Judgment :- M. Jeyapaul, J. Appellants 1 and 2 have been convicted of offence under section 302 read with 34 IPC and were sentenced to undergo life imprisonment with fine of Rs.1000/= with usual default sentence. They challenge the judgment of conviction of the Trial Court. .2. The charge is that on 23. 2004 at about 6.30 pm, A1 and A2 who had some affairs with one Poonkodi decided to do away with the life of Varadarajan as he had not cooperated in bringing Poonkodi to satisfy their lust. On the said day, at the said time, A2 with an intention to cause death of Varadarajan poured petrol over the said Varadarajan and A1, on his part, in furtherance of the common intention, lighted a match stick and threw the same on the said Varadarajan and as a result of which Varadarajan succumbed to the burn injuries at 4.00 am on 33. 2004 and thereby A1 and A2 committed murder punishable under section 302 read with 34 IPC. 3. On the side of the prosecution, as many as 14 witnesses were examined besides marking 24 documents and 2 Material Objects. The court has chosen to examine Dr. Varadarajan as CW1. .4. The sum and substance of the case of the prosecution as unfolded by the witnesses examined on their side is as follows:- Nallamuthu, PW1 is the father of the deceased. Chinnasamy, PW3 is the cousin of PW1. Nallathambi PW2, the deceased Varadarajan and both the accused worked as Mason. All of them hail from Vadugam village. Both A1 and A2 fell deeply in love with Poonkodi, PW10. They sought the assistance of the deceased Varadarajan for their love affair with the said Poonkodi. The accused pestered the deceased Varadarajan to bring Poonkodi to satisfy their lust. The deceased Varadarajan was fed up with such an attitude of A1 and A2. He conveyed his displeasure to his father, PW1. On 23. 2004, at about 4.00 pm, A1 and A2 came in a TVS 50 moped to the house of PW3 and took away the deceased Varadarajan to the house of PW2. When A1 and A2 and the deceased were inside the house of PW2, PW2 came to the front portion of his house and started washing the utensils. At about 6.30 pm, on the said day, he heard Varadarajan shouting for help. When A1 and A2 and the deceased were inside the house of PW2, PW2 came to the front portion of his house and started washing the utensils. At about 6.30 pm, on the said day, he heard Varadarajan shouting for help. He entered the house and found A2 carrying a bottle containing petrol and A1 possessing a match box. A2 poured petrol on the person of Varadarajan and A1, on his part, lighted a match stick and threw it on the person of Varadarajan. Varadarajan started running from out of the house and PW2 followed him. Varadarajan went straight to the plantain grove nearby and fell down there. PW2 poured water and doused the fire. Thereafter, he rushed to the house of PW3 where he found P.Ws.1 and 3. He informed them about the occurrence. P.Ws.1 and 3 came to the scene of occurrence and witnessed the son of PW1 with burn injuries. The son of PW1 was in a serious condition. PW3, having engaged a taxi, took him to Government Hospital, Salem. 5. Dr. Manimegalai, PW11 admitted the injured Varadarajan at about 9.00 pm on 23. 2004 to the Government Hospital, Salem for treatment. She was informed by the injured that at about 6.30 pm on the said day, there was a burst of stove and on account of which, he sustained burn injuries. Varadarajan was found in a conscious state of mind. Dr. Manimegalai, PW11 sent intimation to the police (Ex.P10) about the admission of Varadarajan for burn injuries. She also sent a requisition to the learned Judicial Magistrate, K.N. Nagalakshmi Devi, PW7 to record the dying declaration of Varadarajan. PW7 rushed to the Government Hospital at about 10.20 pm on 30.3.2004 immediately on receipt of requisition, Ex.P2 from PW11 and having ascertained about the conscious and fit state of mind of the injured Varadarajan from Dr. Varadarajan, CW1, started recording the dying declaration of Varadarajan. The injured Varadarajan has stated before the learned Judicial Magistrate, PW7 as follows:- "Saravanan(A2) hailing from Vadugam village is my friend. He commanded me to fetch Poonkodi. I refused to comply with the commands of A2. A2 proclaimed to do away with my life. The said incident took place on Friday. At about 6.30 pm on the following Sunday, A1 and A2 took me from the house of Chinnadurai to the house of PW2. A2 poured petrol on me. He commanded me to fetch Poonkodi. I refused to comply with the commands of A2. A2 proclaimed to do away with my life. The said incident took place on Friday. At about 6.30 pm on the following Sunday, A1 and A2 took me from the house of Chinnadurai to the house of PW2. A2 poured petrol on me. A1, on his part, lighted a match stick and threw on me. They proclaimed that they committed the crime as I had not obliged them. PW2 was in front of his house at that point of time. I ran away from the house of PW2. It was only PW2 who doused the fire. A2 Saravanan was working as Mason. The dying declaration is given by me without any influence from any one." The said dying declaration, Ex.P3 was recorded by the learned Judicial Magistrate, PW7. CW1 had certified the physical and mental condition of the said Varadarajan prior and subsequent to the dying declaration recorded by the learned Judicial Magistrate. 