SREE VIJAYAKUMAR AND ANR. ,versusSTATE, BY INSPECTOR OF POLICE, KANYAKUMARI

A                   SREE VIJA YAKUMAR 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. STATE, 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
           cannot throw reasonable doubt on the prosecution case. It is worthy of
 "'...     note that the counter complaint given by the accused is itself a tacit         H
      400                     SUPREME COURT REPORTS [2005) SUPP. l S.C.R.

_: A admission that the incident did take place. The deceased got burnt in the
      course of that incident. There is nothing to indicate that the accused
      apprehended danger and, therefore, acted in self defence. (408-C, F)

         2. In view of the version in the dying declaration coupled with the
   evidence of PW 1 to the extent it is in conformity with the dying
 B declaration, accused No.I hit the deceased on his head with a bottle.
   Assuming that some liquid spread over the body, there is no satisfactory
   evidence to establish that it was petrol or kerosene or such other highly
   inflammable liquid. In the dying declaration th'ere is no reference to the
   fact that any inflammable Ii.quid spilled over from the bottle. Even if some
 C liquid came out of the bottle as per the version of PWl, it cannot be taken
   for granted that it was inflammable liquid. The High Court readily
   assumed, without analyzing the evidence on record that the bottle with
   which the deceased was hit contained petrol. The U:igh Court did not
   properly address itself to the question of common intention and the nature
   of offence. Thus, appellant No. 1 can only be convicted under Section 323
 D for causing hurt to the deceased by hitting him with a bottle. He is
   sentenced to undergo imprisonment for six months. [408-H; 409-A, B, CJ

            3.1. Coming to the act of accused No. 2 in throwing a burning
      -kerosene lamp soon after the attack of Al with bottle, it appears to be a
 E     random act resorted to by a<)Cused. No. 2 at the spur of moment, apparently
       to cause harm to the deceased. It was not a pre-planned act done with
      definite intention of causing death. He can only be imputed with the
       knowledge that by such a dangerous act, he was likely to cause death. The
       overt act of accused No.2 in throwing the· burning kerosene lamp at the
       deceased would give rise to the offence of culpable homicide not amounting
 F     to murder punishable under Part II of Section 304. He is convicted
       accordingly and is sentenced to undergo imprisonmen! for seven years and
       to pay a fine of Rs. 500. [409-C, D-H]

        3.2. The evidence as regards t"'e attack on PW 1 by appellant No.2
   with a knife which caused incised wounds to PW 1 is quite cogent and
 G convincing. His conviction under Section 324 and the sentence of 1 year
   imposed by trial court is confirmed. [4~0-B)

            4. The appellants would not have shared the common intention
      though the common intention could spring up at the spot. One accused
      hitting the deceased with a bottle on his head which did not cause even a
  H
 SREE VIJA YAKUMAR v. STATE, BY INSPECTOR OF POLICE [REDDI, J.] 40 l

visible injury and the other accused throwing a burning kerosene lamp              A
from a distance cannot be said to be acts done in furtherance of common
intention to cause the death of the victim. These are random acts done
without meeting of minds. They can only be held guilty for the individual
overt acts. [409-F-G]

     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 627                     B
of 2004.
                  • •t,
     From the Judgment and Order dated l.4.2003 of the_ Madras High
Court in Crl.A.No. 1004 of 1999.

     A.T.M. Rangaramanujam, G.Gireesh Kun:iar and Kh. Nobin Singh with             C
him for the Appellants.

     Abhay Kumar, Jay Kishore Singh and Subramonium Prasad for the
Respondent.

