Vinod Kumar @ Kulam Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 CRL.A NO. 533 OF 2019** **CRIME NO.311/2010 OF Vattiyoorkavu Police Station,** **Thiruvananthapuram** **AGAINST THE JUDGMENT SC 596/2012 OF I ADDITIONAL DISTRICT** **COURT, THIRUVANANTHAPURAM** **CP 14/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS** **-II,NEDUMANGAD** **APPELLANT/ACCUSED:** **VINOD KUMAR @ KULAM BABU, AGED 37 YEARS S/O.LALAPPAN, VINOD BHAVAN, VAZHOTTUKONAM WARD, PEROORKADA VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS. G.RANJU MOHAN SMT.M.SANTHI (K/868/2011)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031.** **BY PUBLIC PROSECUTOR SMT.SHEEBA THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.533 of 2019 -: 2 :- ## **P.B.SURESH KUMAR & P.G.AJITHKUMAR, JJ. -----------------------------------------------** ## **Crl.Appeal No.533 of 2019** ## **-----------------------------------------------** ## **Dated this the 30[th] day of October, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** The sole accused in S.C.No.596 of 2012 on the files of the Additional Sessions Court -I, Thiruvananthapuram, who stands convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code (IPC), challenges in this appeal, his conviction and sentence in the said case. 2. The accused and his wife Sumi Shekhar, who belong to different communities, were residing in a portion of the house of the parents of the accused. On 18.05.2010, at about 9.30 a.m., the wife of the accused was taken to the Government Hospital, Peroorkkada by her sisters-in-law for treatment of the burn injuries suffered by her at home. As the injuries were found serious, she was referred to the Medical College Hospital. She succumbed to the injuries at about 6.45 p.m. on 25.05.2010, while undergoing treatment at the said hospital. Crl.Appeal No.533 of 2019 -: 3 :- 3. Earlier, at 3.00 p.m., on 25.05.2010, a case was registered against the accused by the Vattiyoorkkavu Police based on the information received from the Medical College Hospital, under Section 307 IPC. It is in the said case, a final report was filed after the death of the wife of the accused, alleging commission of the offence punishable under Section 302 IPC. The accusation is that at about 12.10 a.m. on 18.05.2010, with the intention of causing the death of the wife, the accused poured kerosene on her and set her ablaze. It is alleged that it is annoyed by the conduct of his wife in interacting with other men, the accused caused the death of his wife. 4. As the accused denied the charge framed and read over to him by the Court of Session when committed for trial, the prosecution examined 24 witnesses as PWs 1 to 24 and proved through them Exts.P1 to P29 documents. MOs 1 to 6 are the material objects identified by the witnesses. The accused did not enter on his defence when called upon to do so, though he maintained that he is innocent, during his examination under Section 313 of the Code of Criminal Procedure (the Code). The Court of Session, on an appraisal of Crl.Appeal No.533 of 2019 -: 4 :- the materials on record, found the appellant guilty and convicted him. As noted, the appellant is aggrieved by his conviction and sentence in the case. 5. Heard the learned counsel for the accused as also the learned Public Prosecutor. 6. The learned counsel for the accused did not challenge the case of the prosecution that the deceased sustained burns involving about 44% of her body surface and died on account of the same on 25.05.2010 while undergoing treatment. Instead, the attempt of the learned counsel was to establish that the occurrence was not as alleged by the prosecution and that the accused was in no way responsible for the same. Towards that end, at the outset, it was argued by the learned counsel that the case of the prosecution that the deceased who sustained 44% burns on her body at about 12 a.m., confined herself in her room itself and without informing the occurrence to anyone, not even her parents-in-law who were residing in the other part of the same house throughout the night, is highly unbelievable and improbable. According to the learned counsel, a person in such a situation would naturally scream aloud and in that event, the parents of the -: 5 :- Crl.Appeal No.533 of 2019 accused who are residing in the same building and the sister of the accused who is residing in the same compound would have naturally known about the occurrence. It was submitted by the learned counsel that the same