Issack @ Jeyakaran Issack, v. The State Rep by Its,

JUDGMENT R.SURESH KUMAR, J This Criminal Appeal arise out of the conviction and sentence registered by the Additional District and Sessions Judge / FTC, Vellore District at Vellore, dated 30.07.2018 made in S.C.No.112 of 2017.

¶2The prosecution case is that, the appellant / accused was residing at C-7, Vasanthapuram Road, Pulianthope, Vellore and the deceased Sankar was residing at Door No.76, Rangasamy Nagar, backside of Alankar theatre.

¶3The deceased Sankar is the husband of one Asha, who is the sister of the appellant / accused. The marriage solemnised between the deceased Sankar and Asha 1 ½ years prior to 24.02.2017, the date of occurrence.

¶4The deceased since was having the habit of consuming alcohol regularly, there has been a constant quarrel between the husband and wife, i.e., the deceased and his wife Asha, with the result, Asha often would come back to the parental home and again would return back.

¶5Because of this attitude and the quarrel between them, as the sister of the appellant / accused very often come back and reside at the parental home, the appellant / accused got annoyed and therefore he was having in the mind to take revenge against the deceased.

¶6In order to achieve the goal of such revenge, on 24.02.2017 at about 7.30 p.m, while the deceased proceeding by walking near Nethaji stadium, the appellant / accused restrained the deceased and thrown a plastic pottalam, i.e., pocket which contain kerosene and set a fire by saying ,j;njhL bjhiye;J nghlh. Because of such act of the appellant / accused, the body of the deceased was burning, thereby he sustained burn injuries. Though he had been rushed to the Hospital and was taking treatment from 27.02.2017 till 01.03.2017, however, the deceased succumbed to such burn injuries on 01.03.2017. Therefore the earlier offence registered against the appellant / accused under Section 341 and 307 IPC was altered into 341 and 302 IPC.

¶7In this case, on behalf of the prosecution, 15 witnesses were examined. Ex.P.1 to Ex.P.17 were marked. There two Material Objects, i.e., M.O.1 and M.O.2 were produced and marked.

¶8In support of the prosecution case, though 15 witnesses were examined, none of them was eye witness. P.W.3, P.W.7, P.W.8, P.W.9 and P.W.10 turned hostile.

¶9P.W.1, one Anbu is the sister of the deceased, she deposed stating that, when she was working at the shop nearby which belongs to her husband, one of the customer had come and stated that, her brother, i.e., the deceased being burnt, thereafter she claimed to have rushed to the spot, where the people who were in the spot already poured water. She claimed to have joined with them and after extinguishing the fire, they took the deceased to the Adukambarai Government Hospital, where he was admitted as inpatient. However, in her cross-examination, the P.W.1 has stated that, because of the commotion between the husband and the wife, i.e., the deceased and the wife of the deceased who is the sister of the appellant / accused often return back to the parental home, the commotion and altercation would be taken place was the question asked, for which, the answer was in the negative. When further question was asked that, whether the occurrence was taken place before the people came and informed to her, she answered in the affirmative. She also stated that, what was the cause for such fire accident to the deceased, i.e., brother of P.W.1, she said that she was not aware. The relevant portion of her deposition in the cross-examination reads thus : "vd; jk;gp kidtp mtuJ mk;kh tPl;oy; ,Ug;ghh;/ vd; jk;gp kidtp nfhgpj;J bfhz;L jha; tPl;ow;F bry;tjhy; jfuhW elf;Fkh vd;why; mt;thW elf;fhJ/ rk;gtkhdJ $d';fs; te;J brhy;tjw;F Kd;ng Koe;Jtpl;L vd;why; rhpjhd;/ vd; jk;gpf;F jP tpgj;J vt;thW Vw;gl;lJ vd;W neuoahf vdf;F bjhpahJ

vd;why;

rhpjhd;/ kUj;Jtkidf;F ,ut[ 8/30 kzpf;F brd;wile;J

tpl;nld;/

ghpnrhjid bra;J

kzpf;F

ml;kpl; bra;Jtpl;lhh;fs;/ rk;gt jpdnk ,ut[ 11/00 kzpf;F nghyPrhh; thh;ow;F te;Jtpl;lhh;fs;/" She also deposed saying that, on the same day at about 11 'O' Clock, police people came to the ward.

