JUDGMENT
M. Jeyapaul, J.
1. The accused, who was convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default, to undergo six months rigorous imprisonment, moves the present appeal.
2. The charge as against the accused is that on 23.1.2002 at about 5.00 P.M., the accused, who is none other than the wife of the deceased Parthasarathy, poured kerosene over him when her husband was sleeping on account of previous quarrel between the husband and wife and set fire to him with an intention to cause his death and thereby she committed an offence punishable under Section 302 of the Indian Penal Code.
3. A brief text of the case of the prosecution is as follows:
Prakash, PW.1 is a neighbour, who reside near the house of the accused and the deceased. Mary, PW.6 is the sister of the deceased, who also reside in the very same location.
4. On 23.1.2002 at about 5.00 P.M., PW.1, Prakash and PW.6, Mary heard some noise in the house of the deceased. When PWs.1 and 6 came out of their house, they found that the deceased Parthasarathy running out of his house engulfed in flames. PWs.1 and 6 asked him as to the cause of the fire. Parthasarathy informed them that his wife poured kerosene over him when he was fast asleep and set fire to him. PW.1 and the accused took Parthasarathy to Royapettah Government Hospital, Chennai.
5. Doss, PW.5, a nephew of the deceased, enquired the deceased about the cause of occurrence. The deceased Parthasarathy informed him that he was not aware as to who in fact poured kerosene and set fire to him.
6. The Sub Inspector of Police Mr.Karunanidhi (PW.13) went to Royapettah Government Hospital at about 11.00 P.M. on 23.1.2002, having received admission intimation from the said hospital and recorded the statement of Parthasarathy and registered a case of fire accident in Crime No. 41 of 2002. At about 00.15 hours on 24.1.2002, he received intimation that Parthasarathy, who sustained burn injuries succumbed to his injuries. Thereafter, he converted the case into one under Section 174 of the Code of Criminal Procedure and took up the case for investigation.
7. During the course of investigation, he having examined Prakash, PW.1, converted the case into one under Section 302 of the Indian Penal Code and prepared the printed FIR Ex.P.4 and despatched the original to the learned Judicial Magistrate and the copies thereof to the higher officials concerned.
8. The Inspector of Police, Mr.John Clement, PW.14 took up the case for investigation. On 24.1.2002, having received copies of the FIR, he rushed to the scene of occurrence at Kotturpuram. He drew a rough sketch Ex.P.7 reflecting the scene of occurrence. He also prepared an observation mahazar Ex.P.8 in the presence of Natarajan, PW.4.
9. On 24.1.2002 at about 3.00 P.M., the accused was arrested and remanded to judicial custody by the next day. On 24.1.2002 itself at about 1.00 P.M., he recovered plastic cane MO-1, half burnt mat MO-2, half burnt pillo MO-3, half burnt clothe piece MO-4, a portion of burnt muscle MO-5, blood stained wall portion MO-6 and sample wall portion MO-7 under relevant seizure mahazar Ex.P.9 in the presence of Natarajan, PW.4, who turned hostile. Dr.Ravindran, PW.7, having received a requisition from the Inspector of Police, commenced post mortem examination on the dead body of Parthasarathy at about 10.50 A.M. on 25.1.2002. He found the following injuries and other features on the dead body of Parthasarathy:
Extensive mixed burns seen over the face, front of chest, front of abdomen, whole of both upper limbs back of head, back of neck, whole of back including the buttocks, whole of right lower limb including the planter aspect of foot, whole of left thigh, inner aspect of left leg, inner border of left foot and external genitalia. The burnt skin had peeled off in most of the areas exposing the underlying inflamed and hyperaemic sub cutaneous tissue. The scalphair was completely singed on the back and sides of Head and partly singed over the anterien aspect and vertex of head. No other Internal or body injuries were seen anywhere on the body.
Heart : Chambers contained clotted blood.
Lungs : Oedematous C/S Intensely congested excluded copious frothy fluid.
Larnyx and Trachea contained frothy fluid with soot particles.
Hyoid Bone : Intact. Stomach : Contained 150 grams of mostly digested cooked food particles. No specific smell perceived.
Mucasa : Congested
Liver, Spleen and Kidneys C/S congested.
Intestines, Distended with gas. Bladder – Empty – Brain – Hyperaemic and surface vessels full C/s showed numerous petechial.
He has opined in his post mortem certificate Ex.P.3 that the deceased appeared to have died of shock due to burns.
10. The Inspector of Police, Mr.Allalkattan, PW.15, who succeeded PW.14 took up the case for further investigation and having gone through the entire case diary laid final report as against the accused punishable under Section 302 of the Indian Penal Code on 19.3.2002.
11. The incriminating circumstances found in the testimony of the prosecution witnesses were putforth in the form of questionnaire to the accused. The accused, responding to the questionnaire, has stated that a false case has been foisted on her.
12. The trial Judge, having relied upon the testimony of PWs.1 and 6, has come to the conclusion that it was only the accused who committed the murder of her husband.