coupled with the fact that the deceased informed the doctors who examined her at Government Hospital, Peroorkkada as also at the Medical College Hospital that she suffered the burn injuries by accident from the cooking stove at the house, would indicate beyond doubt that the case of the prosecution that the accused set her ablaze at night, is an utter lie. The fact that the deceased had not deviated from the said stand until 25.05.2010, according to the learned counsel, reinforces the falsity in the case of the prosecution. It is the case of the prosecution that on receiving information from the Medical College Hospital, a statement of the deceased was recorded by the police at 1.00 p.m. on 25.05.2010. It is also the case of the prosecution that later, as required by the police, PW14, a doctor attached to the Medical College Hospital, recorded the dying declaration also of the deceased at 4.30 p.m. on the same day. It was pointed out by the learned counsel that the Court of Session treated the statement aforesaid as a dying declaration and it is solely Crl.Appeal No.533 of 2019 -: 6 :- based on the same as also the dying declaration recorded by PW14, the court below found the accused guilty of the offence alleged. It was argued by the learned counsel that the evidence let in by the prosecution itself would demonstrate that the deceased was not in a fit state of mind on 25.05.2010 to give dying declarations. The learned counsel relied on the various entries in Ext.P10 case record maintained at the Medical College Hospital in connection with the treatment of the deceased to substantiate the said contention. It was also argued by the learned counsel that the materials on record would show that the dying declarations stated to have been made by the deceased, are not given by her. The essence of the submissions made by the learned counsel is that the Court of Session ought not have convicted the accused in a case of this nature based on the dying declarations stated to have been made by the deceased to the Police as also to PW14. 7. Per contra, the learned Public Prosecutor supported the conviction of the accused pointing out that there are three statements in the case which could be treated as dying declarations. The first is the statement orally made by the deceased to her brother, PW1 at about 9.30 a.m. on Crl.Appeal No.533 of 2019 -: 7 :- 25.05.2010. The second is the statement recorded on the same day from the deceased by the police at 1.00 p.m. The third is the statement recorded by PW14 on the same day at 4.30 p.m. It was submitted by the learned Public Prosecutor that all the three statements are consistent, and in the absence of any material to indicate that the same were not made voluntarily by the deceased, the Court of Session cannot be found fault with for having placed reliance on the same to convict the accused. As regards the different version given by the deceased before the Doctor, PW11 as to the cause of the injuries sustained by her, it was submitted by the learned Public Prosecutor that it can certainly be inferred from the materials on record that all throughout the period of treatment, the deceased was expecting to recover and come back to normal life and this might be the reason as to why she had not implicated her husband at the first instance, for if she recovers, she has to reside with him only, especially since it has come out in evidence that her marriage with the accused was not to the liking of the members of her family. In reply to the submissions made by the learned counsel for the accused based on the entries in Ext.P10 case record, it was argued by Crl.Appeal No.533 of 2019 -: 8 :- the learned Public Prosecutor that inasmuch as the entries therein relied on by the accused have not been proved by him, the same cannot be relied on by the court. 8. We have examined the arguments advanced by the learned counsel for the parties. 