¶10P.W.2 is the husband of P.W.1. He also in the chief examination has stated similarly as that of P.W.1. However, in the chief examination, he has further stated that, at the time of the occurrence, he was in the bunk shop, from that place, he cannot see the scene of occurrence and when he went there, already the fire was extinguished by pouring water and how he got fire on his body is not known to him. The relevant portion of the deposition in his chief examination reads thus : "ehd; rk;gtk; ele;jnghJ g';f; filapy; ,Ue;njd;. ehd; epd;w ,lj;jpypUe;J rk;gt ,lk; bjhpahJ/ ehd; ngha; ghh;j;j

nghJ

jz;zPh;

Cw;wp mizj;Jtpl;lhh;fs;/ vg;go vwpe;jhh; vd;W neuoahf bjhpahJ. nghyPrhh; tprhhpj;jhh;fs;/"

¶11In the cross-examination, the P.W.2 has stated that, what was the cause for such incident taken place is concerned, it is only an accident and no one caused such incident was the question, which was answered in affirmative by P.W.2. The relevant portion reads thus : "r';fUf;F

Vw;gl;l

tpgj;jhdJ vjph;ghuhj tpgj;J vd;Wk; mij ahUk; bra;atpy;iy vd;why; rhpjhd;/"

¶12P.W.3 and P.W.4 turned hostile. P.W.5 is none other than another brother of the deceased who was working in an out station and he had come only in the next day and therefore what he has stated is only a hearsay. In his deposition he has stated that, to a query that the appellant / accused does not have any connection with the occurrence and it is a set up one, the answer of the witness was that, he does not know anything directly. The relevant portion of the deposition reads thus : ",e;j Fw;wj;jpw;Fk; vjphpf;Fk; ve;j rk;ke;jKk; fpilahJ/ n$hof;fg;gl;l tpc&ak; vd;why; vdf;F neuoahf vJt[k; bjhpahJ/"

¶13P.W.6 is the younger brother of the deceased and he also stated the hearsay. P.W.7, P.W.8, P.W.9 and P.W.10 turned hostile.

¶14P.W.12 was the Sub-Inspector of Police and he claimed to have received information from Adukambarai General Hospital at about 2 a.m on

24.02.2017, i.e., early morning of 25.02.2017. Though he claimed to have recorded a statement, he has stated in his cross-examination that, before he obtained the statement from the deceased who had already given a statement before the Doctor, where he had stated that, he did not know who caused the burn injury to him. The relevant portion of his deposition reads thus : "r';fuhdth; ehd; thf;FK:yk; bgWtjw;F Kd;dhy; jdf;F fhak; miltpj;jJ ahh; vd;W bjhpahJ vd gzp lhf;lhplk; Twpa[s;shh;/"

¶15It is further to be noted that, P.W.1 in her cross-examination had recorded that, on the same day at about 11 'O' clock in the night, the police came to the ward, i.e., the Hospital, whereas P.W.12, Sub-Inspector of Police had stated that, he received the intimation first time from the Hospital only at 2 'O' clock in the night, i.e., early morning 2 'O' clock of 25.02.2017 and the P.W.12 in his cross-examination also has stated that, in the Ex.P.7, it has been mentioned that, the statement was recorded at 00.30 hours on

25.02.2017. P.W.12 stated that it was correct.

¶16Therefore contradictions can be noted here that, P.W.1 stated that, the police came to the Hospital by 11 p.m, whereas the Sub-Inspector of Police stated that, he had received information only at 2 a.m. However, he claimed to have recorded the statement at 00.30 hours.

¶17The Investigating Officer was examined as P.W.13, where he stated that, in the statement obtained by him from the accused, it has been mentioned the name of the father of the accused as Jagaiyan, however, the fact remains that, Jagaiyan is the father of the deceased Sankar. In this regard, when suggestion was made on behalf of the defence side, the Investigating Officer, i.e., P.W.13 has stated the following : "vjphpaplk;

bgwg;gl;l

xg;g[jy; thf;FK:yj;jpy; vjphpapd; je;ij bgah; $f;fa;ad; vd;W Fwpg;gplg;gl;Ls;sJ vd;why; rhpjhd;/ $f;fa;ad; vd;gJ ,we;J nghd r';fhpd; mg;gh bgah;/ vjphpia rk;gt ,lj;jpy; brhd;d neuj;jpy;

brhd;d

,lj;jpy; gpof;fhjjhy;

jhd;

,e;j

jtW Vw;gl;Ls;sJ vd;why; rhpjhd;/"

¶18In the cross-examination, P.W.14 has recorded the following : "fhar; rhd;wpy; ghjpf;fg;gl;l egnu milahsk; bjhpahj xU egh; vd;w tptuj;ij ghjpf;fg;gl;ltnu Twpdhuh my;yJ Tl te;jth; Twpdhuh vd;W Fwpf;ftpy;iy/ vdf;F m/j/rh/M/14 kw;Wk; 15I bghWj;J neuoahf vdf;F bjhpahJ nfhg;g[fis ghh;j;J jhd; rhl;rp mspj;njd;/"

¶19P.W.15 is the Judicial Magistrate, who obtained a statement as dying declaration from the deceased, where the deceased has stated the following : "mt;thW gjpt[ bra;ag;gl;l kuz thf;FK:yk; MdJ m/j/rh/M/Mh/17 MFk;/ mth; thf;FK:yj;jpypUe;J mth; TwpajhtJ mtuJ tpgj;jhdJ mtuJ kidtpapd; jk;gp Irhf; kw;Wk; mtuJ ez;gh;fs; mtiu tHpkwpj;J Irhf; mth; kPJ bgl;nuhiy Cw;wpajhft[k; mtuJ

ez;gh;fs;

fthpypUe;J bgl;nuhiy

vLj;J

Cw;wpajhft[k; fthpypUe;J

bgl;nuhiy

J}f;fp moj;jjhft[k; gpwF 3 ngUk; nrh;e;J jPf;Fr;rpia gw;w itj;J nehahsp kPJ nghl;ljhft[k; Twpa[s;shh;/"

