Kalimuthu and Palanisamy vs State

David Annoussamy, J.—This is a common appeal by two accused The accused and the deceased are brothers, living at Rasakapalayam village within the limits of Pollachi Taluk Police Station. They divided lands belonging in common to both of them, but the apple of discord was the common well which was used for the purpose of irrigating the lands of each one of them. While so, on 15-10-1982 at about 5:00 p.m., Kulandaivelu, the deceased was brought by his wife, P.W.1 and his brother-in-law, P.W.5 to the Government Hospital, Pollachi. He was attended to by P.W.6, who saw him first sent intimation, Ex.P3 to the Town Police Station. He also sent intimation, Ex.P8, to the Magistrate, P.W.8 to record the dying declaration of Kulanthaivelu. P.W.12, the Head Constable of the Town Police Station received the intimation at about 6:00 p.m. and later came to the hospital and obtained a statement from the deceased Kulanthaivelu, Ex-P.14, at about 8:00 p.m. to the effect that he was attacked by A1 and A2. He informed the Taluk Police Station within whose limits the occurrence took place and the Head Constable of that Police Station, P.W.13, registered a case in Crime No. 171 of 1982 for an offence u/s 324, IPC. against A1 and A2.

The Investigation was taken up by P.W.14, the Sub Inspector of Police of the Taluk Police Station, who obtained in his turn a statement from Kulandaivelu on 16-10-1982 marked as Ex-P.18. Kulanthaivelu passed away on 14-10-1982 at 2:45 p.m. The Hospital authorities sent death intimation, Ex-P.20, to the Police Station and P.W.14 altered the Section of the offence into one u/s 302, IPC, Ex-P.21. Upon receipt of that express information, P.W.15, the Inspector of Police took up further investigation. The accused surrendered before the Judicial Second Class Magistrate, at Erode on 22-10 1982. The further investigation was completed by another Inspector of Police, P.W.16, who filed a report u/s 173, Crl.P.C to the effect that an offence u/s 302 read with Section 34, I.P.C. appeared to have been committed by both the accused. The Sessions Court framed charges accordingly. The accused pleaded not guilty. The prosecution adduced the evidence collected in the course of investigation consisting of 16 witnesses, out of whom two eye-witnesses turned hostile, 23 exhibits and 5 material objects. When the accused was examined in respect of the incriminating circumstances appearing against him in the evidence of the prosecution, they denied the evidence and went to the extent of saying that they were not present at that time in the village.

The trial Court after analysing the evidence and on hearing the arguments from both sides came to the conclusion that the charges were definitely proved and accordingly convicted the accused u/s 302 read with Section 34, I.P.C and sentenced them to imprisonment for life, by judgment dated 15-3-1984 against which this appeal is directed.

The essential piece of evidence in this case are as follows:

There were originally three eye-witnesses, but two of having turned hostile, there was the only testimony of P.W.2, who is a farm servant under the second accused. The second set of evidence consists of the dying declarations viz., the one given to the Second Class Judicial Magistrate, Ex-P8 and the other given to the Head Constable of the Pollachi Taluk Police Station, Ex-P.14 and the statement given to the Sub-Inspector of Police, Ex.P18.

These pieces of evidence are said to be corroborated by the medical evidence viz., the evidence of P.W.6, who saw the deceased Kulandaivelu with injuries and gave the description thereof and P.W.7, who conducted the autopsy and gave opinion regarding the cause of death. The above evidence is assailed by the learned Counsel for the accused on two grounds, the first and foremost is that the dying declarations which are the main piece of evidence of the prosecution are inadmissible. In this respect, he would rely on Section 32 of the Indian Evidence Act and also on judgment of the Mysore High Court reported in Mallappa Shivlingappa Chanagi v. State of Mysore 1962 M.L.J, Cri. 25. His argument is that the dying declarations would become relevant and admissible only if they relate to the circumstances of the transaction which resulted in his death and that in the present case it is not so.

The learned Public Prosecutor would say that the decision rendered by the Mysore High Court relied on by the learned Counsel for the accused would not apply because in the present case there is a post-mortem and the opinion of the Doctor who conducted post-mortem clearly shows that the death is attributable to the injuries caused by the accused, whereas in the case relied upon, there is no such post-mortem. Therefore the question would turn to find out whether the injuries attributed to the accused have been the cause of death in this case as per the evidence of the prosecution.