9. There is no direct evidence in the case for the occurrence alleged by the prosecution. As rightly pointed out by the learned counsel for the accused, the prosecution attempted to prove the alleged occurrence based on the dying declarations claimed to have been given by the deceased to PW1, the Police, as also PW14. The fact that the aforesaid three dying declarations would fall within the scope of Section 32(1) of the Indian Evidence Act and the same or any of them can be the sole basis for convicting the accused, if found reliable and trustworthy, cannot be doubted. The point that arises for consideration, in the circumstances, is whether the dying declarations relied on by the prosecution as referred to above, are reliable and trustworthy and whether they inspire confidence of the court to convict the accused solely based on the same. 10. Before delving into the point, it is necessary to Crl.Appeal No.533 of 2019 -: 9 :- refer to the relevant evidence in the case. As noted, PW1 is the brother of the deceased. PW1 identified the signature of the deceased in Ext.P1 First Information Statement stated to have been given by her to the police. PW1 deposed that the deceased got married to the accused on her own volition and that she used to be tortured and harassed by the accused. He deposed that on 18.05.2010 at about 9 a.m., the sister of the accused, Sasikala called him over telephone and informed him that the deceased is unwell and that she has been taken to the Government Hospital, Peroorkada. PW1 deposed that when he went to the said hospital, it was found that his sister was placed in an ambulance for being taken to the Medical College Hospital. He deposed that he was told by Sasikala that the deceased suffered burn injuries accidentally from the cooking stove at home. He deposed that while the deceased was undergoing treatment at the Medical College Hospital, at about 9.30 a.m. on 25.05.2010, the deceased told him that on 17.05.2010 at night, when the accused picked up a quarrel with her, she poured a little kerosene on her body in order to scare him and requested the accused to give his mobile phone to contact PW1. He deposed that he was told by the deceased Crl.Appeal No.533 of 2019 -: 10 :- that the accused then poured some more kerosene on her body and threw a burning match stick on her. He deposed that he was told by the deceased that since the said match stick did not light fire on her body, the accused went near her and lit fire on her upper garment. PW1 deposed that he was told by the deceased that even though she wanted the accused to take her to the hospital, he did not heed to the said request and she had therefore come to the hospital on the next day with the help of the sisters of the accused. PW1 deposed that he informed the matter immediately to the duty doctor and nurse and they, in turn, informed the matter to the police. During cross-examination, PW1 deposed that he did not restrain the accused from coming to the hospital and he is not aware whether the accused had met the deceased at the hospital and talked with her. The suggestion made by the learned counsel for the accused to PW1 during crossexamination was that the deceased did not give any statement at all to anyone and the statements claimed to have been given by the deceased are all manipulated by PW1. PW1 denied the said suggestion. 11. PW2 is the step-mother of the deceased. She Crl.Appeal No.533 of 2019 -: 11 :- deposed that she was taking care of the deceased in the hospital till her death. She deposed that on 25.5.2010, the deceased required her to call PW1 to the hospital and when PW1 came to the hospital accordingly, the deceased told him that it is the accused who set her ablaze, after pouring kerosene on her and that the accused refused to take her to the hospital. PW2 testified that the accused had come to the hospital and talked with the deceased twice. PW4 is the sister of the accused, Sasikala. She deposed that the deceased was taken to the hospital on 18.05.2010 by her along with Sivakala, another sister of the accused, and she was told by the deceased that she sustained the injuries from the cooking stove at home. 12. PW11 is the doctor who examined the deceased for the first time at the Government Hospital, Peroorkada. PW11 deposed that the cause of injury was narrated to her by the deceased as “രരവവലല 6½ യ� വ�ടവൽ വച� stove ല�രടവല�റവച� ല�രളവയ�വനരൽ" and the deceased was conscious and oriented at that time. PW14 is the doctor attached to the Medical College Hospital who recorded the dying declaration of the deceased. Ext.P9 is the dying declaration stated to have -: 12 :- Crl.Appeal No.533 of 2019 been recorded from the deceased by PW14. PW14 deposed that at about 4.30 p.m. on 25.05.2010, he recorded the dying declaration at Ward No.25 of the hospital. PW14 deposed that the deceased was conscious, oriented to time, place and person and was able to talk at the relevant time. PW14 deposed that then the deceased was physically and mentally fit also. PW15 was the Chief of the Unit in which the deceased was admitted and treated at the Medical College Hospital. PW15 deposed that it is on his instruction that PW14 recorded the dying declaration of the deceased. PW15 proved the case record maintained at the Medical College Hospital in connection with the treatment of the deceased. In crossexamination, PW15 admitted that the patient was given oxygen from 4.30 p.m. onwards to reduce the respiratory distress. 