Kasi Viswanathan and Another Vs. State rep. by, The Inspector of Police, Madurai - Court Judgment

SooperKanoon Citationsooperkanoon.com/1178857
CourtChennai Madurai High Court
Decided OnOct-13-2015
Case NumberCriminal Appeal (MD).No. 147 of 2012
JudgeS. Nagamuthu &Amp; V.S. Ravi
AppellantKasi Viswanathan and Another
RespondentState rep. by, The Inspector of Police, Madurai
Excerpt:
(prayer: appeal is filed under section 374(2) of the code of criminal procedure against the judgment passed by the learned vi additional district judge, madurai in s.c.no.294 of 2010 dated 06.07.2012.) s. nagamuthu, j. 1. the appellants are the accused 1 and 2 in s.c.no.294 of 2010 on the file of the learned vi additional district judge, madurai. one jeyaveeran was the 3rd accused in the case. the trial court framed a lone charge against the accused 1 and 2 under section 302 ipc and framed a charge under section 302 read with 109 ipc against the 3rd accused. by judgment dated 06.07.2012, the trial court acquitted the 3rd accused, but convicted the accused 1 and 2 under section 302 ipc and sentenced them to undergo imprisonment for life and to pay rs.5,000/- each, in default, to undergo rigorous imprisonment for six months. challenging the same, the appellants have come up with this appeal. 2. today, when the appeal was taken up, the learned counsel for the appellants submitted that the 1st appellant/1st accused mr.kasiviswanathan died on 23.08.2013 itself. no one has come on record to prosecute the appeal further in his place. therefore, this appeal stands abated as against the 1st appellant. thus, now, we are concerned only with the appeal filed by the 2nd accused mrs.angammal. 3. the case of the prosecution in brief is as follows: the deceased in this case was one mr.thangaraj. the 1st accused is his son and the 2nd accused is his wife. the 3rd accused is a relative of the deceased and the accused 1 and 2. the accused 1 to 3 were residing in melakuyilkudi village. the deceased was a drunkard. he used to come to the house of the accused, developed quarrel frequently demanding return of certain documents relating to the property, which were earlier executed by the deceased in favour of the accused 1 and 2. this is stated to be the motive for the occurrence. 3.1. it is alleged that on 22.04.2002, at 4.30 a.m., the accused was sleeping on the terrace of the motor room in his field. at about 4.30 a.m., it is alleged that on the instigation of the 3rd accused, the accused 1 and 2 came to the motor room, poured petrol on the deceased and set fire. the deceased sustained extensive burn injuries measuring 100%. it is further alleged that the 1st accused attacked the deceased with an iron rod on his head. p.w.1 is the nephew of the deceased. according to him, on the night intervening 21.04.2002 and 22.04.2002, when he was sleeping at his house, he heard the alarm raised by somebody. when he was awakened by the said alarm, he found fire in the motor room of the deceased. he immediately rushed to the said place. the 1st accused also rushed along with him to the place of occurrence. they found the deceased with burn injuries. they took him immediately to the government rajaji hospital at madurai. he was admitted as inpatient at 5.45 a.m. on 22.04.2002. 3.2. the doctor gave intimation to the police as well as to the learned magistrate regarding the admission of the deceased with burn injuries. on receiving intimation, p.w.10 the then judicial magistrate no.v, madurai, went to the hospital. the doctor attending on the deceased gave opinion that the deceased was conscious and in a fit state of mind to make declaration. p.w.10 asked few questions to satisfy his conscience about the mental fitness of the deceased. after having satisfied with the same, he recorded the dying declaration of the deceased at 7.00 a.m. ex.p10 is the said judicial dying declaration made by the deceased. 3.3. similarly on receiving intimation, p.w.6 the sub inspector of police, nagamalai pudukottai police station went to the hospital and recorded the statement of the deceased at 9.00 a.m. on 22.04.2002. on returning to the police station, he registered a case in crime no.72 of 2002 under section 307 ipc at 11.00 a.m. ex.p5 is the complaint and ex.p6 is the fir. he forwarded both the documents to the court and handed over the case diary to the inspector of police for investigation. 3.4. p.w.11 took up the case for investigation on 22.04.2002 at 11.00 a.m. itself. he proceeded to the place of occurrence at 12 noon and prepared an observation mahazar and a rough sketch in the presence of p.w.5 and another witness. he recovered a burnt cloth piece and other materials from the place of occurrence under a mahazar. then, he went to the hospital and examined the deceased at 2.00 p.m. but p.w.11 did not record the statement of the deceased. 