P.W.7, while in the box would say that the death could have been caused by the cumulative effect of all the injuries numbering 14 as detailed below:

Vertical incised wound 6 x 1 1/2 cm. X Bone Deep over scalp left frontal area.

Incised wound 1 x 1/2 x 3/4 cm. above left eye brow.

Vertical incised wound 1 cm. above injury No. (l) 4 x 1/2 x I/2 cm.

Horizontal incised wound middle of left thigh lateral aspect 6 x 3 cm. x Bone deep with muscles cut,

Oblique incised wound above left knee lateral aspect 6 1/2 x 3 x 2 cm,

Punctured wound 2 1/2 x 1 1/2 x 2 cm. above left axilla.

Incised wound horizontal 4 x 1 x 1/2 cm. back of left hand middle,

Horizontal Incised wound postero lateral aspect of left side of neck 1/2 x 2 1/2 x vertebral deep with all ghuchis cut upto Bone.

Incised wound back of neck below injury No. 82 x 1 x 1/2 cm.

Incised wound left shoulder top 1 1/2 x 1 x 1/2 cm-

Incised wound over left scapular 1 1/2 x 1 cm. x 1/2 cm.

Vertical Incised wound 3 x 1/2 x 1/4 cm. middle of left upper arm.

Incised wound purnal of left ear middle with middle ear cut 3 x 1/2 cm.

Abrasion left middle finger tip.

He further added that the above said injuries could have caused septicaemia. It is in the above piece of evidence that the learned Additional Public Prosecutor would place reliance in his endeavour to establish that there is sufficient evidence to show that the injuries imputed to the accused would have caused the death. But in the course of cross-examination, P.W.7 has admitted that he was not aware of the kind of treatment given to Kulanthaivelu. He also stated that pus was found in some of the injuries which constituted a secondary infection. He further added that if the operation theatre was clean or if rusted surgical instruments were not made use of, the complication would not have occasioned. He also excluded that in the present case septicaemia would have been caused by natural illness of the deceased. These statements throw doubt on the cause of death, whether it is caused by the cumulative effect of the injuries or by the septicaemia. But, P.W.7 has issued the post-mortem certificate, Ex.P7 and which was filed by the prosecution itself, in which P.W.7 has stated in unambiguous term that the deceased would appear to have died of septicaemia due to multiple injuries. We have therefore to draw necessarily by the conclusion that the death is not attributable to the injuries but was caused by septicaemia as per the evidence on record taken together.

The three dying declarations on which the prosecution relied on to connect the accused with the crime implicating accused 1 and 2 as the persons having caused the injuries therefore become inadmissible u/s 32 of the Indian Evidence Act because they do not contain any of the circumstances which are proved to have resulted in his death.

We have now to examine whether atleast an offences u/s 324 , I.P.C. as contemplated at the beginning by the officer registering the crime has been established. The only piece of evidence to that effect is the deposition of P.W.2, whose presence at the scene of occurrence is corroborated as per prosecution by the dying declarations. We have stated already that the dying declarations pressed into service u/s 32 of the Indian Evidence Act are inadmissible. We have therefore left with the evidence of P.W.2 alone. P.W.2 in his chief examination itself would say that on the date next to the occurrence, he was taken to the Police Station, that he was released on bail thereafter and that he was examined as a witness after the death of Kulanthaivelu and that P.W.5 told him that he could be exonerated if he comes forward to give evidence against accused 1 and 2. It is also to be noted that he is the farm servant of the second accused and that as per the dying declaration he was also armed with an Aruval. It would therefore be extremely dangerous to base a conviction upon the deposition of a sole witness like P.W.2, who has been first considered as one of the accused and who has come forward to give evidence upon inducement. His evidence cannot therefore be acted upon and no criminal liability can therefore be attached on the accused. The above analysis of the evidence produced by the prosecution shows that the case of the prosecution cannot be accepted and that the conviction and sentence imposed on the accused are not sustainable.

In the result, this appeal is allowed and the conviction and the sentence are set aside.