Jose and others Vs. State of Kerala
EmailAppeal: Criminal Appeal No.562 of 1986
Petitioner: Jose and others
Respondent: State of Kerala
Apeal: Criminal Appeal No.562 of 1986
Judges: M.M.PUNCHHI & K.JAYACHANDRA REDDY,JJ.
Date of Judgment: Aug 19, 1994
Head Note:
CRIMINAL LAW
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 Section 2 (a) read with section 379 Criminal Procedure Code
I.P.C. – Section 302 and 449 read with section 34 – Murder – Two dying declarations – One recorded by Doctor in the presence of another doctor and answers in Malayalam to four questions recorded by the Doctor – Thumb impression not taken as thumbs and hands completely broken –
Held:
That the responsible doctor has done a right thing by recording the dying declaration – A1 and A3 rightly mentioned in dying declaration and so rightly convicted – High Court’s view upheld as dying declaration was supported by witness PW3 and PW5 – Identity of A2 not established particularly when PW3 an eye witness did not mention his participation – A2 given benefit of doubt.
Held –
Learned counsel for the appellants, however, submitted before us that if there are two dying declarations with variations then neither of them can be relied upon. We see no force in this submission. Ex.P.22 is a statement subsequently recorded by the police officer by way of a statement under Section 161 Cr.P.C. and he would have recorded in his own words and many a times that may not contain the true account of the statement given by the deceased. That cannot be a reason to discard Ex.P.13 recorded by P.W.21 and attested by P.W.22 who are independent witnesses. P.W.21,who is a responsible Doctor, finding the condition of the deceased critical has done a right thing by recording the dying declaration which is in the form of questions and answers. (Para 6)
The evidence of P.W.3 is assailed on the ground that he is an interested witness but having carefully examined his evidence we see no reason to doubt his veracity so far A-1 and A-3 are concerned. P.W.5 also mentioned about A-1 and there is no reason to doubt his evidence to that extent. P.W.8 also deposed at that the time of occurrence, he saw A-1 and identified him as the first accused. It can thus be seen that so far A-1 and A-3 are concerned, the dying declarations as well as the evidence of .W.3 coupled with the evidence of P.W.5 would clearly show that they were present and participated in the occurrence. The same cannot be said of A-2. The High Court appears to have convicted him mainly on the basis of Ex.P.13 but as already mentioned his identity is not established clearly particularly when P.W.3, an eye-witness, did not mention about A-2 having participated in the occurrence. Therefore, in our view, he is entitled to benefit of doubt. (Para 6)
In any event, the dying declaration Ex.P.13 is amply corroborated by the evidence of P.W.3 so far as the presence and participation of A-1 and A-3 in the crime are concerned. (Para 7)
In the result, A-2 Joseph @ joy @ Kala Joy is acquitted of all the charges and the convictions and sentences of A-1, Jose and A-3 Varkey @ Varkichan as awarded by the High Court are confirmed. Accordingly the appeal is allowed so far A-2 is concerned and dismissed as against A-1 and A-3. (Para 8)
JUDGEMENT:
K.JAYACHANDRA REDDY,J.
