State vs Kuruvilla Ouseph

Kumara Pillai, J.—In this case the State has filed an appeal against an order of acquittal passed by the Additional Sessions Judge of Alleppey and this Court has also issued notice to the accused on Calendar Revision to show cause why the acquittal should not be set aside. We are at present concerned only with the case against accused 1. He was charged in the Sessions Court with the offence of murder punishable under S. 302, Penal Code for having caused the death of one Ouseph Chacko of Madhavappilli Purayidom in a compound known as Manakka Parambu, Kallarakka, Thalayazham Pakuthy, Vaikom Taluk. His father, who was accused 2, was charged along with him for abetment of the murder. The learned Additional Sessions Judge acquitted both of them. Hence the appeal by the State.

Manakka Parambu or Purayidom is a big compound which lies sloping from south to north. On account of its sloping nature the compound has been terraced, and at the time of the occurrence some of the upper terraces were under tapioca cultivation. The tapioca was planted by lessees, one of whom was P.W. 7, father of P.W. 6. The plot to the north of the plot planted by P.W. 7 was in the possession of one Kuruvilla, and that plot was also under tapioca cultivation at the time of the occurrence. To the north of, that is to say, below, Kuruvilla''s plot there was a low stone-bund running right across the property from east to west and the land below the bund was lying vacant without any cultivation. Through that vacant land there was a trace, or foot-path, coming from east to west and joining a lane on the western side of Manakka Purayidom. In Ext. N sketch the trace, or foot-path, running through the vacant land from east to west is shown by a dotted line, and the lane to the west of Manakka Purayidom is shown as a foot-path lying between Manakka Purayidom and Kottuparambu Purayidom. The trace running through Manakka Purayidom from east to west crosses the lane or foot-path mentioned above and continues westwards through Kottuparambu. In Kottuparambu there is a house a little to the south-west of the point where the trace enters that compound after crossing the lane. P.W. 4 lives in that house. The scene of occurrence in this case is said to be a spot on the trace naming through the vacant land in Manakka Purayidom about 52 feet to the west of the house of P.W. 4. Point D in Ext. N plan is the spot where the occurrence is said to have taken place, and point A is the house of P.W. 4. P.W. 7 and his daughter, P.W. 6, live in the house shown as, point C in Ext. N plan, about 300 feet to the north-east of point D.

The prosecution case in the Sessions Court was that while the deceased Chacko was returning home from his shop at about 7-30 P.M. on 17-10-1951, the 2nd accused struck down the torch which Chacko had in his hands and the 1st accused stabbed him with a pen-knife on the abdomen and right arm and that Chacko died at about 1-15 A.M. that night in the Vaikom Government Hospital as a result of the injuries inflicted by the 1st accused. According to the prosecution, there was previous enmity between the 1st accused and Chacko on account of the latter having taken some part in an arbitration concerning the theft of a buffalo committed by the 1st accused and one of his friends a few days before the occurrence. As a result of that arbitration the 1st accused had to pay about Rs. 200/- to the owner of the buffalo and at the close of the arbitration Chacko had also suggested that the 1st accused should be handed over to the Police. It is alleged that on the date of the occurrence Chacko had gone from his shop to the house of one of his sons and that at the time of the occurrence he was returning home in the company of one of his relatives, P.W. 5, carrying a lighted cadjan torch. They are said to have come from the north, southwards through Manakka Purayidom, and after crossing the stone-bund and striking the trace to have turned westwards and proceeded westwards along the trace. P.Ws. 6 and 7 claim that when Chacko and P.W. 5 were coming south-wards they themselves were standing in the court-yard of their house and that suspecting that poachers were in the tapioca cultivation on the northern side of the stone bund they came to their plantation and saw from there the 1st accused stabbing Chacko. P.W. 1 claims that immediately after the occurrence he heard Chacko crying out to him that the 1st accused had stabbed him and that on hearing this cry he ran to point D. According to P.W. 4, he came upon the injured Chacko a little to the west of point D and at that spot P.W. 6 also joined him. While they were bandaging Chacko''s injuries other persons also came to the spot. Chacko was subsequently removed from there to the hospital where he died alter making two statements, one to the Police, which is Ext. B, and the other, which is Ext. E (1), to the Taluq Second Class Magistrate, Vaikom. The accused''s plea was one of total denial. They contended that they had nothing to do with the occurrence and had been falsely implicated. Besides P.Ws. 5, 6 and 7 mentioned above the prosecution examined P.Ws. 10 and 14 also as eye-witnesses. The learned Sessions Judge acquitted the accused holding that the evidence of P.Ws. 5, 6, 7, 10 and 14 was unreliable and that Ext. E (1) could not be legally acted upon as it was not recorded by a Magistrate who was empowered to record statements under S. 164, Criminal P.C.

