to establish that the materials placed before the Court would not be sufficient to connect the accused with the crime. 7. On these aspects, we have heard the learned Additional Public Prosecutor. 8. According to the prosecution, the deceased obtained a loan of Rs.30,000/- from A-1 and when A-1 went to the house of the deceased and asked for repayment of the loan, the deceased refused to pay the amount, due to which there was a wordy quarrel and, on the same day evening, A-1, along with other accused, namely, A-2 to A-4 trespassed into the house, after breaking open the doors of the house of the deceased and, at the instigation of A-1, A-2 poured petrol over the body of the deceased and A-3 and A-4 set fire to him. 9. The materials placed by the prosecution before the Court are as follows: (1) Evidence of P.W.1, eye witness; (2) Ex.P-3, Accident Register, issued by P.W.7, containing the declaration by the deceased; (3) Evidence of P.W.8, Metropolitan Magistrate, who recorded the dying declaration, Ex.P-5; (4) Evidence of P.W.11, who recorded the complaint, Ex.P-8, from the deceased; and (5) Oral dying declaration, which is spoken to by P.Ws.2,3,4 and 5. 10. On going through the entire evidence, it is not possible to hold that the prosecution has not established the case beyond reasonable doubt. The earliest document, Ex.P-5, is the dying declaration recorded by the Metropolitan Magistrate, P.W.8. 10. On going through the entire evidence, it is not possible to hold that the prosecution has not established the case beyond reasonable doubt. The earliest document, Ex.P-5, is the dying declaration recorded by the Metropolitan Magistrate, P.W.8. The occurrence took place at 03.30 p.m. The deceased was taken to hospital at 04.30 p.m. On the intimation given by the doctor, Metropolitan Magistrate, P.W.8, reached the hospital and recorded the dying declaration at 06.00 p.m. Dying declaration, Ex.P-5, would contain the details about the occurrence and the particulars about the participants in the crime. Another document Ex.P-8, the complaint, recorded by P.W.11, at 08.30 p.m would speak about the occurrence. This evidence is well corroborated by the evidence of P.Ws.2,3,4 and 5, who speak about the oral dying declaration made by the deceased to them. In addition, we have got the evidence of P.W.1, who is the eye witness and daughter of the deceased. Apart from that corroborating materials, we have got the evidence of doctor, P.W.7, and post-mortem doctor, P.W.10, and also the observation mahazar, Ex.P-10. Thus, it is established that the occurrence had taken place inside the house of the deceased. 11. It is true that Ex.P-8 and the evidence of P.W.1 to 5, who speak about the oral dying declaration, would implicate all the four accused, but, on a perusal of the earliest document, namely, Ex.P-5, it is clear that the deceased did not choose to implicate A-1, though there is a general statement as against A-1, regarding the enmity between the deceased and A-1 with reference to the repayment of loan. It is the clear version of the deceased in the earliest document Ex.P-5 that only three persons, namely, A-2, A-3 and A-4 entered into his house, poured kerosene over his body and set him on fire. 12. It is pointed out by the learned counsel for the appellants that Ex.P-3, accident register, which is actually the earliest document recorded by P.W.7 even at 04.30 p.m, would indicate that only two persons were involved in the incident. 13. But, as correctly pointed out by the learned Additional Public Prosecutor that the said statement given to the doctor was not by the deceased but by one Arumugam, who brought the deceased to hospital. As a matter of fact, P.W.7 would admit that the deceased was not able to give any statement, as he was semi-conscious. 13. But, as correctly pointed out by the learned Additional Public Prosecutor that the said statement given to the doctor was not by the deceased but by one Arumugam, who brought the deceased to hospital. As a matter of fact, P.W.7 would admit that the deceased was not able to give any statement, as he was semi-conscious. However, the first declaration made by the deceased was only to Metropolitan Magistrate at 06.00 p.m. If that is taken into consideration, it is clear that there is a consistent version with reference to the participation of A-2 to A-4 in the commission of crime and there is a doubt with reference to the presence of A-1 at the scene of offence. There may be motive for A-1 to have enmity against the deceased, but, that alone would not be sufficient to hold that she is the abettor, especially in the absence of the evidence in the earliest document that A-1 was also present at the scene of offence. 14. Therefore, in our view, A-1 is entitled to be given the benefit of doubt. Moreover, either in Ex.P-5 or in Ex.P-8, the documents, namely, the dying declarations given by the deceased to the Metropolitan Magistrate and to the doctor respectively, would not indicate that A-1 came to the house of the deceased at 11.00 a.m, picked up a quarrel with him and threw a challenge to him stating that she would come again in order to cause danger to his life. Under those circumstances, the presence of A-1 at the scene of offence is doubtful. Accordingly, the conviction and sentence imposed by the trial Court on A-1 is set aside and the conviction and sentence imposed on A-2 to A-4 is confirmed. Consequently, the bail bond executed by A-1 shall stand cancelled and the fine amount, if any paid by her, shall be refunded. In respect of A-2 to A-4, the trial Court is directed to secure their custody forthwith to undergo the remaining period of sentence. 15. Appeal is allowed in respect of A-1 and dismissed in respect of A-2 to A-4.