6. The injured Varadarajan succumbed to the burn injuries at about 4.00 am on 33. 2004. As PW1 found it difficult to get the dead body from the hospital, he rushed to Namagiripettai Police Station at about 12.00 noon on 33. 2004 and gave statement, Ex.P1 to the Inspector of Police, PW14. PW14 registered a case in Crime No.209 of 2004 under section 302 IPC based upon the report, Ex.P1 lodged by PW1. He prepared printed FIR, Ex.P16 and despatched the same to the learned Judicial Magistrate and the copies thereof to the higher officials concerned. Thereafter, he rushed to the scene of occurrence at about 1.30 pm on the said day and prepared observation mahazar, Ex.P3 in the presence of Raju, PW8. He also drew rough sketch, Ex.P17 reflecting the scene of occurrence. He examined the witnesses who were present there and recorded their statements. At about 2.15 pm on the said day, the half burnt shirt, M.O.2 was recovered under the cover of mahazar, Ex.P7. Thereafter, he went to the Mortuary of the Government Hospital, Salem and held inquest on the dead body of Varadarajan between 3.30 pm and 5.15 pm and prepared inquest report, Ex.P18. 7. Annadurai, PW4 has deposed before the Trial Court that Nallathambi, PW2 shouted saying that Varadarajan was burnt by A1 and A2. Thereafter, he went to the Mortuary of the Government Hospital, Salem and held inquest on the dead body of Varadarajan between 3.30 pm and 5.15 pm and prepared inquest report, Ex.P18. 7. Annadurai, PW4 has deposed before the Trial Court that Nallathambi, PW2 shouted saying that Varadarajan was burnt by A1 and A2. Karunanithi, PW6 would state that as per the requ1est of A1 and A2, he supplied petrol to them at about 6.00 am on 23. 2004. 8. Dr. Ravishankar, PW12, having received requisition from the Inspector of Police, PW14, commenced post mortem examination on the dead body of Varadarajan at 5.20 pm on 33. 2004. He found the following symptoms and injuries on the dead body of Varadarajan:- "INJURIES: Dermo-epidermal burns with a thin layer of foul smelling greenish yellow pus covering the burn areas seen involving, (a) right side of the face, (b) front, sides and back of the neck (c)whole of both upper limbs (d) whole of inner and back aspects of right thigh (e) whole of right leg except dorsum of right foot. (f) whole of left lower limb except dorsum of left foot. (g) whole of front of chest and upper 2/3rd of front of abdomen and (h) whole of neck. A portion of right half of mustache, axillary hair on both sides found signed. EXTREMITIES: Finger and toe nails beds intensely cyanosed. Heart: Chambers and valves normal, cavities contained dark fluid blood. Coronary vessels: patent Great vessels: Normal. Lungs: C/s congested. Hyoid bone intact. Stomach: contained 200 gms of partly digested cooked rice and brinjal food with no specific smell. Mucosa congested. Duodenum: Contained yellowish chyme. Mucosa: congested. Liver, spleen, kidneys: both on C/s. Congested. Bladder: empty. Pelvis: Intact. Membranes: Intact. Brain O/s. Congested. Spinal column – Intact." He opined in the post mortem certificate, Ex.P12 that the deceased would appear to have died of septic complications on account of extensive burns he sustained. 9. The Inspector of Police, PW14 arrested both the accused on 4. 2004 at about 5.30 am at Muniappanpalayam Bus Stand in the presence of the Village Administrative Officer, Marimuthu, PW9. On the basis of the admissible portion in the confession statement, Ex.P8 given by A2, Saravanan, the bottle, M.O.1 was recovered. Both the accused were, thereafter, remanded to judicial custody. The Material Objects were also sent to the learned Judicial Magistrate. 2004 at about 5.30 am at Muniappanpalayam Bus Stand in the presence of the Village Administrative Officer, Marimuthu, PW9. On the basis of the admissible portion in the confession statement, Ex.P8 given by A2, Saravanan, the bottle, M.O.1 was recovered. Both the accused were, thereafter, remanded to judicial custody. The Material Objects were also sent to the learned Judicial Magistrate. On the basis of the requisition, Ex.P21 submitted by PW14, the Material Objects were sent for chemical examination under the covering letter, Ex.P22. On examining M.Os.1 and 2, the chemical examiner submitted a report, Ex.P23 that the bottle, M.O.1 and the half burnt shirt, M.O.2 were found with petrol liquid. After completing the investigation, PW14 laid final report as against both the accused for offences under section 302 read with 34 IPC on 14. 2004. 10. Both the accused responded to the incriminating circumstances brought to their notice under section 313 Cr.P.C that a false case was foisted on them. All the witnesses have spoken falsity they have submitted before the Trial Court. 11. Neither oral nor documentary evidence has been let in on the side of the defence. 