IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.9.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.JEYAPAUL Crl.A.No. 217 of 2009 1. Raja 2. Venkateshan @ Sultan .. Appellants/Accused 2 & 3 Vs. State Rep by the Inspector of Police, Ponneri Police Station Tiruvallur district. .. Respondent/Complainant Crime No.251 of 2007 Prayer : Appeal against the Judgment, dated 22.1.2009, passed in S.C.No. 251 of 2007 on the file of the Principal Sessions Judge, Thiruvallur. For Appellant :: Mr. V.Murugesan For Respondent :: Mr. Hassan Mohamed Jinnah Addl.P.P. J U D G M E N T (The Judgment of the Court was made by M.JEYAPAUL, J.) There are three accused in Sessions Case No. 251 of 2007 on the file of the Principal Sessions Judge, Thiruvallur, and they were convicted and sentenced to undergo Life Imprisonment and to pay a fine of Rs.1,000/- each, in default, to undergo one year Rigorous Imprisonment each for the offence Section 302 r/w 34 IPC by judgment dated 22.1.2009. Though all the three accused were convicted, only A.2 Raja and A.3 Venkateshan @ Sultan have preferred the present appeal. 2. On the side of the prosecution, as many as 11 witnesses were examined and 19 documents and 4 material objects were marked. Neither oral nor documentary evidence was let in on the side of defence. https://hcservices.ecourts.gov.in/hcservices/ 3. The sum and substance of the case of the prosecution, as unfolded by the witnesses, reads as follows:- A.1 Munusamy, A.2 Raja, A.3 Venkateshan @ Sultan and the deceased Manickkam were friends. They used to play cards in an old dilapidated hospital building at Thiruvayarpadi in Ponneri. P.W.1 Masthani is the wife, P.W.2 Mari is the brother, P.W.5 Arputham is the mother and P.W.6 Chandran is the brother-in-law of the deceased Manickkam. Manickkam came down to his house at Balaji Nagar, Ponneri, at about 4.00 p.m. on 25.7.2006 after completing his work. After taking a bath, he set out informing P.W.1 Masthani, his wife, that he was proceeding to the market. P.W.4 Babu, one of the friends of Manickkam, spotted Manickkam playing cards with all the three accused at about 8.00 p.m. on 25.7.2006 in an old dilapidated hospital building. On 25.07.2006 at about 12 midnight P.W.1 Masthani, on the door being tapped, opened the same and shocked to see her husband Manickkam arrived there with burn injuries. When she enquired, Manickkam informed her that A.2 Raja and A.3 Venkateshan @ Sultan caught hold of him and A.1 Munusamy on his part poured kerosene and set fire to him. P.W.5 Arputham, mother of the deceased Manickkam, was informed by P.W.1 Masthani about the burn injuries sustained by Manickkam. P.W.5 Arputham called P.W.6 Chandran to accompany her. P.W.2 Mari also accompanied P.W.5 Arputham to the house of P.W.1 Masthani to see the injured Manickkam. Manickkam disclosed to P.W.5 Arputham that all the three accused jointly set fire to him. P.W.2 Mari was present at the time when such an information was passed on by the injured Manickkam to P.W.5 Arputham. Manickkam also disclosed to P.W.6 Chandran, when he went over there to see him, that A.2 Raja and A.3 Venkateshan @ Sultan caught hold of him and A.1 Munusamy poured kerosene and set fire to him. P.W.1 Masthani made arrangement to take the injured Manickkam to Government Hospital, Ponneri. One Rahim Basha took the injured Manickkam to Government Hospital, Ponneri. Thereafter, the said Rahim Basha, P.W.6 Chandran and P.W.2 Mari took him to Government Kilpauk Medical College Hospital, Chennai, through an Ambulance. On 26.7.2006, at 5.00 p.m., the injured Manickkam died. P.W.1 Masthani proceeded to Ponneri Police Station and lodged Ex.P1 Complaint with P.W.11 Inspector Thirunavukkarasu. He having received the complaint at 10.00 p.m. on 26.7.2006, registered a case in Crime No.241/2006 under Section 302 IPC. He prepared Ex.P11 First Information Report and despatched the same to the learned Judicial https://hcservices.ecourts.gov.in/hcservices/ Magistrate