3.5. during the course of investigation, on 23.04.2002, at 9.30 a.m., melakuyilkudi village, he arrested the accused 1 and 2 in the presence of p.w.4 and another witness. on such arrest, the 2nd accused gave a voluntary confession between 9.30 a.m. and 10.15 a.m., followed by the confession of the 1st accused between 10.30 a.m. and 11.00 a.m., p.w.11 recorded the same in the presence of witnesses. in the confession, the 1st accused had disclosed the place, where he had hidden an iron rod. in pursuance of the same, he took the police and the witnesses to the samanar malai and produced m.o.4 - iron rod. then the 2nd accused took the police and the witnesses to her house and produced a plastic can (m.o.5) and an ever silver vessel (m.o.6). p.w.11 recovered the same under a mahazar. on returning to the police station, he forwarded both the accused to the court for judicial remand and handed over the material objects also. 3.6. while so, at 11.30 a.m., on 24.04.2002, the deceased died in the hospital. p.w.11, therefore, altered the case into one under section 302 ipc and forwarded the alteration report under ex.p18 to the court. between 3 p.m. to 5.30 p.m., he conducted inquest on the body of the deceased in the hospital. then, he forwarded the body for postmortem. 3.7.p.w.7 conducted autopsy on the body of the deceased on 25.04.2002 at 10.00 a.m. he found extensive burn injuries measuring 100%. he also found a lacerated injury measuring 5 x 1 cm x bone depth on the right side of the forehead. ex.p8 is the postmortem certificate. he gave opinion that the deceased would appear to have died of extensive superficial burns of about 100% associated with head injury. 3.8. p.w.11, during the course of investigation, made a request to the court to forward the material objects for chemical examination. finally, he handed over the case diary to the successor for further investigation. p.w.12 took up the case for investigation on 27.07.2002 and finally, he laid charge sheet against the accused under section 302 read with 109 ipc. 3.9. based on the above materials, the trial court framed charges as detailed in the 1st paragraph of this judgment. the accused denied the same. in order to prove the case, on the side of the prosecution, as many as 22 witnesses were examined, 23 documents and 6 material objects were marked. 4. out of the said witnesses, p.w.1 (the nephew of the deceased) has stated that he heard the alarm raised by the deceased and when he rushed to the motor pump set, he found the deceased in flames and he has further stated that the 1st accused also rushed along with him to the motor shed to extinguish the fire. p.w.2 is yet another nephew of the deceased. p.w.3, who is the daughter of the deceased, has also stated so. p.w.4 has spoken about the arrest of the accused 1 and 2. p.w.4 was examined to speak about the arrest of the accused 1 and 2 and their confession statements. but he turned hostile and he has not supported the case of the prosecution. p.w.5 has spoken about the preparation of the observation mahazar and rough sketch and the recovery of material objects. p.w.6 is the sub inspector of police, who recorded ex.p5 statement of the deceased and registered the case. p.w.7 is the doctor, who conducted autopsy on the body of the deceased. he has spoken about the final opinion regarding cause of death. 4.1. p.w.8 is the constable, who carried the dead body to the hospital for postmortem. p.w.9 has stated that he handed over the material objects to the court as directed by the inspector of police. p.w.10 is the learned judicial magistrate, who recorded the dying declaration ex.p10. she has stated about the same. she has further stated that she obtained the certificate from the doctor attending on the deceased that he was conscious and fit to make statement. p.ws.11 and 12 have spoken about the investigation done by them and the final report filed. p.w.13 is the head clerk of the court, who has spoken about the fact that he has forwarded material objects to forensic lab for chemical examination as ordered by the learned magistrate. p.w.14 is the chemical analyst, who has stated that there were bloodstains on the material objects. p.w.15 is a distant relative of the deceased, who has also stated that on hearing the alarm raised by the deceased, he went to the place of occurrence and found the deceased in flames. p.w.16 has spoken about the observation mahazar and rough sketch prepared. p.w.17 has turned hostile and he has not supported the case of the prosecution in any manner. p.w.18 is the brother of the deceased. he has stated that at 4.00 p.m., on the date of occurrence, when the deceased was in the hospital, the deceased told him that his wife set fire to him. p.ws.19, 20 and 21 turned hostile and they have not supported the case of the prosecution in any manner. p.w.22 is yet another nephew of the deceased, who has also stated that he took the deceased to the hospital and admitted. 5. when the above incriminating materials were put to the accused under section 313 cr.p.c., he denied the same as false. however, he did not choose to examine any witnesses on their side nor to mark any documents. their defence was a total denial. having considered all the above, the trial court convicted these accused and that is how, they are before this court with this appeal. 6. we have heard the learned counsel for the appellants, the learned additional public prosecutor for the respondent state and we have also perused the records carefully. 