12. The Trial Court, having placed reliance upon the ocular testimony of Nallathambi, PW2 in the background of dying declaration, Ex.P3 recorded by the learned Judicial Magistrate, PW7 and res gestae testimony spoken to by P.Ws.1, 3 and 4, has come to the conclusion that in furtherance of the common intention A2 poured petrol and A1 lighted a match stick and threw it on the person of Varadarajan and caused his death and thereby they committed an offence under section 302 read with 34 IPC. 13. Learned counsel appearing for the appellants would submit that the deceased Varadarajan has come out with a version at the first instance before the Doctor, PW11, who examined him that the injury was sustained by him accidentally on account of a stove burst. The very fact that the law was not set in motion immediately after the occurrence would go a long way to support the case of the defence that a false case was fabricated later in point of time. PW2 who is the only eyewitness to the occurrence has not specifically stated before the investigating officer the specific role played by both the accused. He had not witnessed the occurrence as per the version before the investigating officer. PW2 who is the only eyewitness to the occurrence has not specifically stated before the investigating officer the specific role played by both the accused. He had not witnessed the occurrence as per the version before the investigating officer. Therefore, it is quite unsafe to rely upon the testimony of PW2. When the evidence of the only ocular witness falls to the ground, there is no point in placing reliance upon the res gestae version of the other witnesses. The other testimony available on record have been cooked up to suit the convenience of the prosecution. Therefore, he prays for acquittal of both the accused. 14. The learned Additional Public Prosecutor for the State would vehemently contend that on account of the threat wielded by A1 and A2 to P.Ws.1 and 3, the law was not set in motion immediately after the occurrence. There is no reason to reject the ocular testimony of PW2 in whose house, the occurrence unfolded. The dying declaration given to the learned Judicial Magistrate, PW7 who recorded it after adhering to all the formalities inspires judicial confidence. Referring to the chemical analysis report, Ex.P23, he would vehemently contend that the half burnt shirt and the bottle which were recovered from the scene of occurrence were found with the content of petrol and not kerosene. Therefore, he prays that the judgment of conviction and sentence passed by the Trial Court may be confirmed. 15. The occurrence is said to have taken place on 23. 2004 at about 6.30 pm at the house of PW2. PW1, father of the deceased and PW3, cousin of PW1 would state that PW2 came and informed them about the occurrence and therefore, they went to the scene of occurrence and saw Varadarajan with burn injuries. PW4 also would state that he heard PW2 crying for help immediately after the occurrence. .16. PW1, who is the father of the deceased Varadarajan, would state that he had not chosen to prefer any complaint immediately after the occurrence as he was under the impression that the injured Varadarajan would survive the burn injuries. Chinnasamy, PW3 would state that he was threatened with dire consequences by the accused and therefore, he had to inform Dr. Manimegalai, PW11, who admitted Varadarajan for treatment, that there was an accident on account of stove burst and thereby, Varadarajan sustained injuries. Chinnasamy, PW3 would state that he was threatened with dire consequences by the accused and therefore, he had to inform Dr. Manimegalai, PW11, who admitted Varadarajan for treatment, that there was an accident on account of stove burst and thereby, Varadarajan sustained injuries. It is very relevant to refer to the testimony of Dr. Manimegalai, PW11 at this stage. It is her categorical version that the injured Varadarajan himself informed her that the injuries were sustained by him on account of a stove burst. The occurrence had taken place in the village surroundings. The ghastly occurrence had not surfaced for about three long days. PW2 had not whispered anything to anyone till the death of Varadarajan in the hospital. No father would hide such an occurrence from the police scrutiny. The very fact that the injured and the relatives of the injured have come out with a version at the first instance that the deceased Varadarajan sustained injuries on account of a stove burst persuades us to doubt the subsequent version of the prosecution witnesses. If the deceased had not opened his mouth before the Doctor who treated him and had come out with a version for the first time before the learned Judicial Magistrate by way of dying declaration, we can place full reliance upon the testimony of the deceased. But, here, the evidence of the Doctor would speak to the fact that the deceased himself informed her at the first instance that the burn injuries he sustained were on account of accident. There is no reason to discard the version of the duty doctor. 