and copies thereof to the Higher Officers concerned. P.W.11 Inspector Thirunavukkarasu rushed to the scene of occurrence and having found that it was impossible to prepare any sketch during night, came down at 5.00 a.m. on 27.7.2006 and prepared Ex.P2 Observation Mahazar in the presence of P.W.3 Kumar and another witness by name Velu. He drew Ex.P12 Rough sketch in the presence of the very same witnesses. He examined those two witnesses and recorded their statements. He also enquired P.W.1 Masthani, P.W.2 Mari, P.W.5 Arputham and other witnesses who were present over there and recorded their statements. P.W.11 Inspector Thirunavukkarasu proceeded to Government Kilpauk Medical College Hospital, Chennai, and held Inquest on the dead body of Manickkam between 8.45 a.m. and 10.00 a.m. on 27.7.2006 and prepared Ex.P13 Inquest Report in the presence of Panchayatars and witnesses. P.W.7 Dr. C.Manohar having received Requisition from P.W.11 Inspector Thirunavukkarasu through P.W.10 Head Constable Thirunavukkarasu, commenced the post-mortem examination on the body of Manickkam at 1.25 p.m. on 27.7.2006 and found the following:- "INJURY: Epidermo-dermo epidermal burns with denuded cuticle exposing the reddish area seen over the chest and abdomen, front of left upperarm, scattered area over back of both upper limbs, front and back of both lower limbs and part of back of the trunk (70% Burns). No other external or internal injury is made out. Both thumbs are spared. Gentian violet ink mark seen over left big toe. Part of left palm involved. HEART :Normal in size. Cut section: All chambers contain clotted blood. CORONARY VESSELS : Patent LUNGS : Cut section : Congested. HYOID BONE : Intact. TRACHEA : Intact STOMACH : 200 C.C. of yellow colour fluid present. No specific smell. LIVER : Normal, Cut section : Congested. SPLEEN : Normal, Cut section : Congested. https://hcservices.ecourts.gov.in/hcservices/ KIDNEYS : Normal, Cut section : Congested. INTESTINE : Distended with gas BLADDER : Empty PELVIS : Intact SCALP : Intact SKULL BONES : Intact MEMBRANES : Intact BRAIN : Normal SPINAL COLUMN : Intact." He has opined in Ex.P3 Post-mortem certificate that the deceased would appear to have DIED OF HYPOVOLEMIC SHOCK DUE TO BURNS. P.W.11 Inspector Thirunavukkarasu arrested A.1 Munusamy and A.2 Raja at 1.30 p.m. on 27.7.2006. They voluntarily gave confession statements in the presence of P.W.8 Punniyakotti and P.W.9 Lakshmanan. Ex.P14 is the Admissible portion in the confession statement given by A.3 Venkateshan @ Sultan and Ex.P15 is the Admissible portion in the confession statement given by A.1 Munusamy. On the basis of information given by A.1 Munusamy and A.3 Venkateshan @ Sultan, P.W.11 Inspector Thirunavukkarasu arrested A.2 Raja at 3.30 p.m. on the same day and recorded the statement given by him. Thereafter, P.W.11 Inspector Thirunavukkarasu proceeded along with the accused and the witnesses to the scene of occurrence and recovered M.O.1 Three litre plastic Can with 300 ml. of kerosene, M.O.2 Half burnt Lungi, M.O.3 Half burnt Shirt, M.O.4 Half burnt Banian and M.O.5 Half burnt Underwear from there in the presence of P.W.8 Punniyakotti and P.W.9 Lakshmanan under relevant Mahazar Ex.P16 . P.W.11 Inspector Thirunavukkarasu submitted Ex.P17 Requisition to the learned Judicial Magistrate concerned to send the Material Objects for chemical examination. Based on Ex.P18 Communication sent by the learned Judicial Magistrate along with the Material Objects, the Material Objects were analysed and Ex.P19 Chemical Examination Report was submitted by the Chemical Examiner. P.W.11 Inspector Thirunavukkarasu having completed the investigation, laid the Final Report as against the accused on 29.9.2006. https://hcservices.ecourts.gov.in/hcservices/ 4. All the three accused have come out with a total denial of the incriminating circumstances spoken to by the witnesses during the proceedings conducted by the trial Court under Section 313 CrPC. 5. The case of the prosecution is that A.1 Munusamy poured kerosene and set fire to the deceased Manickkam after 10.00 p.m. on 25.7.2006 when A.2 Raja and A.3 Venkateshan @ Sultan caught hold of him due to previous enmity and committed murder. 