      The Judgment of the Court was delivered by                                   D

      P. VENKAT ARAMA REDDI, J. Accused Nos. I & 2 in the Sessions
case No. 91 of 1998 (on the file of the Additional Sessions Judge,
Kanyakurnari) 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    E
the Government hospital, Nagercoil with 90% bum injuries and he died in
the hospital on 24.7.1994. The appellants and two others were also charged
for attempting to murder PW-lthe brother of the deceased by stabbing him.
The learned Sessions Judge convicted Al (I st appellant herein) for the offences
punishable under Section 302 and Section 324 read with 34 IPC. A2 (2nd             F
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- I. 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 & 4 under          G
Section 302 read with Section 34 IPC. Their conviction under Section 324
read with Section 34 IPC was however maintained. Appellants I & 2 were
convicted for the offence under Section 302 with the aid of Section 34 IPC
and the sentence of life imprisonment was confinned. Their conviction and
sentence under Section 324 read with Section 34 was also confinned. The            H
    402                    SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A first two accused have therefore come forward with this appeal.
          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 I &
B   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 father's house of the accused. A civil
    suit was filed which ended in favour of the family ofthe deceased. According
    to PWI, that happened three years earlier. On account of the sai~ dispute,
C   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 ofthe 2nd appellant and started
    abusing him and then took out a bottle and hit it on the head of the deceased,
D   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, Rajeswaran's body caught fire and he rolled on to the ground.
    PWlthe brother of the deceas~d, who was in a shop, tried to go close to his
E   brother; however, t~e accused I, 3 & 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 broti)er of PWl, 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-
F   rickshaw to Kuzhithurai Government hospital. After first aid, they were taken ·
    to Kottar Government hospital. By that time, it was I 0.30 p.m. The Head
    Constable (PW 12) 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. PW-8
G   Dr. Vimala, the Medical Officer of Kuzhithurai Government hospital, who
    examined the deceased and PWl found 90% burn injuries on the body of the
    deceased. She found a stab injury 2"xl" on the right side of the chest and two
    other stab injuries on the back of PWI. She issued a wound certificate in
    which she expressed the opinion that the injuries were simple. The deceased
H   as well as PWI were referred to the Government hospital, Nagercoil. It
 SREE VIJA YAKUMAR v. STATE, BY INSPECTOR OF POLICE [RED DI, J.] 403

appears. that PW7, who was a Fire Officer, having received a telephone            A
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 A? with injuries
lying inside the shop and took him to Kuzhithurai Government hospital. PWS
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         B
nature. Then, A2 was referred to the Government hospital, Nagercoil. PWS
found two abrasions on the anterior and posterior aspect of right shoulder of
accused No.4 as well. PWS also examined accused No.I at about 9.10 p.m.,
found a diffuse swelling behind left ear and a lacerated injury of l "x5x5 cm
between the left thumb and index finger· and treated him as out patient.          C
      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       D
as f6Jlows:

        "Today the 21.7.1994 at night 7'0 clock when I was on the way to
      · shop for buying petals and Aricanuts, suddenly Sree Vijayakumar hit
        the bottle on my head, his younger brother Rajagopal threw the fire
        on me. Fire caught on my body. In connection with laying electric         E
        connection through the space near their house, enmity arose among
        us and a case was filed. That case was decided in my favour and
        hence they did it. At the time of the incident Gunasekharan and
        Jayapal extended help. When I ran away and fell down on the ground
        and rolled, my brother Ambeeswaran tried to help me and as such he        F   -
        also received burn injuries. My another brother was attacked by
        Rajagopal with a button knife."

      In Ext.P2, there is an endorsement by the Doctor that the patient was .....
conscious and answering the questions. The Magistrate obtained. the thumb
impression of Rajeswaran. PW2 deposed that Rajeswaran was conscious and G
he answered the preliminary questions put by him and then only he recorded
his statement.

     Rajeswaran died in the morning hours of 24th July, 1994. The Inspector
of Police PW14 conducted the inquest of the deceased in the presence of
panchayatdars and sent the dead body for postmortem. Postmortem was               H
                                         /