13. PW19 was the Sub Inspector of Police attached to the Vattiyoorkavu Police station during the relevant period. PW19 deposed that it is he who recorded Ext.P1 Statement from the deceased, and that the signature contained therein is that of the deceased. He deposed that after recording the statement, as the condition of the deceased was found to be Crl.Appeal No.533 of 2019 -: 13 :- serious, he made arrangements for recording the dying declaration of the deceased by the concerned Judicial Magistrate and in the meanwhile, he instructed the Superintendent of the Medical College Hospital to make necessary arrangements to record the dying declaration of the deceased through a doctor. It was also deposed by PW19 that though he reached the hospital with the Magistrate after some time, the patient passed away by the time. In crossexamination, though it was suggested to PW19 that the signature contained in Ext.P1 Statement is not one put by the deceased, he denied the same. 14. Let us now consider the point in the background of the said evidence. It is trite that in a case of this nature, it is obligatory for the court to ensure that the deceased was in a fit state of mind to give dying declarations propounded by the prosecution. Similarly, it is obligatory for the court, in a case of this nature, to ensure that the statements/declarations are not vitiated due to tutoring, prompting or imagination. As noted, in the case on hand, there are three dying declarations of the deceased. We have already referred to the evidence tendered by PW1 as regards the dying Crl.Appeal No.533 of 2019 -: 14 :- declaration claimed by the prosecution to have been given by the deceased to him. The relevant portion of Ext.P1 Statement relied on by the prosecution as a dying declaration, reads thus: "ല�രവരഴ രരതവ (18.05.2010) 12 മണവ കഴവഞ� ഓരരരന� �റഞ� ഞരന" ഭർതരവ" �മവൽ വഴകരയവ. ഭർതരവ� എലന ഇടവച� �റയവൽ �ളവയവട. എന" വഴകരയ�� ലകരണ� ഇനവയ" എനവക�വന� വയരലയന� �റഞ� ഞരൻ അടകളയവൽ ല�ന� . . കറച� മല66ലയടത� ര7ഹരതരഴവച ര�ടവപവകരൻ രവണവയരണ� ഞരനങലന ല�യ�� എനരൽ, ഭർതരവ� ഉടലന ബരകവ മല66 കടവ എല@ ര7ഹലതരഴവച. എനവട� ഞരൻ �ലന കതവച� �രര" എന� �റഞ� അയരൾ ബ�ഡവ കതവചവട� ��ലപടവ ലകരളവ എല@ ര7ഹതവട. അ�� കതവയവല. അയരൾ �വരവലക മറവയവൽ ര�രയവ. ഞരനവവലടയവരന കരഞ. അയരൾ അരപരൾ വ�ണ" അടകളയവൽ വനവരന� ഞരൻ കതവച�രരലമന . �റഞ� ഞരനവടവരന ചരവ7രറവല@ രടരപവൽ ��ലപടവ കതവച വച തണവ കതവയരപരൾ . ഞരൻ അണയരൻ രനരകവ ഞരൻ ലവപരള" കരണവചരപരൾ അയരൾ ലവള" എടത� ര7ഹലതരഴവചവട ര�രയവ കവടന. ഞരൻ തണവ മരറവയവട� ഫരനവല@ മടവൽ നവന. ലവപരള" ' �വടവച� ഞരൻ ആശ�തവയവൽ എലന ലകരണ� ര�രകരൻ �റഞ. അരപരൾ ഞരനവരപരൾ ആശ�തവയവൽ ലകരണര�രയരൽ എലന ര�രല�സ� �വടവകലമന� അയരൾ �റഞ'. ഞരൻ രരവവലല വലര ഫരനവല@ ക�ഴവൽ ഇരന. രരവവലല 5 മണവരയരലട അയരൾ എഴരനറ� ര�രയവ.” ## Ext.P9 is the dying declaration stated to have been recorded from the deceased by PW14. Ext.P9 reads thus: "7വവസവ" ഭർതരവ� എലന ഉ�ദവവകരറണ� സ"ഭവ7വവസ"(18/5/10, 00.10 am) ഭർതരവമരയവ വഴക� ഉണരയ�വലന തടർന� ഞരൻ സUയ" ര7ഹത� കറച� . മല66ലയരഴവച� ര�ടവപവച അര�തടർന� ഭർതരവ� കലറകടവ മല66 ലയരഴവച� ബ�ഡവകതവച രWഷ" ��ലപടവലകരളവ എല@ ര7ഹരതക� എറവഞ അ�� കതരത�വലന തടർന� വ�ണ" ��ലപടവ കതവച� എല@ ര7ഹത� ലകരളതവ. ഞരൻ സUയ" ��ലകടതവ . എലന ആശ�തവയവലലതവകരൻ �റഞരപരൾ എലന മറവയവൽ പടവയവട� ഭർതരവ� ര�രയവ എല@ നരതനരണ� ആശ�തവയവൽ എതവച��.” The evidence tendered by PW1 and the documents aforesaid, namely Exts.P1 and P9, would indicate that the dying declarations relied on are more or less consistent and the Crl.Appeal No.533 of 2019 -: 15 :- trivial inconsistencies therein are only to be ignored as natural, since admittedly, the deceased was undergoing treatment in the hospital at the relevant time for the serious burn injuries sustained by her. The pointed questions, therefore, are whether the deceased was in a fit state of mind at the relevant time and whether the statements/declarations are vitiated in any manner due to tutoring, prompting or imagination. 15. Ext.P10 is the case record maintained at the Medical College Hospital, Thiruvananthapuram in connection with the treatment given to the deceased. Ext.P10 has been produced and proved by the prosecution through their witness, PW15. Ext.P10 being a public record, the entries therein are admissible in evidence in terms of Section 35 of the Indian Evidence Act, even in the absence of the evidence of the person concerned who entered relevant entries in the same. [See **Harpal Singh v. State of H.P.