6. The prosecution heavily relies upon the oral dying declaration alleged to have been given by the injured Manickkam to P.W.1 Masthani, P.W.5 Arputham and P.W.6 Chandran, the evidence of P.W.4 Babu to the effect that he saw the deceased Manickkam in the company of the accused just before the occurrence, recovery of the Material Objects on the basis of the admissible portions found in the confession statements of A.1 and A.3, and the medical evidence available on record. 7. P.W.7 Dr. C.Manohar conducted the post-mortem examination on the dead body of Manickkam. Having thoroughly conducted autopsy on the dead body of Manickam, he has given an opinion that 70% burns were found on the Chest, abdomen, front portion of left upper arm, back of both upper limbs, front and back of both lower limbs and part of back of the trunk of the deceased Manickkam. Of course, both thumbs were spared without any burn injury. He has given an opinion that the deceased died of HYPOVOLEMIC SHOCK DUE TO BURNS. Therefore, we have no difficulty in arriving at a conclusion that Manickkam had died due to burn injuries. 8. The prosecution will have to establish that the appellants, ranked as A.2 and A.3, authored the crime as alleged by the prosecution. Let us first take up the alleged oral dying declaration given by the deceased Manickkam to P.W.1 Masthani, P.W.5 Arputham and P.W.6 Chandran. The learned counsel for the appellants/A.2 and A.3 would vehemently submit that P.W.1 Masthani, P.W.2 Mari, P.W.5 Arputham and P.W.6 Chandran would not have been present at the time when the injured Manickkam was admitted to the hospital inasmuch as one Rahim Basha had admitted the injured to the hospital. It is his further submission that the injured Manickkam, who sustained 70% burn injuries, would not have travelled about one kilometre to reach his house to inform P.W.1 Masthani, P.W.5 Arputham and P.W.6 Chandran about the occurrence. Further, there is some contradictory version in the evidence of P.W.1 Masthani and P.W.5 Arputham as to the time at which the injured Manickkam arrived at the house and disclosed about the occurrence. Therefore, he would submit that it is totally unsafe to rely upon the alleged oral dying declaration given by the injured Manickkam to P.W.1 Masthani, P.W.5 Arputham and P.W.6 Chandran. https://hcservices.ecourts.gov.in/hcservices/ 9. Per contra, the learned Additional Public Prosecutor would submit that P.W.1 Masthani, P.W.2 Mari, P.W.5 Arputham and P.W.6 Chandran have spoken in one voice about the dying declaration given by the injured Manickkam to P.W.1 Masthani, P.W.5 Arputham and P.W.6 Chandran. Therefore, there is no reason to reject the testimonies of close relatives who have come out with a version that the injured Manickkam, gripped with the apprehension of death, disclosed the reason for the injuries he sustained. 10. P.W.1 Masthani would state that the injured Manickkam arrived at her house at 12 mid-night on 25.7.2006 and informed her that A.2 Raja and A.3 Venkateshan @ Sultan caught hold of him and A.1 Munusamy poured kerosene and set fire to him. P.W.6 Chandran, who is none other than the brother-in-law of the deceased Manickkam, would state that P.W.5 Arputham, the mother of the deceased Manickkam, came down to his house and woke him up at 10.00 p.m. on 25.7.2006 and informed him of the injuries sustained by the deceased. Therefore, we find that there is a lot of variation with respect to the time at which the injured Manickkam gained entry into his house after the occurrence. 