17. The investigating officer, PW14 would state that PW2 had not informed him as to who poured petrol and set fire to Varadarajan. The First Information Report itself was given by PW1 only on 33. 2004 at about 12.00 noon. PW11 would state that she sent intimation, Ex.P10 to the police as on 30.3.2004 itself. The same has been received by the Inspector of Police, but, to our surprise, no action had been initiated on the basis of the intimation, Ex.P10 received by the Inspector of Police about the admission of Varadarajan with burn injuries into Government Hospital, Salem for treatment. .18. The same has been received by the Inspector of Police, but, to our surprise, no action had been initiated on the basis of the intimation, Ex.P10 received by the Inspector of Police about the admission of Varadarajan with burn injuries into Government Hospital, Salem for treatment. .18. Chinnasamy, PW3, would state that the deceased Varadarajan was taken from his house by A1 and A2 whereas the deceased, in the dying declaration, would state that he was taken from the house of one Chinnadurai, who was, unfortunately, not examined on the side of the prosecution. In the above facts and circumstances of the case, we find that at the first instance, the prosecution witnesses including the injured Varadarajan have come out with a version that the latter sustained injury on account of an accidental burst of stove. True it is, the injured Varadarajan has come out with a version that A1 and A2 caused his death by pouring petrol and set fire to him before the learned Judicial Magistrate, PW7 during the course of dying declaration. The learned Judicial Magistrate has also, having ascertained the conscious and fit state of mind of the injured Varadarajan, has chosen to record his statement. But, we genuinely doubt the second version of the injured Varadarajan before the learned Judicial Magistrate that it was a case of murder. 19. As rightly pointed out by the learned Additional Public Prosecutor for the State, the chemical examiners report, Ex.P23 would disclose that the half burnt shirt and the bottle were found with the content of petrol. There is no evidence to establish as to how those two Material Objects have been preserved by the investigating officer after recovery. There is every chance for tampering of these Material Objects before their despatch to the chemical examiner. Further, the presence of content of petrol in those Material Objects alleged to have been recovered at the instance of the accused does not even distantly establish the case of prosecution that these accused poured petrol and set fire to the deceased Varadarajan. 20. Even as per the version of PW2, it is found that when he was in front of the house cleaning utensils, the occurrence took place inside his house. He had not chosen to state before the investigating officer during the course of interrogation that he actually witnessed A2 pouring petrol and A1 setting fire to him. 20. Even as per the version of PW2, it is found that when he was in front of the house cleaning utensils, the occurrence took place inside his house. He had not chosen to state before the investigating officer during the course of interrogation that he actually witnessed A2 pouring petrol and A1 setting fire to him. There is a material improvement in the matter of distributing lethal overtact to A1 and A2 during the course of giving evidence by PW2. .21. PW6, who was examined after a long time by the investigating officer, would come out with a story that A1 and A2 got petrol from him. It is not his case that he sold petrol to A1 and A2. Considering the nature of evidence available on record, we find that PW6 is a brought up witness by the prosecution. The ocular testimony of PW2 and the res gestae version of P.Ws.1 and 3 do not inspire judicial confidence. The second version of the injured Varadarajan, taking a material departure from the first version, is found to be totally unreliable. As rightly pointed out by the learned Senior Counsel for the accused, doubt writ large on the version of the prosecution as to the complicity of A1 and A2 in the crime of murder. Therefore, we have no hesitation to conclude that the prosecution has miserably failed to bring home the guilt to the accused by establishing beyond reasonable doubt that it was only the accused who committed the ghastly crime of murder of Varadarajan by setting fire after pouring petrol on him. The Trial Court has misdirected itself without adverting to the contradictory versions of witnesses on the side of the prosecution and has come to a wrong conclusion that A1 and A2 authored the crime of murder. The judgment of conviction and sentence, under the above facts and circumstances, warrants interference by us. 22. Therefore, the judgment of conviction and sentence passed by the Trial Court in S.C.No.32 of 2005 stands set aside. A1 and A2 are found not guilty of the offence under section 302 read with 34 IPC. They are set at liberty and are directed to be released forthwith if their custody is not required in connection with any other case. Fine amount, if any, paid shall be refunded to them. The criminal appeal stands allowed.