1. This is an appeal under Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 read with Section 379 Cr.P.C. The three appellants herein, original accused nos.1 to 3, were tried for offences punishable under Sections 449 and 302 read with 34 I.P.C. and they were acquitted by the trial court. On an appeal filed by the State, a Division Bench of the High Court set aside the order of acquittal and convicted them under Sections 302 read with 34 I.P.C. and sentenced each of them to undergo imprisonment for life. However, no separate sentence was awarded for the offence punishable under Sections 449 read with 34 I.P.C. Hence the present appeal. The prosecution case is as follows:
The deceased one Jose, the accused and the material witnesses P.Ws.3 and 5 belong to Kothamangalam. There was enmity between the accused and the deceased because of some land disputes. On 10.1.1981 the deceased alongwith P.Ws. 3 and 5 and others were playing cards in the Knight’s Club room situated in the upstairs portion of the Kothamangalam Municipal Shopping Centre. After 9 P.M. they stopped playing the cards and P.Ws. 3 and 5 went out of the room and came to the verandah. Subsequently Jose also came out of the room and after entering the verandah when he was proceeding towards the staircase for coming down, A-1 who was standing on the verandah near the wall assaulted Jose with choppers cutting on his leg and when the deceased Jose turned to enter the Club room, A-3 also assaulted and cut Jose from behind. The deceased entered the room and tried to close the door alongwith P.W.5 but the door was pushed open and the accused after entering the room attacked Jose and inflicted injuries all over his body. Seeing the attack P.W.3 ran towards another room and contacted the police by phone. Immediately, P.W.28, the Sub Inspector of Police alongwith the police party came and found the deceased lying in front of the Bava’s room with many grievous injuries and was bleeding profusely. Immediately the deceased was taken to the Government Hospital in a taxi of P.W.7. P.W.21, a Doctor, and his colleague attended on the deceased but finding his condition critical, P.W.21 recorded his dying declaration Ex.P.13. Ex.P.12. is the wound certificate prepared by him. P.W.21 also sent intimation to the police. P.W.28 came to the Hospital and recorded another dying declaration Ex.P22 at about 9.15 P.M. The deceased died immediately thereafter. An entry was made to this effect and on the basis of dying declarations, the F.I.R. was issued. P.W.29, the Circle Inspector, held the inquest. P.W.22, another Doctor, conducted the post-mortem and he found as many as 39 incised and penetrating wounds. On internal examination he found that pericardium was injured and lungs were congested. He opined that the death was due to cumulative effect of all the injuries and they were sufficient in the ordinary course of nature to cause death. Ex.P.17 is the post -mortem certificate. P.W.29 took up the investigation but he was transferred and P.W.28 carried on the investigation. The accused surrendered before the Magistrate and subsequently they were granted bail. After completion of the investigation, the charge-sheet was laid and the case was committed to the Court of Sessions. The prosecution examined P.Ws.1 to 26. When examined under Section 313 Cr.P.C. the accused denied the offence.
2. The prosecution relied on the two dying declarations Ex.P.13 and Ex.P.22 and mainly on the evidence of P.Ws.3 and 5 who witnessed the occurrence. The trial court having examined Ex.P.13 and Ex.P.22 held that many other persons in the locality bear the same names as mentioned in these dying declarations and there was a difference in the names given in Ex.P.13 and Ex.22 and in view of the medical evidence it is highly doubtful whether the deceased would have been in a position to make the dying declarations and therefore the dying declarations cannot be relied upon. Coming to the evidence of the eye-witnesses the trial court held that in view of certain infirmities their evidence cannot be relied upon without corroboration and accordingly acquitted the appellants.
3. The High Court, on the other hand, held that the Doctor, P.W.21 is an independent witness and that Ex.P.13 was truly and correctly recorded and can be relied upon. The High Court, however, was not prepared to place reliance on Ex.P.22 recorded by the Sub Inspector, P.W.28 inasmuch as he recorded the Statement in his own words. Coming to the evidence of the eye-witnesses the High Court held that P.W.3 is the main witness and he has spoken to the participation of A-1 and A-3 in the crime and the High Court to some extent relied on the evidence of P.W.5. Having examined Ex.p 13 and the evidence of P.W.5 the High Court held that the learned Session Judge grossly erred in acquitting the accused and accordingly set aside the order of acquittal and convicted all the three accused as mentioned above.
4. Learned counsel for the appellants before us submitted that the reasons given by the trial court for discarding Ex.P.13 and Ex.P.22 are quite sound and that the evidence of P.Ws. 3 and 5 has rightly been found untrustworthy and that the reasons given by the trial court for acquitting the appellants are unassailable and that at any rate the view taken by the learned Sessions Judge cannot be said to unreasonable and in those circumstances the High Court ought not to have interfered in an appeal against acquittal.
5. Since this a regular appeal, we have gone through the two dying declarations and the evidence of material witnesses carefully and we have also heard learned counsel for both sides at length. It is well-settled that the conviction can be based on the dying declaration itself provided it is satisfactory and reliable and if there are any infirmities of such nature warranting further assurance, than the courts have to look for corroboration.