11. P.W.1 Masthani has not spoken about the arrival of P.W.2 Mari, P.W.5 Arputham and P.W.6 Chandran when her husband came to her house with a lot of burn injuries on his person. P.W.1 Masthani has categorically deposed that it was only Rahim Basha who took the injured Manickkam to the local Government Hospital at Ponneri for treatment. Had P.W.2 Mari, brother of the deceased Manickkam, P.W.5 Arputham, mother of the deceased Manickkam, and P.W.6 Chandran, brother-in-law of the deceased Manickkam, been present at 10.00 p.m. or 12 mid night, as the case may be, in the house of P.W.1 Masthani, they would have definitely accompanied the injured Manickkam to the hospital. Rahim Basha, a third person, would not have taken the injured and admitted him to hospital for treatment. 12. It is the admitted position that the scene of occurrence, namely, an old dilapidated hospital building, is located about one kilometre from the house of P.W.1 Masthani. It is on record that the injured Manickkam had sustained 70% burn injuries. On 26.7.2006, the next day, at 5.00 p.m., the injured Manickkam had died in the hospital itself in spite of the treatment given to him. It is totally unbelievable that a person, who sustained 70% burn injuries, walked about one kilometre during midnight on his own without anybody's help and reached his house to inform his wife and other relatives about the occurrence. P.W.1 Masthani and P.W.2 Mari would state that immediately after giving water to the injured Manickkam, he slipped into coma. In the above circumstances, we very much doubt the conscious state of mind of the injured Manickkam. The investigating agency also had not taken any step to produce the https://hcservices.ecourts.gov.in/hcservices/ medical records to establish that the injured Manickkam was conscious at the time when he was admitted to the hospital for treatment. 13. P.W.6 Chandran would state that it was only P.W.5 Arputham who called him to accompany her to the house of P.W.1 Masthani to see the injured Manickkam. But, P.W.5 Arputham had not supported such a version of P.W.6 Chandran. As already pointed out, the presence of P.W.2 Mari, P.W.5 Arputham and P.W.6 Chandran at the house of P.W.1 Masthani was not at all spoken to by P.W.1 Masthani. The very fact that none of them accompanied the injured Manickkam to the local hospital for treatment, would strengthen the case of the defence that no one was present when the injured Manickkam arrived at his house. 14. P.W.11 Inspector Thirunavukkarasu, Investigating Officer in the case, has categorically admitted that all Statements recorded under Section 161 CrPC from various witnesses on 27.7.2006 reached the Court only on 13.8.2006. The above facts and circumstances throw doubt on the alleged oral dying declaration given by the injured Manickkam to P.W.1 Masthani, P.W.5 Arputham and P.W.6 Chandran. Therefore, it is totally unsafe to record conviction based on the alleged oral dying declaration given by the injured Manickkam to them. 15. It is the case of the prosecution that the deceased Manickkam had illicit affair with the wife of A.1 Munusamy. On account of such a motive, A.2 Raja and A.3 Venkateshan @ Sultan caught hold of Manickkam and A.1 Munusamy set fire to him and caused his death. No one has spoken to such an illicit relationship the deceased Manickkam developed with the wife of A.1 Munusamy. Therefore, the motive part of the case has not been established by the prosecution. 16. Coming to the "last seen" theory projected through P.W.4 Babu, a friend of the deceased Manickkam, we find that he has spoken to before the trial Court that when he was proceeding to attend to his work at about 8.00 p.m. on 25.7.2006, he spotted the deceased Manickkam playing cards with the accused at an old dilapidated hospital building. P.W.11 Inspector Thirunavukkarasu, Investigating Officer in the case, has deposed that P.W.4 Babu during the course of examination during investigation had not informed him that he spotted the deceased Manickkam playing cards with the accused while proceeding to attend to his work. On the other hand, P.W.4 disclosed during investigation that he also played cards