The case against the accused/appellant is that, the deceased Saranyawas the wife of the appellant and they lived separately as tenant in theupstairs of the house belonged to one Babu.The appellant often quarrelledwith her wife in a drunken mood.On 25.01.2013, from the dawn itself, theappellant and his deceased wife were quarreling with each other and they werealso warned by their house owner, namely Babu.After pacification, both ofthem went to their house at about 12.00 O' clock in the night.On 26.01.2013,at about 00.30 a.m. smoke emanated from the appellant's house and on noticingthe same, the house owner and another person by name Muthuvel came out of their house.At that time the appellant, also came out of his house hurriedlyand when the house owner and said named person enquired the appellant, the appellant replied that he done away his wife, since he has no peace at all inher existence.When both the house owner and Muthuvel entered into the house of appellant, they noticed that the deceased was burning and they tried toextinguish the fire, however, the deceased burnt completely.The Prosecutionfurther alleged that during the course of heated arguments, the appellantdashed her wife's head into the wall and thus, murdered her.The appellant herein was tried by the learned Principal SessionsJudge, Tuticorin, in S.C.No.128 of 2014, for charges under Section 302 and302 r/w 201 IPC.The learned Trial Judge found that the appellant/accusedguilty of the charges under Section 302 IPC and sentenced him to undergo lifeimprisonment and to pay a fine of Rs.1,000/- with default sentence of sixmonths rigorous imprisonment; and 7 years rigorous imprisonment for theoffence under Section 302 r/w 201 IPC with default sentence of rigorousimprisonment for three months.The sentences imposed were ordered to run concurrently.Aggrieved by the judgment of conviction and sentence passed bythe trial court, the accused has preferred the present Criminal Appeal beforethis Court.In order toscreen the murder, the appellant set fire on her body.Thus, the accused wascharged for the offences as stated above.Before the trial court, in order to substantiate its case, theprosecution examined PWs-1 to 16, marked Exs.P1 to P23 and produced MOs1 toOn the side of the accused, neither any person was examined nor anydocument was marked.Out of the above said witnesses PW1/Muthuvel/complainant and PW2/Babu, are the neighbours of the appellant.They have spoken about theoccurrence.However, they did not support the case of the prosecution andhence they were treated as hostile witnesses.Similarly PW3/Mohan, PW4/Ayya Durai, PW5/Vikram and PW6/Ramakrishnan have been treated as hostile witnesses.PW7/Anthonysamy, the father of the deceased Saranya, has spoken about the quarrel between his deceased daughter and the appellant.PW10, is the Doctor who conducted postmortem on the deceased Saranya and he gave Ex.P9/Postmortem certificate.PW14, is the Doctor, who gave treatment to the accused on 26.01.2013 and he has given Ex.P14/Accident Register, inwhich he has mentioned as follows:-?Alleged H/O sustained burns while burning his wife at about 12.30 a.m.on 26.01.2013 at his residence.?The learned trial Judge, after completing the procedure andconsidering the oral and documentary evidence let in, and upon hearing bothsides, convicted and sentenced the accused as aforementioned, resulting infiling of the present Appeal before this Court.7.The point that arises for consideration in this Appeal is as towhether the judgment of conviction and sentence passed by the trial court issustainable in law or not?Learned Senior counsel for the appellant submitted that P.Ws.1 to 5,who are stated to have seen the occurrence and examined as eye-witnesses to the occurrence, have not supported the case of the prosecution and they haveturned hostile and hence the conviction of the appellant is liable to be setaside.He would further submit that the trial court has based its convictiontaking into account the statement said to have been made by the accused toP.W.14 at the time when he was taken by the Police for treatment for the burninjuries sustained by him at the time when he tried to save his wife when shepoured kerosene and set herself on fire to commit suicide and recorded byP.W.14 in Ex.It is the contention of the learned Senior Counsel forthe appellant that since the said statement was given by the appellant at thetime when he was in the custody of police, the same shall not be proved, asper section 26 of the Indian Evidence Act and therefore the conviction of theappellant is liable to be set aside.P.Ws.1, 2, 4 and 5 in their evidence have stated that in the midnight of25.01.2013, they saw smoke coming out from the house where the deceased and the accused were residing and upon seeing the same, they rushed to the house of the accused and found the deceased in flames and immediately they put-offthe fire by pouring water and to that extent their evidence is clear andcogent.He would further submit that the accused himself has admitted beforeP.W.14, the doctor, who gave treatment to the burn injuries sustained by him,that he sustained injuries when he set fire on the body of his wife, thedeceased, which has been duly recorded by P.W.14 in Ex.P-14, Accident Register issued to the accused.He would further submit that from theevidence of Doctor who conducted postmortem and issued postmortem certificate, it is clear that the deceased was done to death before her bodywas set on fire.Therefore, it is his submission that the trial court aftertaking into account all the above has come to conclusion it is the accusedwho has murdered his wife and thereafter in order to screen the evidence hehas set fire on her body and thus convicted the appellant under Sections 302and Section 302 read with 201 IPC and the same does not require any interference, except confirmation at the hands