      404                      SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

 A    conducted by PW9 the Civil Surgeon working· at ·Kottar Government
      Headquarters Hospital in the evening of 24th July. He took out the skin from
      the body and preserved it in Sodium Chloride solution for chemical analysis.
      Ext.Pl2 is the postmortem report and Ext.Pl3 dated 25.12.1995 is the opinion
      given by him after the receipt of skin test from the Chemical Examiner
      according to which Rajeswaran died on account of shock resulting from deep
 B    burn injuries. The chemical examiner's report is Ext.P27. Petrol was detected
      on the pieces of black lumps received from_the Judicial Magistrate, Kuzhithurai
      with-his letter dated l 0.10.1994.
                                                               I
             There was a counter-complaint ~iven by the accused Rajagopal lodged
 C    at Kaliyakkavilai police station. In that complaint, the deceased, PWs I & 3
      and another, were shown as the accused. The. substance of the complaint was
      that the accused came to his shop and insisted on giving some· articles on
      credit and on refusal, the deceased and PW3 abused him leading to a quarrel
      and fight, in the course of which PWl inflicted injuries on him and when his
      brothers· arrived at the scene, one of the accused attacked them and caused
 D    injuries. Crime was registered as No. 378 of 1994.

             Surprisingly, the counter complaint was inquired into by PW16-Inspector
      of Police after considerable delay, i.e., in the year 1996. He submitted the
      final report (Ex.P28) to the Judicial Magistrate on 16.02.1998. He found no
      truth in the allegations made in the complaint lodged by the second accused
,E    and he came to the conclusbn that it was filed as a counter-blast to the report
      of the deceased. It is also surprising that the investigation even in regard to
      Cr. No.377/94 giving rise to the present case went on for three· years and 4
      or 5. Investigating Officers changed, though the identity of accused was
      known and all of them were arrested soon after the inCident.
 F
             In reply to the questions put under Section 313 Cr.P.C., the appellants
      totally denied the incident and their involvement.

             Learned Senior counsel for the appellants contended that the genesis of
      the inciden~ has been suppressed by the prosecution, that no action was taken
 G;   to promptly inquire into the counter complaint given by.the accused; that the
      appellants and another.accused had received serious injuries which remained
      unexplained by the prosecution witnesses, that the evidence of the brothers
      of deceased who were chance witnesses has been deliberately introduc\!d to
      build up the prosecution case and that it is highly improbable that the inddent
      had taken place in the manner in which it was put forward by the prosecution.
 H    It is further contended that the First Information Report based on the alleged
     SREE VIJAYAKUMAR v. STATE, BY INSPECTOR OF POLICE [REDDI, J.] 405

    statement made by the deceased to Head Constab.le (PW12) is not acceptable . A
    as PW12 admitted that FIR was prepared after consultation with the superior
    officers and that the contents of the statement were not made known to the
    witnesses who signed it. Referring to the dying declaration before the
    Magistrate (PW2) it is submitted that it was highly doubtful whether the
    patient who would have been administered drugs to abate the pain would be B
    in a position to make .the statement at midnight and that in any case no
    reliance can be placed on it in the absence of examination of the do~tor .
    testifying to the consciousness of the patient. It is finally submitted that the
    appellants cannot be found guilty of the offence under Section 302 and that
    there is no scope to invoke Section 34 IPC.

           The learned counsel appearing for the State while refuting these
                                                                                        c
    contentions submits-that there is trust-worthy evidence of eye-witnesses apart
    from the dying declaration recorded by the Magistrate and that there are no
    grounds to interfere with the concurrent findings of fact. He submits that
    petrol was detected on the skin of the deceased and this fact goes to corroborate
    the prosecution version. As regards the injuries, it is pointed out that the        D ··
    accused bad motive to cause harm to the deceased by reason of previous
1   enimity. It is then submitted that the i1_1juries sustained by the accused were
I
    simple in nature but in order to create evidence, the two accused remained
    in hospital for a long time which fact was adversely commented upon by the
    trial court. Under the circumstances, it is contended thaf the non-explanation      E
    of the simple injuries on the accused does not affect the prosecution case. It
     is also submitted that the appellants did not even put forward a case in
    conformity with the complaint lodged by them on the date of incident.