7. this is a case based on circumstantial evidence. the prosecution relies on the dying declaration given by the deceased. the earliest dying declaration (ex.p10) was given to the judicial magistrate, wherein, the deceased had stated that the occurrence had taken place at his house, whereas according to the prosecution case, the occurrence had taken place on the first floor of the motor pump set room, which is situated far away from the house of the deceased. so far as this dying declaration is concerned, the doctor had opined that the deceased was conscious and he was fit enough to give dying declaration. but, unfortunately, the said doctor, who gave such certificate, has not been examined before the trial court so as to afford an opportunity to the accused to test the veracity. the opinion of the doctor is not admissible at all in evidence in the absence of the examination of the doctor. thus, as of now, there is no medical evidence that the deceased was in a fit state of mind to make a dying declaration. 8. that apart, a perusal of ex.p10 would go to show that the learned magistrate did not record his satisfaction that the deceased was in a fit state of mind to make dying declaration. more than any other dying declaration, a dying declaration recorded by a learned magistrate carries sanctity, because there is a guarantee that what was said by the declarant had been truly recorded by the learned magistrate. that sanctity cannot be assailed easily, unless there are very strong circumstances brought on record. but, whether the assessment of the magistrate regarding the mental capacity of the deceased to make a dying declaration could be tested during trial. the satisfaction of the learned magistrate regarding the mental fitness of the declarant is paramount as in the absence of such satisfaction, the dying declaration loses all its value. but, in this case, unfortunately, the learned magistrate, except getting opinion from the doctor, has not recorded his satisfaction as to whether the deceased was in a fit state of mind to make a dying declaration or not. therefore, in our considered view, we cannot attach any importance to the dying declaration. 9. assuming that ex.p10 could be given some weightage, it is in total variance with ex.p5. according to ex.p5, the next dying declaration given by the deceased to the sub inspector of police, the occurrence had taken place on the 1st floor of the motor shed of the deceased. the house of the deceased is situated at a far off place. according to the dying declaration, the occurrence had taken place at his house, whereas, according to ex.p5, the occurrence had taken place on the 1st floor of the motor shed. this contradiction has also not been explained away. further when the ex.p5 was recorded, the deceased was very much in the hospital and the doctor was also there. why no certificate from the doctor was obtained by the sub inspector of police regarding his mental fitness also has not been explained away. above all, had the medical records been produced before the court, atleast to some extent, the court would have been in a position to come to the conclusion as to what was the condition of the deceased at or about when ex.p5 was recorded. but the medical records have been completely suppressed by the prosecution. therefore, no importance could be attached to ex.p5 also. 10. the next comes the important evidence of p.w.18. p.w.18 states that at 4 p.m., when he visited the hospital, the deceased told him that he was set on fire by his wife by pouring petrol and by setting fire. the deceased had not stated anything about the 1st accused. but the present version of the accused, which has been projected through ex.p5 is that the 1st accused attacked the deceased with iron rod on his head and both the accused 1 and 2 poured petrol and set fire. thus, the evidence of p.w.18 is completely contradicted ex.p5 and both ex.p5 and the evidence of p.w.18 are contradicted by ex.p10. 11. it is too well settled that when there are multiple dying declarations, there should be consistency between them. for any reason, if there are inconsistencies, the court may prefer to accept one dying declaration, while rejecting the other, provided, there are sufficient grounds to accept the former in preference to the others. but, in the instant case, we do not find any such ground to accept any one of the dying declarations. therefore, as per the settled law, we find no other option except to reject all the dying declarations, one under ex.p5, the other under ex.p10 and the 3rd one - the oral dying declaration made to p.w.18. if all the three dying declarations are, thus, rejected, absolutely, there is no other evidence against the accused. therefore, the accused are entitled for acquittal. 12. in the result, (i) this appeal is dismissed as abated as against the 1st appellant/1st accused kasiviswanathan. (ii) this appeal is allowed as against the 2nd appellant/2nd accused mrs.angammal and the conviction and sentence imposed on her by the trial court is set aside and she is acquitted of all the charges. find amount, if any paid by her, shall be refunded to her. bail bond shall stand automatically terminated.
Judgment:

(Prayer: Appeal is filed under Section 374(2) of the Code of Criminal Procedure against the judgment passed by the learned VI Additional District Judge, Madurai in S.C.No.294 of 2010 dated 06.07.2012.)

S. Nagamuthu, J.

1. The appellants are the accused 1 and 2 in S.C.No.294 of 2010 on the file of the learned VI Additional District Judge, Madurai. One Jeyaveeran was the 3rd accused in the case. The trial Court framed a lone charge against the accused 1 and 2 under Section 302 IPC and framed a charge under Section 302 read with 109 IPC against the 3rd accused. By judgment dated 06.07.2012, the trial Court acquitted the 3rd accused, but convicted the accused 1 and 2 under Section 302 IPC and sentenced them to undergo imprisonment for life and to pay Rs.5,000/- each, in default, to undergo rigorous imprisonment for six months. Challenging the same, the appellants have come up with this appeal.

2. Today, when the appeal was taken up, the learned counsel for the appellants submitted that the 1st appellant/1st accused Mr.Kasiviswanathan died on 23.08.2013 itself. No one has come on record to prosecute the appeal further in his place. Therefore, this appeal stands abated as against the 1st appellant. Thus, now, we are concerned only with the appeal filed by the 2nd accused Mrs.Angammal.

3. The case of the prosecution in brief is as follows:

The deceased in this case was one Mr.Thangaraj. The 1st accused is his son and the 2nd accused is his wife. The 3rd accused is a relative of the deceased and the accused 1 and 2. The accused 1 to 3 were residing in Melakuyilkudi Village. The deceased was a drunkard. He used to come to the house of the accused, developed quarrel frequently demanding return of certain documents relating to the property, which were earlier executed by the deceased in favour of the accused 1 and 2. This is stated to be the motive for the occurrence.

3.1. It is alleged that on 22.04.2002, at 4.30 a.m., the accused was sleeping on the terrace of the motor room in his field. At about 4.30 a.m., it is alleged that on the instigation of the 3rd accused, the accused 1 and 2 came to the motor room, poured petrol on the deceased and set fire. The deceased sustained extensive burn injuries measuring 100%. It is further alleged that the 1st accused attacked the deceased with an iron rod on his head. P.W.1 is the nephew of the deceased. According to him, on the night intervening 21.04.2002 and 22.04.2002, when he was sleeping at his house, he heard the alarm raised by somebody. When he was awakened by the said alarm, he found fire in the motor room of the deceased. He immediately rushed to the said place. The 1st accused also rushed along with him to the place of occurrence. They found the deceased with burn injuries. They took him immediately to the Government Rajaji Hospital at Madurai. He was admitted as inpatient at 5.45 a.m. on 22.04.2002.

3.2. The Doctor gave intimation to the police as well as to the learned Magistrate regarding the admission of the deceased with burn injuries. On receiving intimation, P.W.10 the then Judicial Magistrate No.V, Madurai, went to the hospital. The Doctor attending on the deceased gave opinion that the deceased was conscious and in a fit state of mind to make declaration. P.W.10 asked few questions to satisfy his conscience about the mental fitness of the deceased. After having satisfied with the same, he recorded the dying declaration of the deceased at 7.00 a.m. Ex.P10 is the said judicial dying declaration made by the deceased.

3.3. Similarly on receiving intimation, P.W.6 the Sub Inspector of Police, Nagamalai Pudukottai Police Station went to the hospital and recorded the statement of the deceased at 9.00 a.m. on 22.04.2002. On returning to the police station, he registered a case in Crime No.72 of 2002 under Section 307 IPC at 11.00 a.m. Ex.P5 is the complaint and Ex.P6 is the FIR. He forwarded both the documents to the Court and handed over the case diary to the Inspector of police for investigation.

3.4. P.W.11 took up the case for investigation on 22.04.2002 at 11.00 a.m. itself. He proceeded to the place of occurrence at 12 noon and prepared an observation mahazar and a rough sketch in the presence of P.W.5 and another witness. He recovered a burnt cloth piece and other materials from the place of occurrence under a mahazar. Then, he went to the hospital and examined the deceased at 2.00 p.m. But P.W.11 did not record the statement of the deceased.