6. Since there are direct witnesses as well as dying declarations, it may not be necessary for us to examine the motive aspect. The time and place of occurrence are not in dispute. According to the prosecution, after the attack police was contacted by phone and P.W.28, Sub Inspector, came to the place of occurrence immediately. Since condition of the injured deceased was critical he was shifted within minutes to the Hospital where P.W.21 examined him and he recorded the dying declaration Ex.P.13 in the presence of P.W.22, another Doctor, who also signed as a witness. Both P.Ws.21, and 22 deposed that inspite of the injuries, the deceased was conscious and he was able to give answers to the questions recorded in Ex.P.13. The two Doctors also have explained as to why the thumb impression of the deceased could not be obtained on the statement because the thumb and hands were completely damaged. Ex.P.13 consists of answers to four questions asked by P.W.21 in Malayalam. The evidence of P.Ws.21 and 22 would show that Ex.P.13 was truly and correctly recorded and it is a correct statement of what the deceased told in answers to the questions. The two doctors also deposed that they were satisfied that the deceased was at that time conscious and capable of understanding the questions and give the answers accordingly. So far Ex.P.22 is concerned, the criticism is that it is a fabricate document prepared by the police officer and the contents would show that the deceased could not have given such answers. The High Court having examined Ex.P.22 observed that P.W.28, the Sub Inspector, must be subscribing something of his own to the answers given by the injured deceased and therefore it was not relied upon. Learned counsel for the appellants, however, submitted before us that if there are two dying declaration with variations then neither of them can be relied upon. We see no force in this submission. Ex.P.22 is a statement subsequently recorded by the police officer by way of a statement under Section 161 Cr.P.C. and he would have recorded in his own words and many a times that may not contain the true account of the statement given by the deceased. That cannot be a reason to discard Ex.P.13 recorded by P.W.21 and attested by P.W.22 who are independent witnesses. P.W.21, who is a responsible Doctor, finding the condition of the deceased critical has done a right thing by recording the dying declaration which is in the form of questions and answers. The learned Sessions Judge gave much importance to the names mentioned in Ex.P.13 and the description of the accused. The main contention is that there are many people bearing the same names in the town. The High Court having examined the relevant evidence observed that there is absolutely nothing in the evidence to show that there are other persons having the same names and descriptions of A-1 and A-3 as mentioned in Ex.P.13 and we agree with the High Court so far as A-1 and A-3 are concerned, having been rightly mentioned and descripted in Ex.P.13. So far A-2 is concerned, the same cannot be said. There is corroborating evidence of P.W.3 who is an eyewitness to the occurrence. He has spoken to the presence and participation of A-1 and A-3 but he does not swear to the participation of A-2 and he also stated that the he did not know whether A-2 was called by the name Kala Joy and also admitted that to his knowledge there is another elderly person by the name of Kala Joy who was a drunkard. The evidence of P.W.3 is assailed on the ground that he is an interested witness but having carefully examined his evidence we see no reason to doubt his veracity so far A-1 and A-3 are concerned. P.W.5 also mentioned about A-1 and there is no reason to doubt his evidence to that extent. P.W.8 also deposed at that the time of occurrence, he saw A-1 and identified him as the first accused. It can thus be seen that so far A-1 and A-3 are concerned, the dying declarations as well as the evidence of P.W.3 coupled with the evidence of P.W.5 would clearly show that they were present and participated in the occurrence. The same cannot be said of A-2. The High Court appears to have convicted him mainly on the basis of Ex.P.13 but as already mentioned his identity is not established clearly particularly when P.W.3, an eye-witness, did not mention about A-2 having participated in the occurrence. Therefore, in our view, he is entitled to benefit of doubt.
7. We have examined the reasons given by the trial court and we find that the learned Sessions Judge discarded Ex.P.13 on a comparison with the contents of Ex.P.22 which is not correct. In any event, the dying declaration Ex.P.13 is amply corroborated by the evidence of P.W.3 so far as the presence and participation of A-1 and A-3 in the crime are concerned.
8. In the result, A-2 Joseph @ joy @ Kala Joy is acquitted of all the charges and the convictions and sentences of A-1, Jose and A-3 Varkey @ Varkichan as awarded by the High Court are confirmed. Accordingly the appeal is allowed so far A-2 is concerned and dismissed as against A-1 and A-3.