** , (1981) 1 SCC 560 and **Jayant Gopalrao Pachade v. Motilal Kuber Kanoje** , 2008 SCC OnLine Bom 638]. The opening page of Ext.P10 case record is the summary sheet. In the case record, a few pages are titled 'DOCTORS ORDERS' and the remaining pages are titled 'NURSES RECORD'. It is seen that the entries in the pages -: 16 :- Crl.Appeal No.533 of 2019 titled 'DOCTORS ORDERS' are made by the Doctors who have examined the patient and the entries in the pages titled 'NURSES RECORD' are made by the nurses who attended to the patient. There is an entry in the summary sheet of Ext.P10 case record that the dying declaration of the patient was recorded by the Sub Inspector of Police at 4 p.m. on 25.05.2010. There is a similar entry in one of the pages titled 'DOCTORS ORDERS' below the entry made by the Doctor at 4.30 p.m. on 25.5.2010. The said entry reads thus : “Dying declaration taken by R.Madhusoodanan Pillai, SI of Police (Crime), Vattiyoorkkavu Police Station”. The police officer referred to in the entry is PW19. In the same page, after a few entries, there is an entry that the patient expired at 6.45 p.m. The prosecution has no case that the entries in the case record as regards the dying declaration do not pertain to Ext.P1 Statement. If so, it is doubtful as to whether Ext.P1 is a statement recorded at the time at which it is purported to have been recorded. 16. Be that as it may, let us now examine the condition of the deceased on 25.05.2010 as revealed from the case record. In one of the pages titled 'NURSES RECORD' there is an entry “pt c/o disorientation S/B duty doctor”, indicating -: 17 :- Crl.Appeal No.533 of 2019 that the patient lost orientation and has been seen by the doctor. The said entry is seen to be made at 10.00 a.m. on 25.05.2010. There is a corresponding entry in the page titled 'DOCTORS ORDERS' also, which, on a careful reading, can be understood as a request from the Duty doctor to the Duty Psychiatrist to examine the patient. The said entry reads thus : “To ## Duty Psychiatrist Kindly come and see this patient, a case of 35% burns now c/o altered consciousness and irrelevant talk and advice regarding the patient.” There is another entry below the aforesaid entry by one Dr.Ajeesh, a Psychiatrist at 3.30 p.m. on the same day to the effect that the history of the patient was understood as disclosed by the brother of the patient and that the brother denied disoriented behaviour of the patient and maintained that she is able to identify her relatives. It is also stated in the entry that the patient has a history of her mother committing suicide (burning herself). The impression made by the Psychiatrist as endorsed therein is “Delirium _”_ , which is explained later. Even though the pages in the case record titled 'DOCTORS ORDERS' and 'NURSES RECORD' are not serially numbered and a few pages without numbers are seen inserted -: 18 :- Crl.Appeal No.533 of 2019 therein, even if the insertion of pages in the case record are taken as genuinely made, it could be seen that the duty doctor has seen the patient thereafter at 4.30 p.m. and found that the patient was suffering from respiratory distress. It is also recorded by the Doctor in the entry made at 4.30 p.m. that poor prognosis of the patient at that time was informed to the bystander step-mother, indicating that the condition of the patient was deteriorating. There is also a direction in the said entry to make necessary arrangements to provide oxygen inhalation facility to the patient. This fact has been affirmed by PW15, the head of the Unit also. It is thereafter that the entry regarding the recording of the dying declaration of the patient by PW19 has been made in a different handwriting. 17. It is seen that the brother of the patient referred to in the entry aforesaid is PW1. Even though PW1 maintained the stand that the deceased had not lost her orientation at the time when the Psychiatrist examined her, the impression of the Psychiatrist as recorded is only that the deceased was able to identify her relatives. The state of delirium is defined in MODI - A Textbook of Medical Jurisprudence and Toxicology Twenty Seventh Edition thus: “It is a disturbance of consciousness, in which orientation is -: 19 :- Crl.Appeal No.533 of 2019 impaired, the critical faculty is blunted or lost and the thought content is irrelevant or incoherent. Hallucinations and illusions may be present. Delirium may be caused by organic illness (as in some type of fevers) or by psychological factors.” In the background of the condition of the deceased as revealed from the entries made in Ext.P10 case record, especially the impression created by the Duty Psychiatrist that the patient was suffering from Delirium, which could be caused either by organic illness or by psychological factors, we are unable to hold that the deceased was in a fit state of mind to give the statements/declarations relied on by the prosecution as dying declarations. 