Although P.W. 4 is not an eye-witness in the sense that term is usually understood, he has given important evidence regarding the occurrence and the identity of the assailant who stabbed the deceased Chacko, and his evidence, if true and reliable, would go a long way in establishing the prosecution case against the 1st accused. (After discussing the evidence of P.Ws. 4, 6 and 7 and other witnesses and accepting the evidence of P.Ws. 4, 6, and 7, the judgment proceeded:)

Besides the evidence of the witnesses mentioned above the prosecution also relied upon Ext. E (1) as a dying declaration made by the deceased Chacko. After he was removed to the Hospital, Chacko made two statements. One of them is Ext. B which is the First Information Statement recorded from him by the investigating officer, P.W. 17 at 11 P. M. on 17-10-1951, and the other is Ext. E (1) recorded from him at 12-10 in the same night by P.W. 13, the Taluq Second Class Magistrate of Vaikom under S. 164, Criminal P.C. The prosecution relied upon Ext. E (1) as a dying declaration admissible in evidence under S. 32(1), Evidence Act. The Sessions Judge discarded Ext. E(1) on the grounds that it was recorded by a Magistrate who was not empowered to record statement under S. 164, Criminal P.C., and that there were discrepancies between the statement in it and Ext. B. For discarding Ext. 1 on the ground that it was recorded by a Magistrate who was not empowered to record statements under S. 164, the learned Judge has relied upon tho Privy Council decision in - AIR 1936 253 (Privy Council) . The statement excluded from consideration in AIR 1936 253 (Privy Council) , was a confession recorded from the accused during the course of the investigation by a Magistrate who was not specially empowered to take statements under S. 164. The statement was sought to be made use of in that case as a confession; and since before recording the confession the Magistrate had to warn the accused and also to be satisfied that the confession he was going to make would be made voluntarily, it was held in that case that the statement recorded by a Magistrate not empowered to make statements under S. 164, Criminal P.C., could not be accepted and acted upon. In the present case, Ext. E (1) is sought to be made use of not as a statement under S. 164, Criminal P.C., but purely as a flying declaration coming under S. 32(1), Evidence Act. No particular procedure has been prescribed by any provision of law for recording such a declaration, and it is also not necessary to give any warning before a dying declaration is recorded. Even a layman is competent to record a dying declaration and prove the same in the usual manner like other facts and documents. When a Magistrate not specially empowered to records statements under S. 164, Criminal P.C. takes down a statement which subsequently turns out to be a dying declaration, there is nothing in Jaw to prohibit the Magistrate from proving in the ordinary manner the statement made to him by the deceased person. In this case, after recording the statement made to him by the deceased Chacko, P.W. 13 read over the statement to him and Chacko admitted it to be correct and also signed the same. The Magistrate has proved both Chacko''s statement and the fact that the statement made by Chacko has been correctly recorded by him in Ext. (E)(1). We therefore consider that Ext. (E)(1) is admissible in evidence and can be taken due note of as a dying declaration under S. 32(1), Evidence Act. Our view is also fortified by the opinion expressed by a Bench of the Lahore High Court in-''Muhammed Sarfraz Khan v. Crown'', 52 Cri LJ 1425 (Lah) (B). In that case it has been said:

The case before the Privy Council was one of an improperly recorded confession. Now the law itself provides that when a confession has to be recorded by a Magistrate in the course of police investigation, the Magistrate, before he proceeds to record the confession, must warn the prisoner that he is not under any obligation to make a confession and that the confession, if made, may be used as evidence against him, and it is only after he has given this warning that he can proceed to record the concession, and that too if after questioning the prisoner he is satisfied that the confession he is going to make would be made voluntarily. The classes of Magistrates who are competent to record confession are specified and the lowest class declared competent for the purpose is class 2nd if specially empowered for the purposes. No such procedure, however, has been prescribed by law where the statement to be recorded is not a confession but a statement of a witness. It is true that under S. 164, Criminal P.C. the only Magistrate who is competent to record the statement of a witness is a 1st class Magistrate or a specially empowered 2nd Class Magistrate and that the statement has to be taken down in the manner prescribed by the Code of Criminal Procedure. But a Magistrate recording a statement under that section is not required to give any such warning as is necessary in the case of a confession, and it is this difference in the recording of the confession of an accused and the statement of a witness that courts subsequently to the Privy Council decision in AIR 1936 253 (Privy Council) have held that even where the statement of a dying man is recorded by an incompetent Magistrate in the course of police investigation the case is not governed by the principle of that authority, and that the statements of deceased persons though recorded by incompetent Magistrates are admissible as dying declarations.