of this Court.We have considered the above submissions and perused the materials on record, carefully.It is admitted that the accused and the deceased were husband andwife and they were living in a house belonged to P.W.2, as tenants, for aboutthree months prior to the occurrence.It is the evidence of P.Ws.1, 2, 4 and5 that there used to be quarrel between the spouses, often and on someoccasions they pacified them.It also emerges from the evidence of P.W.7,father of the deceased and P.W.11, mother of the deceased, that theirdaughter used to call them over phone and complain about the conduct of theaccused in quarrelling with her.There is no denial by accused to the saidfacts.It is the case of the prosecution that at the midnight of25.01.2013, when the accused and the deceased were alone in the house, the accused murdered the deceased by causing such injuries and in order to screenthe evidence, he has set fire on the body of the deceased and in the sametransaction, he also sustained burn injuries.Based on the above statedaccusation, it is to be seen whether it was the accused who caused the deathof the deceased and tried to screen the evidence.Though P.Ws.1 to 5 have turned hostile and did not support the prosecution, it is settled lawthat their evidence to the extent it supports the prosecution case can beconsidered and appreciated.It is the evidence of P.Ws.1, 2, 4 and 5 that atthe midnight of 25.01.2013, they found smoke emanating from the house of theaccused and when they rushed there they found the deceased in flames and immediately they put-off flames by pouring water.But, they did not supportthe case of the prosecution that on 25.01.2013 at about 8.00 p.m., there wasa quarrel between the accused and the deceased and they pacified them.But,the evidence of P.W.7 and P.W.11, the parents of the deceased, would go toshow that their daughter phoned to them at 8.30 p.m. on 25.01.2013 andcomplained about the conduct of the accused in quarrelling with her and alsoinformed them that P.W.1 and P.W.2 intervened and pacified.If the above saidevidence of P.Ws.7 and 11 is considered along with the admitted evidence ofP.Ws.1, 2, 4 and 5, their evidence cannot be brushed aside merely on theground that they are interested witnesses, as it inspires the confidence ofthe Court.It is not the case of the appellant that he and his wife, thedeceased, never quarrelled with each other.Thus, from their evidence it isclear that on 25.01.2013 night the accused and the deceased were alonepresent together in the house and in such circumstances, it is for the Courtto presume that it is the appellant who had committed the offence.When the aboveincriminating materials were put to the accused under Section 313 Cr.P.C., hehas only stated that they were all false and he did not come out with anyexplanation to the satisfaction of the Court.In the above circumstances,the trial court has correctly come to the conclusion that the accused waspresent in the house at the time of occurrence.It is evident from the evidence of P.W.14 that on 26.01.2013 at10.15 a.m., the accused was brought before him for treatment to the burninjuries found on his body and when enquired, he stated that he sustainedthose injuries when he set her wife on fire.The said statement was relied on by the Trial Court only to come to the conclusion that the appellant/accused waspresent at the time of incident in the scene of occurrence.According to him, he found superficial burns all over the body andthe wounds were pale in colour.He found the following ante-mortem injuries:?(i) A contusion of size 6 cms x 4 cms x 1 cm seen over the left sideof forehead.?On dissection of scalp, skull and dura, he found the following:?Scalp contusion of size 8 cms x 6 cms seen over the left frontalregion.Sub-arachanoid haemorrhage seen over the left occipital lobe.?It is his opinion that the deceased would appear to have died ofcomplications of head injury and the death would have occurred 12-24 hoursprior to autopsy and no poison was detected in the viscera analysed.Thus, it is clear from the evidence of P.W.10, the doctor whoconducted autopsy on the body of the deceased, that the death of the deceasedwas not due to the burn injuries but it was due to the complications of headinjury.From the above, it becomes clear that after murdering his wife bycausing the above said head injury, in order to screen the commission of theoffence of murder, the appellant/accused has poured kerosene and set fire onthe body of the deceased.If at all the accused/appellant did not commitmurder of his wife and his wife attempted to commit suicide, as a normalprudent man, he would have sought for the assistance of his neighbours in theeffort of saving his wife.But, he did not do so.On the contrary, hisstatement before P.W.14 was that he sustained injuries when he set fire onthe body of the deceased.Further, if he did not commit any offence, on thearrival of police, he would have made a complaint to the police as to theoccurrence, but he failed to do so.This conduct of the appellant/accusedleads to the inevitable conclusion that it was this appellant/accused whocommitted the murder of the deceased and in order to screen the evidence, hehas set fire on the body of the deceased and thereby committed offencespunishable under Section 302 and Section 302 read with 201 IPC and liable tobe punished thereunder.The trial court has, after appreciating the evidencein detail, found the accused guilty under both the charges and sentenced himthereunder.We find no reason or ground to interfere with the wellconsidered judgment of the trial court.Connected miscellaneous petition is also dismissed.1.The Principal Sessions Judge, Tuticorin.2.The Inspector of Police, Tuticorin North Police Station, Tuticorin District.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..

Sections cited: Section 302 in The Indian Penal Code