           The two eyewitnesses are brothers of the deceased. According to them,
    they happened to be at the spot by chance at the time when the incident took p
    place. As per PWI 's version, he was returning after making purchase of
    some provisions from the shop of Thomas whereas his deceased brother was
    going towards the shop of _Thomas. He stated in the chief examination that ·
    when his brother had reached the spot in front of the 2nd accused Rajagopal,
    the 1st accused Vijaya Kumar attacked his brother by hitting a bottle on his
    h~ad and the liquid therefrom spread over the body. A3 and A4 (who were G
    acquitted) restraine~. 4kbrother from moving. At that juncture, the 2nd accused
    Rajagopal threw a burning kerosene lamp from the shop which ignited the
    fire. Thereafter, his younger brother PW3 rushed to the scene from another
    nearby shop and tried to put off the fire. When he and his younger brother.
    tried to rescue their brother under flames, the 2nd accused stabbed him (PWI) H
    406                      SUPREME COURT REPORTS [200S]SUPP. 1 S.C.R.

A on his chest and shoulders with a knife. Thereafter, PW3 and PW4 (PW4
    declared hostile by the prosecution) took him and his deceased brother to the
    hospital in an auto-rickshaw. This is the version of PWI in the chief
    examination. In the cross examination, a somewhat different version was
    given as regards the manner of attack. He stated that the accused (four in
B   number) followed his elder brother from east to west and waylaid him. PWI
    apparently tried to paint a picture of planned attack by the four accused
    persons. But, no reasonable inference of premeditated attack can be d.rawn ·
    having regard to the· facts and circumstances apparent from the evidence on
    record. First of all, the involvement of A3 and A4 in the attack against the
    deceased was ruled out by the trial Court and High Court. In the dying
C   declaration, it was not stated that any of the accused caught hold of the
    deceased. "Secondly, the pre-concerted attack, if it were true, would.not have
    happened in the manner in which PWI narrated. Breaking open the bottle
    containing some liquid substance by hitting it on the head which did not even
    result in any visible injury and A2 then picking up a lighted kerosene lamp
    and 'throwing' it at him, do not support the theory of planned attack with an
D   intention to kill him. Such a course of conduct is not consistent with the
    inference that the two appellants were waiting to kill him. The fact that the
    accused also suffered injurieswhiCh are not negligible shows that there would
    have been some scuffle and exchange of blows, but the details thereof are not
    forthcoming.
E          Moreover, there are some circumstances casting a doubt on the
    prosecution version of A I pouring petrol on. the deceased by breaking the
                                                                                           I
    bottle in an unusual manner by hitting it on the head of the deceased. The             '
    broken pieces of glass bottle are supposed to have been recovered by the
    Sub-Inspector.of Police PW13 at the spot but he did not depose as tQ how
F   he identified tt as the bottle used in the course of attack. It is not his case that
    any witness had pointed out the same. Above all, the prosecution version that
    the liquid which came out of the bottle was petrol, cannot be re}ied upon for
    more than one reason. The smell of a common inflammable substance like
    petrol or kerosene would have been easily sensed by the witnesses. Even the
    Doctor PW9 could not find the smell of kerosene or petrol or any other
G   inflammable liquid on the body of the deceased. In the dying declaration
    before the Magistrate, the deceased merely stated that the I st accused hit him
    on the head with a bottle. No doubt, the Chemical Examiner's report Ext.P28
    reveals that he 'detected' petrol on the pieces of black lumps sent to him in
    a paper parcel by the Judicial Magistrate, Kuzhithurai. As seen from Ext.P26,
H   the Inspector of Police sent a requisition to the Judicial Magistrate for sending
  SREE VIJA YAKUMAR v. STATE, BY INSPECTOR OF POLICE [REDD!, J.] 407