1. This is an appeal under Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 read with Section 379 Cr.P.C. The three appellants herein, original accused nos.1 to 3, were tried for offences punishable under Sections 449 and 302 read with 34 I.P.C. and they were acquitted by the trial court. On an appeal filed by the State, a Division Bench of the High Court set aside the order of acquittal and convicted them under Sections 302 read with 34 I.P.C. and sentenced each of them to undergo imprisonment for life. However, no separate sentence was awarded for the offence punishable under Sections 449 read with 34 I.P.C. Hence the present appeal. The prosecution case is as follows:
The deceased one Jose, the accused and the material witnesses P.Ws.3 and 5 belong to Kothamangalam. There was enmity between the accused and the deceased because of some land disputes. On 10.1.1981 the deceased alongwith P.Ws. 3 and 5 and others were playing cards in the Knight’s Club room situated in the upstairs portion of the Kothamangalam Municipal Shopping Centre. After 9 P.M. they stopped playing the cards and P.Ws. 3 and 5 went out of the room and came to the verandah. Subsequently Jose also came out of the room and after entering the verandah when he was proceeding towards the staircase for coming down, A-1 who was standing on the verandah near the wall assaulted Jose with choppers cutting on his leg and when the deceased Jose turned to enter the Club room, A-3 also assaulted and cut Jose from behind. The deceased entered the room and tried to close the door alongwith P.W.5 but the door was pushed open and the accused after entering the room attacked Jose and inflicted injuries all over his body. Seeing the attack P.W.3 ran towards another room and contacted the police by phone. Immediately, P.W.28, the Sub Inspector of Police alongwith the police party came and found the deceased lying in front of the Bava’s room with many grievous injuries and was bleeding profusely. Immediately the deceased was taken to the Government Hospital in a taxi of P.W.7. P.W.21, a Doctor, and his colleague attended on the deceased but finding his condition critical, P.W.21 recorded his dying declaration Ex.P.13. Ex.P.12. is the wound certificate prepared by him. P.W.21 also sent intimation to the police. P.W.28 came to the Hospital and recorded another dying declaration Ex.P22 at about 9.15 P.M. The deceased died immediately thereafter. An entry was made to this effect and on the basis of dying declarations, the F.I.R. was issued. P.W.29, the Circle Inspector, held the inquest. P.W.22, another Doctor, conducted the post-mortem and he found as many as 39 incised and penetrating wounds. On internal examination he found that pericardium was injured and lungs were congested. He opined that the death was due to cumulative effect of all the injuries and they were sufficient in the ordinary course of nature to cause death. Ex.P.17 is the post -mortem certificate. P.W.29 took up the investigation but he was transferred and P.W.28 carried on the investigation. The accused surrendered before the Magistrate and subsequently they were granted bail. After completion of the investigation, the charge-sheet was laid and the case was committed to the Court of Sessions. The prosecution examined P.Ws.1 to 26. When examined under Section 313 Cr.P.C. the accused denied the offence.
2. The prosecution relied on the two dying declarations Ex.P.13 and Ex.P.22 and mainly on the evidence of P.Ws.3 and 5 who witnessed the occurrence. The trial court having examined Ex.P.13 and Ex.P.22 held that many other persons in the locality bear the same names as mentioned in these dying declarations and there was a difference in the names given in Ex.P.13 and Ex.22 and in view of the medical evidence it is highly doubtful whether the deceased would have been in a position to make the dying declarations and therefore the dying declarations cannot be relied upon. Coming to the evidence of the eye-witnesses the trial court held that in view of certain infirmities their evidence cannot be relied upon without corroboration and accordingly acquitted the appellants.
3. The High Court, on the other hand, held that the Doctor, P.W.21 is an independent witness and that Ex.P.13 was truly and correctly recorded and can be relied upon. The High Court, however, was not prepared to place reliance on Ex.P.22 recorded by the Sub Inspector, P.W.28 inasmuch as he recorded the Statement in his own words. Coming to the evidence of the eye-witnesses the High Court held that P.W.3 is the main witness and he has spoken to the participation of A-1 and A-3 in the crime and the High Court to some extent relied on the evidence of P.W.5. Having examined Ex.p 13 and the evidence of P.W.5 the High Court held that the learned Session Judge grossly erred in acquitting the accused and accordingly set aside the order of acquittal and convicted all the three accused as mentioned above.
4. Learned counsel for the appellants before us submitted that the reasons given by the trial court for discarding Ex.P.13 and Ex.P.22 are quite sound and that the evidence of P.Ws. 3 and 5 has rightly been found untrustworthy and that the reasons given by the trial court for acquitting the appellants are unassailable and that at any rate the view taken by the learned Sessions Judge cannot be said to unreasonable and in those circumstances the High Court ought not to have interfered in an appeal against acquittal.
5. Since this a regular appeal, we have gone through the two dying declarations and the evidence of material witnesses carefully and we have also heard learned counsel for both sides at length. It is well-settled that the conviction can be based on the dying declaration itself provided it is satisfactory and reliable and if there are any infirmities of such nature warranting further assurance, than the courts have to look for corroboration.
