State of Kerala vs Kannan

J.B. Koshy, J.—This appeal is filed by the State against the order of acquittal passed by the Sessions Court, Kollam. Five accused were charge sheeted for offences punishable under Ss. 143, 147, 148, 324 and 302 read with Section 149 IPC. It was the case of the prosecution that on 15.9.1995 at 11 p.m. near the bridge at Asramam Public road in Vadakkumbhagom in Kollam East Village, the accused formed themselves into an unlawful assembly with common object of committing murder of Gokul Das @ Das, son of Gopinathan armed with sword stick etc. and in prosecution of the common object of the unlawful assembly committed murder and A1 beat Gokuldas with a stick on the head and kicked him on the abdomen and when Gokuldas fell down A2 inflicted cut injuries on the right thigh and right leg with a sword while A3 to A5 with sticks beat and kicked the victim and on 20.9.1995 at 6 a.m. Gokuldas succumbed to the injuries and thereby committed the charged offences.

The First Information Statement was furnished by the deceased Gokuldas himself from the Medical College Hospital, Trivandrum. On the side of the prosecution PWs. 1 to 8 were examined. Except PWs. 1 and 2 all the others were official witnesses. PW. 3 is the Village Officer who prepared the plan. PW. 4 is the Doctor who gave Ext. P4 wound certificate, PW. 5 is the Doctor who conducted postmortem examination and issued Ext. P5 postmortem certificate, PW. 6 is the Head Constable who took FIS from the deceased, PW. 7 is the Sub Inspector who conducted initial investigation and PW. 8 is the Circle Inspector of Police who conducted the investigation after death intimation was given from the hospital. PWs. 1 and 2 are the Occurrence witnesses. They were declared hostile. Even though Exts. P1 and P2 contradictions were marked from the police statement there was no effective cross examination. They stated that they have not seen the incident and they are not aware of the incident. We may also mention here that PW. 2 is a close relative, that is, the first cousin of the deceased. It is the allegation that deceased was affixing wall posters for the C.P.M. candidate. PW. 2 has stated that the deceased was also a party worker. The two occurrence witnesses examined by the prosecution became hostile. Therefore, there is no occurrence witness. Reliance is made only on Ext. P7 F.I. Statement, which according to the prosecution, can be taken as a dying declaration. It is true that it invokes confidence of the Court and it can be relied upon even without any further evidence.

The law relating to dying declaration is summarized by the Apex Court in Kundula Bala Subrahmanyam and Another Vs. State of Andhra Pradesh, as follows:

"A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person, is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration."

While explaining the principle of "Nemo moriturus praesumitur mentire - No one at the point of death is presumed to lie," "A man will not meet his Maker with a lie in his mouth", the Apex Court also reiterated that before accepting such dying declaration court should be satisfied that it has been made by the deceased white he was in a fit mental condition. It was held in Tapinder Singh Vs. State of Punjab and Another, that a dying declaration not being a deposition in Court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is based on the principle of necessity. The weak points of a dying declaration serve to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinise all the relevant attendant circumstances. It was held by the Apex Court in Smt. Laxmi Vs. Om Prakash and Others, that:

".. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it..."

The Apex Court further held as follows:

"A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by Investigating Officer has been discouraged and this Court has urged the Investigating Officer availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the Investigating Officer or the police officer later on relied on as dying declaration...."

Before going into Ext. P7 F.I. Statement and acceptability and admissibility of it as a dying declaration, we may analyse the postmortem certificate. PW. 5 the Doctor who conducted postmortem examination noted the following antemortem injuries:

INJURIES (ANTE MORTEM)

Sutured healing wound 0.5 cm long and 0.5 cm deep, surrounded by an abrasion 3 x 2 cm on the right side of head 3 cm above the ear.

Healing superficial incised wound 5 x 0.5 cm, obliquely placed on the outer aspect of right arm its lower front end being 12 cm below the top of shoulder.

Abrasion 10x 2cm vertically placed on the outer aspect of right thigh 10cm above knee.

Sutured infected wound 3 cm long and 0.5 cm deep, vertical on the front of right leg 19 cm below knee.