  the case properties mentioned therein for examination by the Chemical                 A
  Examiner on l 0.10.1994 which was nearly three months after the postmortem.
  Curiously, there is no evidence to the effect that the items sent to the Magistrate
  for onward transmission to the Chemical Examiner were the same that were
  handed over to him by PW9 and that they were sealed by the hospital
  authorities. Though PW9 stated that the skin taken from the leg was preserved
  in Sodium Chloride solution for chemical analysis, he did not state that any          B
  seal was affixed thereon and handed over to the Inspector. The I.O.PW14
  who sent the requisition to the Magistrate or any other Police Officer did not
  state that he received the preserved sample of skin from the hospital with the
  seal of the hospital. Even if the sample was collected from the hospital, the
  possibility of med~ling with it in the absence of seals cannot be ruled out           C
  especially when there was a time lag of nearly three months in sending the
  article to the Magistrate. No doubt, a suggestion on these Jines was not put
._to the 1.0.,but the question of giving suggestion would arise only if the LO.
  had deposed to the factum of collecting the sample from the hospital and
  sending it to the Magistrate in the same form. It is, therefore, not safe to rely
  on the Chemical Examiner's report to reach a conclusion that petrol was               D
  splashed on the deceased by .A- I before the burning lamp was thrown at him
  by A-2.                    -

       The prosecution case is sought to be established by two eye-witnesses,
 namely, PW-1 and 3 who are the brothers of the deceased and the dying
 declaration-Exhibit P-2. There is a serious doubt as to whether PW-3 had               E
 witnessed the occurrence. In the Chief examination PW3 stated that at the
 time of occurrence, he was working in the shop of Radha Krishnan which is
 close to the place of incident but in cross-examination, he stated that he was
 running a fire-wood shop on his own. Though he was one of the persons who
 took the deceased to the hospital, a doubt looms large whether he was on the           F
 spot when the occurrence took place. However, there remains the evidence
 of PW- I. But, we cannot place wholesale reliance on his evidence, as 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 the accused 1,2 and 4 raises some doubts on the
 credibility of his entire version. At the same time his version about the              G
 incident broadly accords with the contents of the dying declaration. His
 evidence cannot therefore, be eschewed in totality.

       The ~ying declaration recorded by the Judicial Magistrate cannot be
 assailed on any germane ground. We cannot accept the contention of the                 H
    408                     SUPREME COURT REPORTS (2005) SUPP. I S.C.R.

A   learned counsel for the appellants that the deceased would not have been in
    a position to sustain his consciousness and give a statement narrating the
    details of the incident. The evidence of the Magistrate, PW 2 is unequivocal
    that the deceased was conscious and was able to answer the questions. The
    certificate of the doctor (Dr. Lalita Kumari) who was with him was also
B   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 culprits.

           The learned counsel for the appellants then contended that the non-
    explanation of the injuries which the accused No. I received in the course of
C   the same incident makes a dent on the prosecution case as the genesis of the
    incident was suppressed •. It is pointed out that one of the injuries caused to
    accused No. I was a deep lacerated injury of 6" long x 2" wide on the left leg
    and the accused remained in the hospital for 21 days, as seen from the
    evidence of PW8. It is further pointed out that the Fire Officer PW7 found
    A I in an injured condition lying on the ground inside the shop. The contention
D   of the learned counsel though plausible cannot be sustained. The fact remains
    that the injury was simple in nature and no fracture was found on x-ray. The
    trial Court rightly commented that A 1·would not have remained in the hospital
    for such a long time for genuine reasons. The treatment of a simple injury
    does not; by any standards .require 21 days of hospitalization. Evidently, he
E   wanted to find out an escape route to wriggle out of the complaint against the
    accused. Coming to the evidence of PW 7, it is unbelievable that he would
    remain inside the shop which according to PW 7 partially caught fire. It is
    thus clear that ·the injuries received by accused No. I were simple in nature
    and the non-explanation of those injuries by itself cannot throw reasonable
    doubt on the prosecution case. It is worthy of note that the counter complaint
F   given by the accused is itself a tacit admission that the incident did take
    place. The deceased got burnt in the course of that incident. There is nothing
    to indicate that the accused apprehended danger an~, therefore, acted in self
    defence.

          The contention that the FIR was fabricated in view of what has been
G stated by PW I2, has no merit. The FIR only incorporates the statement
    recorded by PW 12 at the hospital. The fact that he consulted the superior
    officials before formally recording the FIR does not mean that any changes
    or interpolations were introduced.