6. Since there are direct witnesses as well as dying declarations, it may not be necessary for us to examine the motive aspect. The time and place of occurrence are not in dispute. According to the prosecution, after the attack police was contacted by phone and P.W.28, Sub Inspector, came to the place of occurrence immediately. Since condition of the injured deceased was critical he was shifted within minutes to the Hospital where P.W.21 examined him and he recorded the dying declaration Ex.P.13 in the presence of P.W.22, another Doctor, who also signed as a witness. Both P.Ws.21, and 22 deposed that inspite of the injuries, the deceased was conscious and he was able to give answers to the questions recorded in Ex.P.13. The two Doctors also have explained as to why the thumb impression of the deceased could not be obtained on the statement because the thumb and hands were completely damaged. Ex.P.13 consists of answers to four questions asked by P.W.21 in Malayalam. The evidence of P.Ws.21 and 22 would show that Ex.P.13 was truly and correctly recorded and it is a correct statement of what the deceased told in answers to the questions. The two doctors also deposed that they were satisfied that the deceased was at that time conscious and capable of understanding the questions and give the answers accordingly. So far Ex.P.22 is concerned, the criticism is that it is a fabricate document prepared by the police officer and the contents would show that the deceased could not have given such answers. The High Court having examined Ex.P.22 observed that P.W.28, the Sub Inspector, must be subscribing something of his own to the answers given by the injured deceased and therefore it was not relied upon. Learned counsel for the appellants, however, submitted before us that if there are two dying declaration with variations then neither of them can be relied upon. We see no force in this submission. Ex.P.22 is a statement subsequently recorded by the police officer by way of a statement under Section 161 Cr.P.C. and he would have recorded in his own words and many a times that may not contain the true account of the statement given by the deceased. That cannot be a reason to discard Ex.P.13 recorded by P.W.21 and attested by P.W.22 who are independent witnesses. P.W.21, who is a responsible Doctor, finding the condition of the deceased critical has done a right thing by recording the dying declaration which is in the form of questions and answers. The learned Sessions Judge gave much importance to the names mentioned in Ex.P.13 and the description of the accused. The main contention is that there are many people bearing the same names in the town. The High Court having examined the relevant evidence observed that there is absolutely nothing in the evidence to show that there are other persons having the same names and descriptions of A-1 and A-3 as mentioned in Ex.P.13 and we agree with the High Court so far as A-1 and A-3 are concerned, having been rightly mentioned and descripted in Ex.P.13. So far A-2 is concerned, the same cannot be said. There is corroborating evidence of P.W.3 who is an eyewitness to the occurrence. He has spoken to the presence and participation of A-1 and A-3 but he does not swear to the participation of A-2 and he also stated that the he did not know whether A-2 was called by the name Kala Joy and also admitted that to his knowledge there is another elderly person by the name of Kala Joy who was a drunkard. The evidence of P.W.3 is assailed on the ground that he is an interested witness but having carefully examined his evidence we see no reason to doubt his veracity so far A-1 and A-3 are concerned. P.W.5 also mentioned about A-1 and there is no reason to doubt his evidence to that extent. P.W.8 also deposed at that the time of occurrence, he saw A-1 and identified him as the first accused. It can thus be seen that so far A-1 and A-3 are concerned, the dying declarations as well as the evidence of P.W.3 coupled with the evidence of P.W.5 would clearly show that they were present and participated in the occurrence. The same cannot be said of A-2. The High Court appears to have convicted him mainly on the basis of Ex.P.13 but as already mentioned his identity is not established clearly particularly when P.W.3, an eye-witness, did not mention about A-2 having participated in the occurrence. Therefore, in our view, he is entitled to benefit of doubt.
7. We have examined the reasons given by the trial court and we find that the learned Sessions Judge discarded Ex.P.13 on a comparison with the contents of Ex.P.22 which is not correct. In any event, the dying declaration Ex.P.13 is amply corroborated by the evidence of P.W.3 so far as the presence and participation of A-1 and A-3 in the crime are concerned.
8. In the result, A-2 Joseph @ joy @ Kala Joy is acquitted of all the charges and the convictions and sentences of A-1, Jose and A-3 Varkey @ Varkichan as awarded by the High Court are confirmed. Accordingly the appeal is allowed so far A-2 is concerned and dismissed as against A-1 and A-3.