3.5. During the course of investigation, on 23.04.2002, at 9.30 a.m., Melakuyilkudi village, he arrested the accused 1 and 2 in the presence of P.W.4 and another witness. On such arrest, the 2nd accused gave a voluntary confession between 9.30 a.m. and 10.15 a.m., followed by the confession of the 1st accused between 10.30 a.m. and 11.00 a.m., P.W.11 recorded the same in the presence of witnesses. In the confession, the 1st accused had disclosed the place, where he had hidden an iron rod. In pursuance of the same, he took the police and the witnesses to the Samanar Malai and produced M.O.4 - iron rod. Then the 2nd accused took the police and the witnesses to her house and produced a plastic can (M.O.5) and an ever silver vessel (M.O.6). P.W.11 recovered the same under a mahazar. On returning to the police station, he forwarded both the accused to the Court for judicial remand and handed over the material objects also.

3.6. While so, at 11.30 a.m., on 24.04.2002, the deceased died in the hospital. P.W.11, therefore, altered the case into one under Section 302 IPC and forwarded the alteration report under Ex.P18 to the Court. Between 3 p.m. to 5.30 p.m., he conducted inquest on the body of the deceased in the hospital. Then, he forwarded the body for postmortem.

3.7.P.W.7 conducted autopsy on the body of the deceased on 25.04.2002 at 10.00 a.m. He found extensive burn injuries measuring 100%. He also found a lacerated injury measuring 5 x 1 cm x bone depth on the right side of the forehead. Ex.P8 is the Postmortem Certificate. He gave opinion that the deceased would appear to have died of extensive superficial burns of about 100% associated with head injury.

3.8. P.W.11, during the course of investigation, made a request to the Court to forward the material objects for chemical examination. Finally, he handed over the case diary to the successor for further investigation. P.W.12 took up the case for investigation on 27.07.2002 and finally, he laid charge sheet against the accused under Section 302 read with 109 IPC.

3.9. Based on the above materials, the trial Court framed charges as detailed in the 1st paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 22 witnesses were examined, 23 documents and 6 material objects were marked.

4. Out of the said witnesses, P.W.1 (the nephew of the deceased) has stated that he heard the alarm raised by the deceased and when he rushed to the motor pump set, he found the deceased in flames and he has further stated that the 1st accused also rushed along with him to the motor shed to extinguish the fire. P.W.2 is yet another nephew of the deceased. P.W.3, who is the daughter of the deceased, has also stated so. P.W.4 has spoken about the arrest of the accused 1 and 2. P.W.4 was examined to speak about the arrest of the accused 1 and 2 and their confession statements. But he turned hostile and he has not supported the case of the prosecution. P.W.5 has spoken about the preparation of the observation mahazar and rough sketch and the recovery of material objects. P.W.6 is the Sub Inspector of Police, who recorded Ex.P5 statement of the deceased and registered the case. P.W.7 is the Doctor, who conducted autopsy on the body of the deceased. He has spoken about the final opinion regarding cause of death.

4.1. P.W.8 is the Constable, who carried the dead body to the hospital for postmortem. P.W.9 has stated that he handed over the material objects to the Court as directed by the Inspector of Police. P.W.10 is the learned Judicial Magistrate, who recorded the dying declaration Ex.P10. She has stated about the same. She has further stated that she obtained the certificate from the Doctor attending on the deceased that he was conscious and fit to make statement. P.Ws.11 and 12 have spoken about the investigation done by them and the final report filed. P.W.13 is the Head Clerk of the Court, who has spoken about the fact that he has forwarded material objects to forensic lab for chemical examination as ordered by the learned Magistrate. P.W.14 is the Chemical Analyst, who has stated that there were bloodstains on the material objects. P.W.15 is a distant relative of the deceased, who has also stated that on hearing the alarm raised by the deceased, he went to the place of occurrence and found the deceased in flames. P.W.16 has spoken about the observation mahazar and rough sketch prepared. P.W.17 has turned hostile and he has not supported the case of the prosecution in any manner. P.W.18 is the brother of the deceased. He has stated that at 4.00 p.m., on the date of occurrence, when the deceased was in the hospital, the deceased told him that his wife set fire to him. P.Ws.19, 20 and 21 turned hostile and they have not supported the case of the prosecution in any manner. P.W.22 is yet another nephew of the deceased, who has also stated that he took the deceased to the hospital and admitted.

5. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witnesses on their side nor to mark any documents. Their defence was a total denial. Having considered all the above, the trial Court convicted these accused and that is how, they are before this Court with this appeal.