          The next question is what ai:e the conclusions to be drawn as regards
H
      SREE VJJA YAKUMAR v. STATE, BY INSPECTOR OF POLICE [REDDL J.)409

    the offences committed by the two appellants, going by the version in the A
    dying declaration coupled with the evidence of PW I to the extent it is in
    conformity with the dying declaration. The accused No. I hit the deceased on
    his head with a bottle. Assuming that some liquid spread over the body, there
    is no satisfactory evidence to establish that it was petrol or kerosene or such
    other highly inflammable liquid. This aspect we have already adverted to. If B
    the idea of A I was to pour some inflammable liquid oh ·the body of the
    deceased, in all probability, he would not have resorted to the odd way of
    hitting the bottle containing offensive liquid on his head. In the dying
    declaration ·there is no reference to the fact that any inflammable liquid
    spilled over from the bottle. Even if some liquid came out of the bottle as per
    the version of PWI, it cannot be taken for granted that it was inflammable C
    liquid. Coming to the act of the 2nd accused in throwing a burning kerosene
    lamp soon after the attack of A I with bottle, we are inclined to think that it
    was a random act resorted to by the 2nd accused at the spur of the moment,
    apparently to cause harm to the deceased. It was not a pre-planned act done
    with the definite intention of causing death .. It is not the case of the prosecution D
    that A2 went close to the deceased and lit up his clothes wjth the kerosene
    lamp. Hurling a small burning lamp towards a person may not definitely
    cause fire to the clothes. No doubt it was a dangerous act and it was likely
    to cause fire. But in view of the fact that the candle like lamp comes into
    contact with the clothes of the targeted person for a split second, it may or
    may not be in a position to ignite the fire. A person throwing the kerosene E
    lamp in that fashion cannot at any rate be imputed with the intention to cause
    the death or causing such bodily injury as is likely to cause death. He can
    only be imputed with the knowledge that by such a dangerous act, he was
    likely to cause death. The overt act of accused No.2 in throwing the burning
    kerosene lamp at the deceased would, in our view, give rise to the offence F
    of culpable homicide not amounting to murder punishable under Part II of
    Section 304. The discussion supra also leads to the inference that the appellants
    would not have shared the common intention though the common intention
    could spring up at the spot. One accused hitting the deceased with a bottle
    on his head which did not cause even a visible injury and the_ other accused
    throwing a burning kerosene lamp from a distance cannot be said to be acts G
    done in furtherance of common intention to cause the death of Rajeswaran.
    These are random acts done without meeting of minds. They can only be
    held guilty for the individual overt acts. A2 is, therefore, liable to be convicted
    under Section 304 (Part II). Accordingly, he is convicted and sentenced to.



-   undergo imprisonment for seven years and to pay a fine of Rs. 500 In default H
    of payment of fine, he shall undergo imprisonment for a further period of
    410                     SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A   three months. His conviction and sentence under Section 302 IPC is set aside.

          Appellant No.I (A-1) can only be convicted under Section 323 for
    causing hurt to the deceased by hitting him with a bottle. He is sentenced to
    undergo imprisonment for six months.                         ""

B         The evidence in regard to the attack on PW l by appellant No.2 with
    a knife which caused i.!Jcised wounds to PW I is quite cogent and convincing.
    The conviction under Section 324 and the. sentence of I year imposed by trial
    court, as far as A 2 ·.is concerned, is confirmed. Both the sentences shall run
    concurrently. A-1 -is acquitted of the charge under Section 302. We are
C   informed that appellant No.I .has so far undergone imprisonment of more
    than l year. Hence, we direct that A-1 Vijaya Kumar shall be set at liberty
    forthwith.

          Before closing, we may add that the High Court readily assumed, without
    analyzing the evidence on record that the bottl~ with which the deceased was
D   hit contained petrol. The High Court did not properly address itself to the
    question of common intention and the nature of offence.
                                                              '
           The appeal is accordingly allowed.

    R.P.                                                   Appeal partly allowed.
E