LexSREE VIJAYAKUMAR AND ANR. , versus STATE, BY INSPECTOR OF POLICE, KANYAKUMARI
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A SREE VIJA Y AKUMAR AND ANR. , v. STATE, BY INSPECTOR OF POLICE, KANYAKUMARI MAY 13, 2005 B (P. VENKATARAMA REDDI AND. P.P. NAOLEKAR, JJ.] Penal Code, 1860: ss. 34, 304(Part-JI), 323 and 324-Common intention-Death of victim C by burn injuries-One accused hitting the victim ,on head by a bottle-Bottle broke and liquid therein spread on victim-Another accused throwing a burning lamp on victim-Victim caught fire-One of the accused stabbing the witness who came to rescue the deceased-Held, accused woulcf not have shared common intention-These are random acts done without meeting of mind- D Accused hitting the deceased with bottle convicted and sentenced u/s 323- Accused throwing burning lamp on deceased convicted and sentenced uls 304 (Part-11)-For stabbing the witness accused convicted and sentenced uls 324. Four brothers, including the two appellants, were prosecuted for murder of one 'R' by setting him afire, and for attempting to murder PW- E I. The prosecution case was that there was enmity between the accused on the one side and the deceased 'R' and his brothers PWs-1 and 3 on the other. On the date of occurrence at about 7.30 P.M. when 'R' was going past the shop of A-2 (appellant No.2); A-1 (appellant No.1) started abusing him and hit a bottle on his head; the bottle broke and the liquid therein F spread on him; at that moment, A-2 threw a lighted kerosene lamp on him. R's body caught fire and he rolled on to the ground. As PW-1, was nearby tried to save 'R', three of the accused caught hold of him an_d the fourth one, namely, A-2, stabbed him on the chest. PW-3, who was at a nearby shop, and some others rushed to the scene and all the accused ran away. PWs 3 and 4 took the victims to the hospital. Before 'R' succumbed G to his injuries, his dying declaration was recorded. There was also a counter complaint by the accused wherein PWs 1 and 3 and the deceased were accu_sed of quarrelling with and causing injuries to two of the accused. The counter complaint was inquired into after a considerable delay in 1996 and was ultimately termed as a counter- H 398 SREE VIJA YAKUMAR v. STA TE, BY INSPECTOR OF POLICE 399 blast on the report of the deceased. A The trial court believed the prosecution case and convicted A-1 u/s 302 2nd s.324 r/w s.34 IPC. A-2 was convicted u/ss. 302 and 324 IPC. Both were sentenced to life imprisonment. A-3 and A-4 were convicted and sentenced u/s. 302 r/w s.34 and s.324 r/w s.34 IPC. On appeal, the High Court set aside the conviction of A-3 and A-4 u/s 302 r/w s.34 IPC and B convicted A-1 and A-2 u/s 302 r/w 34 IPC. Conviction of all the four u/s 324/34 was maintained. Aggrieved, A-1 and A-2 filed the present appeal. Allowing the appeal in part, the Court HELD: 1.1. The prosecution case is sought to be established by two C eye-witnesses, namely, PW-1 and PW-3, who are the brothers of the deceased, and the dying declaration-Exhibit P-2. According to the statements of PWs 1 and PW 2, they happened to be at the spot by chance at the time when the incident took place. There is a serious doubt as to whether PW-3 had witnessed the occurrence. Though he was one of the D ·· persons who took the deceased to the hospital, a doubt looms large whether he was on the spot when the occurrence took place. As regards the evidence , of PW-1, he does not come forward with a truthful story of what had actually happened. His version about the manner of attack by the four . accused persons and the non-explanation of injuries on accused A-1, A-2 1- and A-4 raises some doubts on the credibility of his entire version. At the E same time his version about the incident broadly accords with the contents of the dying declaration. His evidence cannot, therefore, be eschewed in totality. [407-E, G] 1.2. The dying declaration recorded by the Judicial Magistrate cannot be assailed on any germane ground. The evidence of the Magistrate, F PW 2 is unequivocal that the deceased was conscious and was able to answer the questions. The certificate of the doctor who was with him·was also obtained on the dying declaration. If some persons other than the accused attacked and burnt him there is no reason why the deceased should have thought of implicating the accused while leaving out the real G culprits. [407-H; 408-A-B) 1.3. As regards the injuries received by accused No; 1, the injuries were simp,le in nature and the non-explanation of those injuries by itself can
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