6. We have heard the learned counsel for the appellants, the learned Additional Public Prosecutor for the respondent State and we have also perused the records carefully.

7. This is a case based on circumstantial evidence. The prosecution relies on the dying declaration given by the deceased. The earliest dying declaration (Ex.P10) was given to the Judicial Magistrate, wherein, the deceased had stated that the occurrence had taken place at his house, whereas according to the prosecution case, the occurrence had taken place on the first floor of the motor pump set room, which is situated far away from the house of the deceased. So far as this dying declaration is concerned, the Doctor had opined that the deceased was conscious and he was fit enough to give dying declaration. But, unfortunately, the said Doctor, who gave such certificate, has not been examined before the trial Court so as to afford an opportunity to the accused to test the veracity. The opinion of the Doctor is not admissible at all in evidence in the absence of the examination of the Doctor. Thus, as of now, there is no medical evidence that the deceased was in a fit state of mind to make a dying declaration.

8. That apart, a perusal of Ex.P10 would go to show that the learned Magistrate did not record his satisfaction that the deceased was in a fit state of mind to make dying declaration. More than any other dying declaration, a dying declaration recorded by a learned Magistrate carries sanctity, because there is a guarantee that what was said by the declarant had been truly recorded by the learned Magistrate. That sanctity cannot be assailed easily, unless there are very strong circumstances brought on record. But, whether the assessment of the Magistrate regarding the mental capacity of the deceased to make a dying declaration could be tested during trial. The satisfaction of the learned Magistrate regarding the mental fitness of the declarant is paramount as in the absence of such satisfaction, the dying declaration loses all its value. But, in this case, unfortunately, the learned Magistrate, except getting opinion from the Doctor, has not recorded his satisfaction as to whether the deceased was in a fit state of mind to make a dying declaration or not. Therefore, in our considered view, we cannot attach any importance to the dying declaration.

9. Assuming that Ex.P10 could be given some weightage, it is in total variance with Ex.P5. According to Ex.P5, the next dying declaration given by the deceased to the Sub Inspector of Police, the occurrence had taken place on the 1st floor of the motor shed of the deceased. The house of the deceased is situated at a far off place. According to the dying declaration, the occurrence had taken place at his house, whereas, according to Ex.P5, the occurrence had taken place on the 1st floor of the motor shed. This contradiction has also not been explained away. Further when the Ex.P5 was recorded, the deceased was very much in the hospital and the Doctor was also there. Why no certificate from the Doctor was obtained by the Sub Inspector of Police regarding his mental fitness also has not been explained away. Above all, had the medical records been produced before the Court, atleast to some extent, the Court would have been in a position to come to the conclusion as to what was the condition of the deceased at or about when Ex.P5 was recorded. But the medical records have been completely suppressed by the prosecution. Therefore, no importance could be attached to Ex.P5 also.

10. The next comes the important evidence of P.W.18. P.W.18 states that at 4 p.m., when he visited the hospital, the deceased told him that he was set on fire by his wife by pouring petrol and by setting fire. The deceased had not stated anything about the 1st accused. But the present version of the accused, which has been projected through Ex.P5 is that the 1st accused attacked the deceased with iron rod on his head and both the accused 1 and 2 poured petrol and set fire. Thus, the evidence of P.W.18 is completely contradicted Ex.P5 and both Ex.P5 and the evidence of P.W.18 are contradicted by Ex.P10.

11. It is too well settled that when there are multiple dying declarations, there should be consistency between them. For any reason, if there are inconsistencies, the Court may prefer to accept one dying declaration, while rejecting the other, provided, there are sufficient grounds to accept the former in preference to the others. But, in the instant case, we do not find any such ground to accept any one of the dying declarations. Therefore, as per the settled law, we find no other option except to reject all the dying declarations, one under Ex.P5, the other under Ex.P10 and the 3rd one - the oral dying declaration made to P.W.18. If all the three dying declarations are, thus, rejected, absolutely, there is no other evidence against the accused. Therefore, the accused are entitled for acquittal.

12. In the result,

(i) This appeal is dismissed as abated as against the 1st appellant/1st accused Kasiviswanathan.

(ii) This appeal is allowed as against the 2nd appellant/2nd accused Mrs.Angammal and the conviction and sentence imposed on her by the trial Court is set aside and she is acquitted of all the charges. Find amount, if any paid by her, shall be refunded to her. Bail bond shall stand automatically terminated.