¶20If at all this statement as dying declaration recorded by the Magistrate from the deceased is correct, it is not the single accused, i.e., the appellant plus three persons also according to the deceased had involved in the incident, however, the prosecution had not extended its arm to investigate who are all the other three persons who accompanied the appellant / accused and who also whether allegedly poured petrol and set fire on the body of the deceased.

¶21It is further to be noted that, there are three statements, one is to the Doctor, another is to the police and the third one is to the Magistrate. Each time the statement has got improved. In the statement given before the Doctor, the deceased stated that, he was not aware who was the person who caused such injury. However in the statement recorded by the police, it has been recorded as if that, he has fingered the appellant, but in the statement which was recorded as dying declaration by the Magistrate, it has been recorded as if that the deceased stated not only the name of the appellant but also the other three persons who also joined in the action of pouring the petrol and set fire on the body of the deceased.

¶22Therefore such a rampant contradiction which we are able to find out in these three statements makes it clear that, the version if at all had been made by the deceased, that has been improved from time to time, therefore the veracity of such statement is highly doubtful.

¶23That apart, in this case there has been no eye witness. Most of the witnesses have turned hostile. The very few witnesses who deposed before the trial court are the kith and kin of the deceased and more over all of them deposed stating that their statement were only based on hearsay. Moreover the police recorded that they received information first time on 24.02.2017 at night 2 'O' clock, that means, i.e., early morning of 25.02.2017. When that being so, the P.W.1 has recorded that, the police already came to the ward, i.e., the Hospital, where the deceased was admitted, at 11 p.m on

24.02.2017. Also to be noted that, P.W.12 has stated that, Ex.P,7 was recorded at 00.30 hours on 25.02.2017.

¶24If that being so, there is a complete self contradiction in the version of the prosecution with regard to the time of receipt of information, time of visiting the hospital, time of recording the statement and the time of recording the FIR. This itself makes the entire prosecution case as a fatal, apart from the lack of eye witnesses and also a junk of witnesses produced by the prosecution having become turned hostile.

¶25Besides, the three statement referred to, that is one to the Doctor, another to the Police Officer and another to the Magistrate have been improved from time to time, therefore its veracity is highly doubtful.

¶26Assuming that, the last statement given to the Magistrate is to be taken into account, the deceased has stated that, it is not only the appellant but other three persons who are friends of the appellant who also jointly acted upon by pouring petrol and set him fire. If that being so, why the investigation has not extended to investigate about the involvement of other three persons also is not known. This is clear lacuna on the part of the prosecution side.

¶27Considering all these aspects, we are of the considered view that, the prosecution by having a cogent evidence has not proved the case beyond reasonable doubt. Therefore, such a benefit shall be extended only to the appellant / accused. Therefore we have no hesitation to hold that, the conviction and sentence imposed by the trial Court in the impugned Judgment is liable to be interfered with.

¶28Resultantly, this Criminal Appeal is allowed and accordingly the conviction and sentence made in S.C.No.112 of 2017 dated 30.07.2018 on the file of the Additional District and Sessions Judge (FTC), Vellore are hereby set aside. Consequently, the appellant is acquitted from all the charges framed against him. Bail bonds and sureties executed by him shall stand cancelled. Fine amount, if any, paid by the appellant shall be refunded to him. (R.S.K., J.) (K.B., J.)

21.12.2023 Index : Yes / No Speaking Order : Yes / No tsvn To

¶1The Additional District and Sessions Judge (FTC) Vellore.

¶2The Inspector of Police (L&O), Vellore South Police Station, Vellore.

¶3The Public Prosecutor High Court of Madras, Chennai.

R.SURESH KUMAR, J. and

K.KUMARESH BABU, J. tsvn Judgment in Crl.A.No.530 of 2018

21.12.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 10.08.2023 Pronounced on : 21.12.2023 CORAM: THE HON'BLE MR. JUSTICE R.SURESH KUMAR AND THE HON'BLE MR.JUSTICE K.KUMARESH BABU Isaack @ Jeyakaran Issack ..... Appellant / Accused Vs. The State represented by Inspector of Police, (L&O), Vellore South Police Station, Vellore. ..... Respondent / Complainant Prayer : Criminal Appeal filed under Section 374(2) Cr.P.C., to set aside the conviction and sentence passed against him in S.C.No.112 of 2017 dated 30.07.2018 by the Additional District and Sessions Judge (FTC) at Vellore Court. For Appellant : Mr.V.Parthiban for Mr.R.Narendran For Respondent : Mr.R.Muniyapparaj, APP for Mr.M.Sylvester John