13. Learned counsel for the appellant/accused would submit that there is no legal evidence on record to establish the charge under Section 302 of the Indian Penal Code framed as against the wife of the deceased Parthasarathy. He would further submit that PWs.2, 4 and PWs.8 to 12 have turned hostile to the version of the prosecution. Doss, PW.5 has come out with the real version but his version has not been challenged by the prosecution. As he has categorically stated that the deceased was not in a position to disclose the perpetrator of the crime, his version will have to be taken into consideration by the Court. As the deceased himself has set the law in motion by saying that it was a case of accidental fire, the version of PWs.1 and 6 that the deceased disclosed to them that his wife set fire to him could not at all be believed.
14. The learned Additional Public Prosecutor would contend that the dying declaration emanated from the mouth of the deceased to Prakash, PW.1 and Mary, PW.6 will have to be taken into consideration while considering the role of the accused in the case of murder. He would further submit that the trial Court has rightly placed reliance upon the testimony of Prakash, PW.1 and Mary, PW.6 and returned a judgment of conviction.
15. In this case, it is found that the deceased who was fighting for life had set the law in motion. The statement of the deceased was recorded by the Sub Inspector of Police Karunanidhi, PW.13. The deceased has stated before the Sub Inspector of Police that when he was sleeping, all of a sudden, he was engulfed in fire. When he opened the door and came out, it was only his wife who took him to the hospital for admission and treatment.
16. It is not the case of the prosecution that the deceased Parthasarathy was not in a fit state of mind to give such a statement. Only based on such a statement, the Sub Inspector of Police, PW.13, has registered a case as one of accidental fire. The statement of the deceased Parthasarathy was recorded at 11.00 P.M. on 23.1.2002 just before his death.
17. PW.1, Prakash would state that he along with the wife of the deceased went to the hospital and admitted the deceased for treatment. Mary, PW.6 trailed behind them. Not only the accused but PW.1 was also present at the time when the deceased gave statement before the Sub Inspector of Police, PW.13. The available written version Ex.P.5 on record would disclose that it was only a case of accidental fire. In the face of such a version which emanated from the mouth of the deceased, the Court is unable to give credence to the testimony of Prakash, PW.1 and Mary, PW.6 that the deceased informed them that the accused poured kerosene when he was fast asleep and set fire to him. To cap it all, it is found that the Inspector of Police John Clement, PW.14 has categorically stated that Prakash, PW.1 and Mary, PW.6 have never stated during the course of investigation that the deceased gave a dying declaration implicating the accused herein. Therefore it is found that PWs.1 and 6 have come out with such a version for the first time before the Court. Such a version is not found to be trustworthy.
18. Coming to the testimony of Valli, PW.2, it is found that she has not stated anything incriminating the accused in this case. During the course of cross examination done by the State as she turned hostile, she has chosen to admit that the deceased gave a dying declaration to her also to the effect that it was only the accused who poured kerosene and set fire to him. It is very relevant to refer to her version during the course of cross examination done by the defence. She would completely fumble and state during the course of cross examination done by the defence that she was not aware of anything about the occurrence in question. Therefore Valli, PW.2 also has not supported the case of the prosecution.
19. Doss, PW.5, who is none other than the nephew of the deceased, has categorically deposed before the Court that the deceased informed him that he was not aware as to how the fire engulfed him. The deceased has given the very same version before the Sub Inspector of Police, Karunanidhi, PW.13. That was the reason why a case of accidental fire was registered originally.
20. Of course, the evidence of post mortem doctor, PW.7 in the background of the post mortem certificate Ex.P.3, shows that the deceased had died of shock due to burns. We doubt very much the version of Prakash, PW.1 and Mary, PW.6, who have completely departed from their version before the Investigating Officer. There is no other legal evidence to implicate the accused in the crime of murder of her husband.
21. On a perusal of the proceedings conducted by the learned trial Judge under Section 313 of the Code of Criminal Procedure, the accused has chosen to deny each and every aspect of implications made by the individual witnesses. When she was asked to state about the quantum of sentence, she reiterated that she had not committed any crime. But strangely during the course of answering further, she has stated that this being the first crime she might be excused by the Court.
22. The response of the accused to the proceedings conducted under Section 235(2) of the Code of Criminal Procedure, will have to be considered in the context of the response of the accused to the proceedings under Section 313 of the Code of Criminal Procedure. Having denied her role in the crime alleged against her, when the Court has come to a definite conclusion that it was only she who committed the crime asked she fumbled and stated that this being the first crime, she might be excused to facilitate her to take care of her children who have become orphans. Such an answer given by her, after the Court has come to a definite conclusion that she was the culprit, cannot be taken as the admission of the crime committed by her. At any rate, we find that there is lack of substantial evidence to implicate her in the charge of murder framed as against her.
23. The trial Court has relied upon the testimony of PWs.1 and 6 whose testimony does not inspire confidence of the Court for recording the conviction. We find that the accused is entitled to acquittal as there is virtually no evidence as against her.
24. In the result, the appeal is allowed and we set aside the judgment and conviction of sentence imposed on the accused in S.C. No. 32 of 2003 on the file of the learned III Additional District and Sessions Judge, Fast Track Court, Chennai. The accused is acquitted of the offence of murder punishable under Section 302 of the Indian Penal Code. The accused is set at liberty and she shall be released from prison, if her detention is not required in any other case. The fine amount, if any, paid by her shall be returned forthwith.