KHAJA MOHAIDEEN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) Challenge in the present appeal is to the order[dtd. 31/10/2018] passed by the High Court[Madurai Bench of Madras High Court.] in a revision petition[Crl. R.C.(MD) No. 463 of 2008.] filed by the complainant whereby the High Court had set aside the order[dtd. 11/3/2008] passed by the Trial Court[Additional Sessions Judge, Periyakulam.] by which the appellants/accused were acquitted of the charges. The High Court, vide impugned order, while setting aside the order passed by the Trial Court had remitted the matter back to the Trial Court for fresh consideration.

(2.) Learned counsel for the appellants submitted that in exercise of revisional jurisdiction, the High Court could have only examined glaring errors in the judgment of acquittal passed by the Trial Court. Re-appreciation of the evidence could not be done. The Trial Court, in the case in hand, after appreciating evidence led by both the parties had come to a conclusion that prosecution had not been able to make out any case against the appellants and acquittal was ordered. He further submitted that the High Court had wrongly observed that the dying declaration was not properly considered. He has referred to the dying declaration of the deceased placed on record and submitted that even if the dying declaration is considered in its totality, still it does not make out a case against the appellants. It can merely be said to be an unfortunate accident. Even appellant No. 1 suffered burn injuries in the same accident when the deceased had gone to the kitchen in the early hours of morning to heat up the milk for the children. As is evident from the dying declaration, while sleeping at night, since the gas regulator was not closed and it remained open, the gas spread all over the room and upon lighting the gas stove in the morning, the fire spread over, causing burn injuries.

(3.) On the other hand, learned counsel for the respondent No.2-complainant submitted that the Trial Court had totally misdirected itself in appreciating the evidence led by the prosecution. The facts which are not even mentioned in the dying declaration, are sought to be read. It does not suggest who had left the gas supply on at night. It could have been the husband who wanted to kill the deceased. There were instances of harassment of the wife immediately prior to the incident. If the facts are taken in their totality, it was a clear case made out by the prosecution for conviction. The complainant being aggrieved, preferred revision before the High Court. He further submitted that the complainant was informed by the deceased about the harassment and the present incident which he had stated in his examination-in-chief.