along with the accused and the deceased at about 8.00 p.m. on 25.7.2006. We find that the statement recorded from him on 27.7.2006, reached the Court only on 13.8.2006. Therefore, we have every reason to be reluctant to place reliance upon the "last seen" theory projected by the prosecuting agency through P.W.4 Babu. https://hcservices.ecourts.gov.in/hcservices/ 17. Coming to the arrest of the accused and the recovery of the Material Objects, we find that P.W.8 Punniyakotti and P.W.9 Lakshmanan have completely turned hostile to the case of the prosecution that it was only in their presence A.1 to A.3 were arrested and recoveries of the Material Objects were made based on the admissible portions found in the confession statements of A.1 Munusamy and A.3 Venkateshan @ Sultan. Of course P.W.11 Inspector Thirunavukkarasu has spoken to the recovery of M.Os.1 to 5 from the scene of occurrence. 18. The learned counsel appearing for the appellants/ A2 and A.3 would straight away draw our attention to the evidence of P.W.11 Inspector Thirunavukkarasu, who would admit that at about 6.00 a.m. on 27.7.2006, he rushed to the scene of occurrence and prepared Ex.P2 Observation Mahazar and at that point of time M.Os.1 to 5 were not found over there. Therefore, the learned counsel appearing for the appellants would submit that the prosecuting agency has come out with an artificial version that at about 5.00 p.m. on the very same day these Material Objects were found at the scene of occurrence. 19. As rightly pointed out by the learned counsel appearing for the appellants, we find that P.W.11 Inspector Thirunavukkarasu has categorically admitted that he had not referred to the presence of M.Os.1 to 5 in Ex.P2 Observation Mahazar prepared by him as those Material Objects were not at all available at 6.00 a.m. on 27.7.2006 when he paid a visit to the scene of occurrence. Artificially, he has come out with a version that when he paid a visit along with A.1 to A.3, P.W.8 Punniyakotti and P.W.9 Lakshmanan to the scene of occurrence at 5.00 p.m. on 27.7.2006, he found M.Os.1 to 5 over there. Firstly, P.W.8 Punniyakotti and P.W.9 Lakshmanan, the witnesses concerned, have completely turned hostile to the version of the prosecution that in their presence M.Os.1 to 5 were recovered on the basis of the admissible portions in the confession statements given by A.1 Munusamy and A.3 Venkateshan @ Sultan. Secondly, P.W.11 Inspector Thirunavukkarasu himself has provided a clue that these Material Objects had been planted at the scene of occurrence subsequent to his visit at 6.00 a.m. on 27.7.2006. Therefore it is totally unsafe to rely upon the alleged arrest of the accused and the recovery of M.Os.1 to 5 in the above facts and circumstances of the case. 20. With heavy heart we will have to make a comment on style of investigation done by the Investigating Officer, who had not chosen to collect the relevant medical records from Government Kilpauk Medical College Hospital, Chennai. Of course, he came out with some explanation as to why he could not collect any medical record from the Government Hospital, Ponneri. It is his version that there was no record available with Government Hospital, Ponneri, https://hcservices.ecourts.gov.in/hcservices/ regarding admission of the injured Manickkam for treatment. But, no explanation was furnished by P.W.11 Inspector Thirunavukkarasu as to why he had not taken any step to collect the relevant medical records from Government Kilpauk Medical College Hospital, Chennai. He had also not examined the doctor who admitted the injured Manickkam to the said hospital and the doctor, who, in fact, gave treatment to the victim up to 5.00 p.m. on 26.7.2006. 21. The evidence of P.W.7 Dr. C.Manohar would disclose that he was armed with the copy of the Accident Register at the time when he deposed before the trial Court. Of course, the investigating agency had not taken care to mark even that document which surfaced. But quite unfortunately, the trial Court also had not taken care to mark that document through P.W.7 Dr. C.Manohar, who chose to refer to that document before the trial Court. If the investigating agency had seized those medical records, it would definitely throw light on the state of mind of the injured Manickkam and the first version about the occurrence divulged to the doctor by the person who brought the injured to the hospital for treatment. Those two vital materials were not available before the trial Court on account of the laxity exhibited by the investigating agency. 22. Yet another important aspect has been highlighted by the learned counsel appearing for the appellants. It is his submission that Ex.P3 Post-mortem Certificate would disclose that there is some clue for having taken the left toe impression of the deceased Manickkam. He would also refer to the evidence of P.W.6 Chandran, who would categorically speak to the fact that a statement was, in fact, recorded from the injured Manickkam before his demise and his thumb impression as well as his toe impression was obtained. Therefore, he would submit that the investigating agency for reasons best known had completely suppressed relevant documents from the purview of the Court. 23. The submission made by the learned counsel appearing for the appellants is found to be well founded. We carefully scanned Ex.P3 Post-mortem Certificate issued by P.W.7 Dr. C.Manohar. He has recorded the fact that some ink mark was found on the left toe of the deceased Manickkam at the time of conducting autopsy. The evidence of P.W.7 Dr. C.Manohar given by him in the back ground of Ex.P3 Post-mortem Certificate has lent corroboration to the version of P.W.6 Chandran that a statement from the injured Manickkam was obtained with his thumb impression as well as toe impression. No explanation is forthcoming from the side of the prosecuting agency as to how the left big toe of the injured Manickkam was found with ink mark. The aforesaid version of P.W.6 Chandran also was not controverted by the prosecuting agency. We find that some material aspect of the case inconvenient to the prosecution has been suppressed in this case for reasons best known. https://hcservices.ecourts.gov.in/hcservices/ 24. In the facts and circumstances of the case, we find that the prosecution has miserably failed to establish beyond reasonable doubt that it was only these appellants/A.2 Raja and A.3 Venkateshan @ Sultan who caught hold of the injured Manickkam facilitating A.1 Munusamy to pour kerosene and set fire to him and as a result of which, the injured Manickkam was done to death. Therefore, we find that the judgment of the trial Court convicting these appellants/A.2 and A.3 for offence under Section 302 r/w 34 IPC is liable to be set aside. 25. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the Appellants/Accused 2 & 3 in Sessions Case No. 251 of 2007 on the file of the Principal Sessions Judge, Thiruvallur, are set aside and the Appellants/Accused 2 & 3 are acquitted of the charge and the fine amount paid, if any, is to be refunded to them. The Appellants/Accused 2 & 3 are directed to be released forthwith if their custody is not required in any other case. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar pb To 1. The Principal District and Sessions Judge,Thiruvallur. 2. The Judicial Magistrate No.1, Thiruvallur. 3. -do- Thro' The Chief Judicial Magistrate, Thiruvallur. 4. The Inspector of Police, Ponneri Police Station, Thiruvallur Dist. 5. The Superintendent of Prison, Central Prison, Vellore. 6. The Superintendent of Prison, Central Prison, Puzhal, Chennai. 7. The Director General of Police, Chennai 4. 8. The District Collector, Thiruvallur. 9. The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/ 10. The Section Officer, Criminal Section, High Court, Madras 104. + 1 CC to Mr.V.Murugesan,Advocate,SR.47897 Crl.A.No. 217 of 2009 SP(CO) EM/6.10 https://hcservices.ecourts.gov.in/hcservices/