Sutured infected wound 2 cm long and 0.5 cm deep, horizontal on the front of left leg 17 cm below knee.

Sutured infected wound 1cm long and 0.5 cm deep on the front of leftleg 10cm below knee.

Sutured infected wound 1 cm long and 0.5 cm deep on the back of left forearm 5 cm below elbow.

Healing incised wound 2 x 0.5 cm on the outer aspect of left arm 18 cm above elbow.

Healing incised wound 4 x 0.5 cm obliquely placed on the left side of front of neck its upper back and being 4 cm below ear.

Abrasion 2 x 1 cm on the back of trunk 10 cm, to the left of midline and 10 cm below the top of shoulder.

Sutured infected wound 3 cm long transversely placed on the antimesenteric border of small intestine 180 cms. distal to fixed part of jejunum. The coils of intestine were lustreless, adherent and congested with flakes of pus on the surface. Abdominal cavity contained 50 cc of purulent fluid.

Surgical laparotomy wound 23 cm long on the front of abdomen 5 cm below breast bone.

Surgical drainage wound 2.5 cm long on right flank.

Surgical drainage wound 2.5 cm long on left flank.

Abrasion were covered with black scab. The healing wounds showed adherent margins."

Even though there were many injuries the Doctor certified that death was due to blunt injury sustained to the abdomen and injury No. 11 is also sufficient to cause death independently. There was infection in the injuries. His blood was taken for chemical examination, Ext. P6 shows that his blood contained 46 ml. grams of ethyl alcohol per 100 ml. of blood. The deceased was admitted in the hospital on 15.9.1995 at night. On 16th at 3 p.m. PW. 6 recorded Ext. P7 F.I. Statement. No question was asked or no evidence was adduced to show whether he was conscious at that time and whether he was able to speak. We are considering the statement given by a person who suffered large number of serious injuries and who consumed alcohol. Blood sample was taken after five days of the incident. Ext. P6 chemical analysis report shows the percentage of ethyl alcohol as 46%. Therefore, whether he was able to speak when he was brought to the hospital is a question to be considered. No question was asked to PW. 4 doctor who issued the wound certificate. Even though for five days he was in the hospital no proper dying declaration was registered by summoning a Magistrate. None of the doctors who treated him were examined to show his state of mind when he gave F.I. Statement. No medical records were produced. It was not in evidence whether he knew English. The signature itself was disputed. No evidence was adduced to show that the signature contained in Ext. P7 is the signature of Gokuldas. It is stated that Ext. P7 was recorded in the presence of the father of Gokuldas, but even he was not examined in this case. Therefore, Ext. P7 cannot invoke confidence of the Court and on the sole basis of that, we cannot convict the accused.

Another interesting factor is that according to the prosecution, on the basis of the information furnished by the accused MOs. 3 to 6 were recovered, but no mahazar witness was examined. Even PW. 8 who conducted investigation is silent about the details. When the only two occurrence witnesses turned hostile and when they were not cross examined effectively, the dying declaration said to have been made to the police constable cannot be believed unless it invokes confidence of the Court. Even the father of the deceased who. was said to have been present when F.I. Statement was recorded was not examined. Neither the Doctor nor the nurse was called in at the lime when F.I. Statement was taken from the deceased. PW. 4 or PW. 5 Doctors were not asked about any question regarding capability of giving such a clear statement by the deceased after sustaining serious stab injuries, that too after consumption of large quantity of alcohol. The investigation itself was conducted in a shaby manner. In any event, on going through the evidence in this case we are fully satisfied that there is no reliable evidence to clinch the accused guilty. Further we are of the opinion that in an appeal against acquittal, in the absence of compelling reasons, this Court cannot reverse the finding. (See Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., Hyderabad AIR 2002 SCW 3199 and Pritam Nath and Ors. v. State of Punjab AIR 2002 SCW 3233. Here in this case, we are satisfied that there is no evidence against the accused. Reasons given by the trial court for recording the finding of acquittal after analysing the entire evidence in this case are good and sturdy. Therefore, we confirm the judgment and dismiss the appeal.