In our opinion the learned Sessions Judge has committed a mistake of law in excluding Ext. E(1) from consideration as that statement has been properly proved by the Magistrate who recorded it. It should have been taken into consideration as a dying declaration under S. 32(1), Evidence Act, even though the Magistrate who recorded it, was not empowered to record a statement under S. 164, Criminal P.C.

The version in Ext. E (1) is exactly similar to the version given by P.Ws. 6 and 7. According to that statement, when Chacko was coming alone the trace with a lighted cadjan torch in his hands, the 2nd accused struck down the torch from his hands and the 1st accused stabbed him with a pen-knife on the abdomen and on the right arm. Chacko had not referred in Ext. E to the 2nd accused or the act attributed to him in Ext. E (1). Nor had he stated in Ext. B that he has cadjan torch in his hands as he was coming along the trace. The Sessions Judge considered these omissions to be material discrepancies between the two statements. Ext. B was recorded just after Chacko was removed to the hospital. He must have been in intense pain at that time, and P.W. 17 has only taken down a very short statement from him in Ext. B. The endeavour at that time was to get the cardinal facts from him and not to ascertain all the details. The fact that Chacko had a cadjan torch in his hands and that the 2nd accused struck it down from his hands before the first accused stabbed him are only matters of detail. The most important facts to be ascertained from the dying man at that time was the identity of the person who stabbed him and how the injuries were caused. As regards the main facts there is no difference at all between Exts. B and E (1). So long as the two statements agree in regard to the main facts and do not contradict each other, the mere omission to refer to all or some of the details in one of them cannot be said to be a discrepancy. Considering the evidence given by P.Ws. 4, 6 and 7 we would accept Ext. E (1) also as reliable evidence against the first accused.

Lastly it was contended that there are some discrepancies in the evidence of P.Ws. 19 and 20 who speak to the prosecution case regarding motive. The learned Judge says that their depositions are conflicting as regards the place of arbitration and the person to whom the price of the stolen buffalo was paid. From the evidence of P.Ws. 19 and 20 it is seen that what has been termed as arbitration was only a sort of negotiation or mediation during the course of which the mediators and parties moved from place to place. There is not, therefore, much substance in the contention that the statements of P.Ws. 19 and 20 do net agree as regards the actual place of arbitration. The question of motive is not very material in a case in which there is good and convincing evidence as regards the actual occurrence itself.

We are convinced that the evidence of P.Ws. 4, 6 and 7 is true and absolutely reliable. Their evidence proves beyond the shadow of a doubt that the 1st accused stabbed the deceased Chacko at the scene of occurrence with a pen-knife and inflicted the injuries on his abdomen and right arm described in Exts. C and G. We hold that Ext. E (1) also is admissible in evidence under S. 32(1), Evidence Act, as a dying declaration made by the deceased Chacko. That statement also proves that it was the first accused who stabbed Chacko and inflicted the injuries found on his body at the time of, his admission to the hospital and described in Exts. C and G. P.Ws. 6 and 7 as well as P.Ws. 1 and 2 speak to the fact of Chacko''s removal from Manakka Purayidom to the Vaikom Hospital after the occurrence, P.Ws. 1 and 2 are Chacko''s sons. They and the Medical Officer have testified to his death in the hospital the very same night. The injuries found on Chacko''s body at the time of his admission to the hospital have been described by P.W. 8 in Ext. C and in the evidence he gave in the Sessions Court. The nature of those injuries has already been referred to in Para. 7 above. According to P.W. 8, the cause of Chacko''s death was shock and hemorrhage resulting from the injuries described in Exts. C and G. The nature of the injuries inflicted and the weapon used, and the manner of the attack at night, all indicate that the first accused stabbed Chacko with the intention of causing his death. There is no case that he had received any grave and sudden provocation from Chacko. In the circumstances we hold that the Prosecution has made out the charge of murder under S. 302, I.P.C., against the 1st accused. Accordingly, we allow the appeal filed by the State so far as he is concerned, and set aside his acquittal by the Additional Sessions Judge. We find the first accused guilty of the offence of murder and convict him under S. 302, I.P.C., and sentence him to transportation for life. Ordered accordingly in the proceedings taken on calendar revision also.