18. We have already found that Ext.P1 statement was not one recorded at the time at which it was purported to have been recorded. This finding of ours is fortified by the evidence given by PW19 that after recording Ext.P1 statement, as the patient's condition was deteriorating, he instructed the authorities at the hospital to record the dying declaration of the patient through a Doctor by the time he was able to secure the presence of a Magistrate for the said purpose. Going by the evidence tendered by PW14, the dying declaration so recorded was at 4.30 p.m. If that be so, it can be inferred that Ext.P1 might be a statement prepared just prior to Ext.P9 dying -: 20 :- Crl.Appeal No.533 of 2019 declaration claimed to have been recorded by PW14. It is all the more so, in the light of the fact that the entry regarding Ext.P1 in the case record is made only after the Doctor's entry at 4.30 p.m. Apart from the doubt as to the time at which Ext.P1 statement is purported to have been recorded, there are reasons for us to doubt the genuineness of the said document as well. One reason is that it does not contain the signature of the woman police officer who is stated to have noted the body note of the patient in that document. Another reason is that since the condition of the patient was deteriorating gradually on that day, it is doubtful as to whether the deceased could affix her signature in Ext.P1. Yet another reason is that the signature contained in Ext.P1 as that of the deceased is hazy and appeared to us to be an involuntary one caused to be affixed by the deceased with the help of others. We take this view also for the reason that the signature of the deceased was not there in Ext.P9 which we found as a document prepared just after Ext.P1. 19. Coming to the evidence given by PW1, it has come out that he was not maintaining a good relationship with the accused as his marriage with the deceased was an inter- -: 21 :- Crl.Appeal No.533 of 2019 caste love marriage. That apart, while PW2, the step-mother of the deceased admitted in her evidence that the accused had visited and talked to the deceased on two occasions while she was undergoing treatment, PW1 pleaded ignorance of the same. Similarly, there was a suggestion made by the learned counsel for the accused to PW1 during cross-examination that PW1 and the father of the deceased restrained the accused from coming to the hospital to see the deceased. Of course, PW1 denied the said suggestion, but, according to us, in the aforesaid circumstances, it is not safe to convict the accused based on the evidence of PW1, though it is corroborated by the step-mother of the deceased, PW2. 20. Even though the explanation offered by the learned Public Prosecutor, for the deceased having given a different version about the occurrence to the doctor who examined her for the first time at the Government Hospital, Peroorkada, appears to be a plausible one, in the light of the various facts discussed in the preceding paragraphs, we are unable to accept the said explanation to hold that the version of the deceased in Ext.P1 is correct. Similarly, on an analysis of the entire materials, we also find force in the argument of -: 22 :- Crl.Appeal No.533 of 2019 the learned counsel for the accused that the case of the prosecution as regards the occurrence is not a probable one. For the aforesaid reasons, we are of the firm view that it is a fit case where the accused is entitled to the benefit of doubt. In the result, the criminal appeal is allowed, impugned judgment is set aside and the appellant is acquitted. He shall be set at liberty forthwith from the concerned prison, if his continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the concerned prison, where the appellant is undergoing incarceration. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **P.G.AJITHKUMAR, JUDGE.** ds 11.10.2023