VIJAYAKUMAR Vs. STATE

JUDGEMENT

(1.) Accused Nos. 1 and 2 in the Sessions case No. 91 of 1998 (on the file of the Additional Sessions Judge, Kanyakumari) are the appellants in this appeal. They were prosecuted along with two others for the murder of one Rajeswaran by setting him on fire on the night of 21st July, 1994 at Palavilai village. The victim was admitted into the Government hospital, Nagercoil with 90% burn injuries and he died in the hospital on 24-7-1994. The appellants and two others were also charged for attempting to murder PW1 - the brother of the deceased by stabbing him. The learned Sessions Judge convicted A1 (1st appellant herein) for the offences punishable under Section 302 and Section 324 read with 34 IPC. A2 (2nd appellant) was found guilty of the offence punishable under Section 302. In addition, he was also convicted under Section 324 IPC for causing injury to PW-1. Both of them were therefore sentenced to life imprisonment. A3 and A4 were found guilty under Sections 302 read with Section 34 and Section 324 read with Section 34 IPC. On appeal filed by the accused persons, the High Court of Madras set aside the conviction of accused Nos. 3 and 4 under Section 302 read with Section 34 IPC. Their conviction under Section 324 read with Section 34 IPC was however maintained. Appellants 1 and 2 were convicted for the offence under Section 302 with the aid of Section 34 IPC and the sentence of life imprisonment was confirmed. Their conviction and sentence under Section 324 read with Section 34 was also confirmed. The first two accused have therefore come forward with this appeal.

(2.) The case of the prosecution, as per the charge-sheet and the evidence of prosecution witnesses, is as follows: The four accused are brothers. The deceased Rajeswaran and PWs. 1 and 3 are also brothers. The accused and the deceased are related to each other and they were residing in the same lane. A dispute arose between the father of the accused and the deceased and his family members in connection with an electricity line passing through the fathers house of the accused. A civil suit was filed which ended in favour of the family of the deceased. According to PW1, that happened three years earlier. On account of the said dispute, there were ill-feelings between the members of the two families. On 21-7-1994, at about 7.30 p.m. when Rajeswaran was going past the shop of the 2nd appellant Rajagopal to purchase some articles from a nearby shop, the 1st appellant Vijaya Kumar came out of the shop of the 2nd appellant and started abusing him and then took out a bottle and hit it on the head of the deceased, as a result of which, the bottle broke and the liquid spread over his body. A3 and A4 who were the acquitted accused, caught hold of Rajeswaran and did not allow him to move. At that moment, the 2nd appellant Rajagopal picked up a lighted kerosene lamp from his shop and threw it on Rajeswaran. Resultantly, Rajeswarans body caught fire and he rolled on to the ground. PW1 - the brother of the deceased, who was in a shop, tried to go close to his brother; however, the accused 1, 3 and 4 caught hold of him and the 2nd accused (appellant No.2) stabbed him on the chest and shoulder with a button knife. PW3, the younger brother of PW1, who was at a nearby shop and some others noticed the incident and rushed to the scene and raised alarm. After the accused ran away, PW3 and PW4 took the victims in an auto-rickshaw to Kuzhithurai Government hospital. After first aid, they were taken to Kottar Government hospital. By that time, it was 10.30 p.m. The Head Constable (PW12) attached to Kaliyakkavilai police station came to the hospital at 11.30 a.m. and made enquiries with the victim Rajeswaran about the incident. The statement which he recorded, namely Ext. P3, was treated as first information report. PW12 also examined A2 at the hospital. PW8 - Dr. Vimala, the Medical Officer of Kuzhithurai Government hospital, who examined the deceased and PW1 found 90% burn injuries on the body of the deceased. She found a stab injury 2"x1" on the right side of the chest and two other stab injuries on the back of PW1. She issued a wound certificate in which she expressed the opinion that the injuries were simple. The deceased as well as PW1 were referred to the Government hospital, Nagercoil. It appears that PW7, who was a Fire Officer, having received a telephone message, went to the provision shop of the accused No.2 and noticed fire at some portion of the shop. After putting off the fire, he found A2 with injuries lying inside the shop and took him to Kuzhithurai Government hospital. PW8 examined him and found that there was a deep lacerated injury 6" long 2" wide on the lateral aspect of the left leg and another lacerated injury on the left thumb and two abrasions. She opined that the injuries were simple in nature. Then, A2 was referred to the Government hospital, Nagercoil. PW8 found two abrasions on the anterior and posterior aspect of right shoulder of accused No.4 as well. PW8 also examined accused No.1 at about 9.10 p.m., found a diffuse swelling behind left ear and a lacerated injury of 1"x5x5 cm between the left thumb and index finger and treated him as out patient.

(3.) At about midnight time, the Judicial Magistrate, Nagercoil (examined as PW2) having received requisition from the Government Headquarters Hospital, proceeded to the hospital and recorded the statement of the deceased Rajeswaran at 12.30 a.m. which is in the nature of dying declaration. This was done in the presence of the Doctor. It is marked as Ext. P2 and it reads as follows: