IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
CRL.A NO. 885 OF 2016
AGAINST THE JUDGMENT IN CP NO.116/2005 OF JUDICIAL MAGISTRATE OF
FIRST CLASS -I, KOLLAM
SC 679/2008 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV,
KOLLAM / III ADDL.M.A.C.T.
APPELLANTS/ACCUSED NOS.1 & 2:
1 KOCHU BIJU @ BINOY
PUTHEN THOPPIL PADINJATTATHIL, NEENDAKARA VILLAGE,
KARUNAGAPPALLY.
2 SIYAD @ PACHAPPULLI
S/O.ISMAIL, H & C COMPOUND, PALLITHOTTAM CHERRY,
KOLLAM EAST VILLAGE.
BY ADV SRI.K.SIJU
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.V.S.SREEJITH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2022,
THE COURT ON 08.06.2022 DELIVERED THE FOLLOWING:
Crl.Appeal No.885 of 2016
2
K.VINOD CHANDRAN & C.JAYACHANDRAN,JJ
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Crl.Appeal No.885 of 2016
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Dated this the 8th of June, 2022
JUDGMENT
Vinod Chandran, J.
The deleterious effects of moral policing; life was taken, of one who indulged in it, is the case projected by the prosecution. The deceased and his friends, in their late teens used to play cricket in the vacant plot near which a lady of allegedly loose morals lived. There were frequent visitors to the said house which was objected to by the deceased and his friends. On the first instance in this case, the prosecution alleged, on 06.03.2004 the 1st accused went to that house with a lady, and on his way back, those who were playing in the ground waylaid him. There was a wordy altercation and push and pull after which A1 threatened the persons who waylaid and asked them to verify his antecedents in Crl.Appeal No.885 of 2016 3 Neendakara, again as an ominous warning. The friends chased A1 and the deceased thrashed him up on the road near a shop. A1 returned with a gang on 13.03.2004 and the deceased and his friends ran for their lives. Again A1 and A2 with some others confronted the deceased and PW23 and roughed them up. The deceased asked PW23 to summon their friends, upon which, PW23 ran away, so to do. By the time PW1 and his friends came to the spot, the deceased had moved further and was lying wounded in front of one Prakasan's house. PWs.1, 21, 23 and 24 took the injured in an autorickshaw, who was declared dead in the Distrct Hospital. The deceased died of a penetrating knife injury.
2. There were 11 accused arrayed before the trial Court, but A3 to A11 were acquitted. A1 and A2 were found guilty of the offences under Ss.143 147 148 342 and 302 r/w S.149 of IPC. A1 and A2 were also acquitted under S.323 and S.120B of IPC and S.235(1) of Cr.PC. The convicted accused were sentenced with rigorous Crl.Appeal No.885 of 2016 4 imprisonment (RI) for three months each under S.143, RI for six months each under Ss.148 & 342 and imprisonment for life with a fine of Rs.25000/- each with default sentence. Set off was allowed and the sentence was directed to run concurrently.
3. Sri.Siju Kamalasanan, learned Counsel, appeared for A1 and A2 and submitted that there were no eye witnesses and the sole witness to prove the last seen theory was PW23, whose testimony is unbelievable. The earlier incident on 06.03.2004 was spoken of by PWs.1, 24 & 25 and that of 13.03.2004 by more witnesses but different versions. The trial Court convicted the accused based on three circumstances; (i) last seen theory, (ii) dying declaration and (iii) recovery of knife. PW23's identification of A1 & A2 for the purpose of last seen theory is on a sticky wicket. He had seen A1 only on 13.03.2004; that too at a distance and in a group without identifying him. On 20.03.2004 the alleged incident occurred at night and there is no proof of light Crl.Appeal No.885 of 2016 5 at the scene of occurrence. As per the scene mahazar Ext. P10 the scene where the deceased was found injured was described by PW23 and not the scene of occurrence; which puts the eye-witness testimony of the assault on the deceased in peril. A street light situated 90 meters away from the spot where the accused was taken to the hospital was recorded, but there is no evidence to establish that it was functional. PW23 does not identify the scene of occurrence and according to the other witnesses the spot where the injured was found is 100 metres away from the alleged scene of occurrence; further distant from the street light. PW23 was away from the scene of occurrence only for five minutes and it is very unlikely that the penetrating injuries found on the body could have been inflicted and the accused absconded, within the short interval.
4. The contemporaneous statement made by PW1 in the FIS speaks of five to six persons having accompanied A1 in the assault. But in the testimonies the witnesses Crl.Appeal No.885 of 2016 6 spoke of twelve to thirteen persons having attacked the deceased and PW23. The identification in Court was made after ten years and it was the statement of all the witnesses that the Police had shown them the accused in the Police Station. There was no Test Identification Parade [TIP] carried out and this makes it unsafe to accept the identification of the accused in Court after many years as has been held in Vijayan v. State of Kerala [1999 (1) KLT 760 (SC)]. As far as the last seen theory is concerned, the Hon'ble Supreme Court has time and again held that; it cannot be the only circumstance on which a conviction is sustained. Reliance is placed on Anjan Kumar Sarma v. State of Assam [2017 (14) SCC 359].
5. The dying declaration is on a very sticky premise, especially when there is no evidence to show that the injured was alive when he was boarded into an autorickshaw to be taken to a hospital. There is no evidence with respect to the hospital to which the deceased was taken and there is no wound certificate Crl.Appeal No.885 of 2016 7 brought in evidence. The evidence of PW4 is also to the effect that when he saw the injured, there was no movement. PWs.1, 21 & 24, who spoke of dying declaration had different versions about the statements made by the injured. PW23, who was also present when the injured was boarded into the autorickshaw and taken to the hospital, does not speak of any dying declaration. To impress upon us the strict scrutiny required of a dying declaration, the learned Counsel for the appellants relied on Surinder Kumar v. State of Haryana [2012 Crl.L.J. 1043 (SC)], Sudhakar v. State of M.P. [2012 (3) KLT SN 95 (C.No.96) SC], Waikhom Yaima Singh v. State of Manipur [2011 (2) KLT Suppl. 72 (SC)]. The driver of the autorickshaw, who took the injured to the hospital, was not examined. The fatal injury, injury No.1 as spoken of by PW29, the Doctor who conducted the postmortem, severed the arteries. The Doctor also opined that he cannot say the exact time before postmortem when the death occurred.
6. The recovery of the knife is concocted and Crl.Appeal No.885 of 2016 8 not believable. It was pointed out that PW23 who allegedly saw the incident of assault on the deceased spoke alternatively of one of the assailants having a sword and then a knife; which in any event are clearly distinguishable. The charge is also that it was A2 who used the knife, but the recovery was made by A1. There is substantial difference from the confession statement, with regard to how recovery was effected; as is seen from the recovery mahazar Ext.P3. In any event, the independent witnesses PW9 & 10 turned hostile putting the recovery to peril. Satish Kumar v. State of Himachal Pradesh [2020 (4) KLT 209 (SC)] was relied on to emphasise that when the overt act which led to the death has not been pinned on any one accused; the sole evidence of recovery cannot lead to conviction. The burden rests heavily on the prosecution to establish the link between the crime and the recovery as held in Mustkeem v. State of Rajasthan [AIR 2011 SC 2769]. There is absolutely no scientific evidence and the scene of occurrence was not Crl.Appeal No.885 of 2016 9 properly identified. There is no blood stained materials recovered from the scene of occurrence when admittedly the accused had been attacked at one spot and was seen lying injured at another. The forensic examination of the crime scene was not carried out, which is absolutely necessary as has been held in Dharam Deo Yadav v. State of U.P [2014 (2) KLT SN 36 (C.No.53) SC]. The learned Counsel also relied on Ramanlal v. State of Haryana [2015 (3) KLT SN 108 (C.No.141) SC] to urge that there can be no conviction under S.143 since there is no proof of more than 5 people involved in the crime and two alone were convicted.
7. Sri.Srijith, learned Public Prosecutor, argued that though some witnesses turned hostile, the three incidents which formed the basis of the case have been spoken by the other prosecution witness, especially PWs.1, 21 & 23 to 25. The testimony of PW23, who saw the deceased with the assailants, just before he was killed has been mentioned by PW1 in the contemporaneous FIS. The Crl.Appeal No.885 of 2016 10 very short span of time in which the deceased was killed after the absence of PW23 from the scene of occurrence fortifies the last seen theory. The two earlier incidents have been clearly established and the witnesses had seen A1 in both the incidents clearly and considering the circumstances it is only natural to think that his features and face remained etched in their minds. The last seen theory having been established, the accused should have had an explanation of how the deceased was killed, unless otherwise than by them. The learned Public Prosecutor would rely on Amit Alias Ammu v. State of Maharashtra [2003 (8) SCC 93].
8. As far as the dying declaration is concerned, there were three accounts, all of which referred to the assailant being the person involved in the earlier incident of 06.03.2004. On recanting the declaration made by the injured deceased; there is no substantial difference in the purport of such declaration, which can be safely accepted as a clinching circumstance. There is Crl.Appeal No.885 of 2016 11 no ambiguity with respect to the scene of occurrence especially when the testimony of PW23 is read, which speaks of the field, adjacent to the Railway purambokku. Though no blood stained material was recovered from the scene of occurrence, the blood stained sand was recovered from where the accused was found lying injured. The deceased after being stabbed ran away and fell down a little further in front of one Prakasan's house. The Police had thoroughly examined the scene of occurrence and forensic experts were not called for because of absence of any incriminating material. The recovery also stands established by the deposition of the Investigating Officer [IO] though the independent witnesses turned hostile. Admittedly, A1 and A2 were in a group of more than 6 people and A1 who held grudge against the victim, would have hid the knife, having obtained the same from A2. The testimonies of the prosecution witnesses regarding the earlier incidents, the motive of grudge harboured by A1 against the deceased, the threat levelled Crl.Appeal No.885 of 2016 12 by him, the last seen theory, the dying declarations and the recovery under S.27 according to the learned Public Prosecutor clearly brings forth a complete chain of circumstances without any missing link. The conviction of the two accused needs to be upheld is the concluding forceful submission.
9. PW29 is the Doctor who conducted postmortem and he marked the postmortem certificate as Ext.P37. The first injury was an incised penetrating wound on the right side of front of chest about 2 cms. above the nipple and the second one is a superficial incised wound, skin deep and obliquely placed on the back of left side of trunk. Death was opined to be caused by injury No.1 and MO1, according to the Doctor, is the weapon which possibly caused the injuries. The Doctor, in cross- examination, opined that the death was caused after six hours from the last meal. The time of death hence could not be ascertained, but the death was a homicide going by the injuries; the fatal one having entered into the chest Crl.Appeal No.885 of 2016 13 cavity, cutting the fourth rib and terminating in the lower lob of left lung, leading to its collapse. Here, we have to pertinently observe that, but for the two penetrating injuries there are no other injuries or contusions or abrasions noted on the body of the deceased; despite the case of a concerted assault on him by twelve to thirteen persons.
10. As we noticed, there were 11 accused arrayed in the case. The charge regarding the offence of unlawful assembly and attack on the victim resulting in his death spoke of the accused together having gone to the scene of occurrence and wrongfully confining the victim by encircling him. Though there were no eye-witnesses, the charge speaks of A1 & A2 having caught hold of the victim and A2 inflicting cut injury on the back of the victim and then stabbing him on the right chest; inflicting the fatal injury. It is not clear as to how the Police charged A2 with the overt act especially when there was no eye-witness to the incident of stabbing. Be that as it Crl.Appeal No.885 of 2016 14 may, we will first examine the motive as spoken of by the witnesses, which dates back to 06.03.2004.
11. In detailing the incident of 06.03.2004 the Trial Court referred to PWs.1 to 3, 11, 17, 20, 24 & 25. PWs.2, 3, 11 & 20 turned hostile. PW1 was the person who gave the FIS. In the FIS itself PW1 spoke of the deceased and himself, along with others, having objected to the immoral activities going on in the house of one Laila, situated adjacent to the field where they used to play cricket. He also spoke of two persons; one male and the other female having come to that house two weeks back when, the deceased and himself confronted them. He admitted that himself and the victim pushed the male, when, the said person ominously challenged them and asked them to verify his antecedents specifically narrating his name and threatened retaliation, after which he left. In the FIS the name of A1, as spoken of by himself was said to be 'Kunjachan Baiju' but in the testimony it was changed to 'Kochu Biju'. In the testimony before Court Crl.Appeal No.885 of 2016 15 PW1 said that while himself, the deceased, Aneesh [PW24], Animon @ Shameer and Kannan were playing cricket, two persons went to the house of Laila. When the male among them was returning, he was waylaid by the deceased and Animon. The threat levelled was narrated but the name spoken of by A1 was testified as 'Kochu Biju'. More significnt is the fact that according to PW1 the incident happened on 16.03.2004; while in the FIS he spoke of the first incident occuring two weeks back.
12. There is also another incident spoken of, on the same day, a little later, when A1 was beaten up by the deceased, upon which he caught an auto and left the place. This incident of an attack on A1 by the deceased was never spoken of in the FIS. PWs.2 & 3 were petty shop owners, who were examined to prove that the deceased attacked A1 in front of their shops. PW2 completely denied the statements made to the Police. PW3 spoke of an incident in which one young man was chased by the deceased and his friends, who were stopped by PW3 and one Crl.Appeal No.885 of 2016 16 Sujith and Shibu, upon which the person chased left in the direction of Moonnamkutti. PW3 too did not speak of any beating delivered by the deceased and failed to identify the victim of that incident, from amongst the accused.
13. PW11 examined to prove the second incident on 06.03.2004, also spoke of it as spoken of by PW3, but both of them failed to identify A1 from the array of accused. PW25 is another person who spoke of the incident as having occurred when the young man was returning from the house of Laila. However, according to him Shameer caught hold of him by the shirt and the deceased hit him then and there, when the young man challenged them and asked them to enquire about 'Kochu Biju'. His version was also that the young man walked away and abused them from front of a nearby mosque when the friends chased him and attacked him. The further testimony is of PW17, the lady who accompanied the young man on the said day which was relied on, by the trial Court. According to her, she Crl.Appeal No.885 of 2016 17 frequented the house of Laila and identified the person A3, by name, as the person who came with her to Laila's house. She testified that a group of people usually used to waylay them and extract money. According to her she had rented out a room in Laila's house and on the way back Sunil (A3) was assaulted by the group of people. She first said she did not see A3 being beaten; then in the same breath, it was deposed that she saw it. The witness was recalled, when the version was altered and she identified A1 from the box, as the person who accompanied her to Laila's house. She also admitted that she was summoned to the Police Station and the accused were shown to her. PW17, according to us, is totally unbelievable. Going by the testimonies as above, of, the incident which happened on 06.03.2004 we can safely assume that some altercation occurred on 06.03.2004 but the identity of the person who was waylaid and then attacked by the group of people is spoken of only by Pws.1, 24 & 25.
14. Now we come to the incident that occurred on Crl.Appeal No.885 of 2016 18 13.03.2004 when A1, with a group of people attempted retaliation for the humiliation on 06.03.2004, which is attempted to be proved through Pws.1, 12, 13 & 23 to 25. PWs.12 & 13 turned hostile. The learned trial Judge sought to rely on PW12 to find the incident merely on the premise that she spoke of having seen PW23 running, but without specifying as to the exact location or the date and time. The answer was given to a pointed question, whether she saw anybody running, without reference to the time or date. As far as PW1 is concerned, his testimony again was was that the second incident too occured on 16.4.2004, when they were playing cricket. They saw a group of people coming from the hilltop to the fields and somebody alerted them that there was trouble brewing and asked them to run, when he saw A1 in the group. The Prosecutor then, in chief examination itself, asked a question whether a male along with a female came for immoral purposes on 16.4.2004, which was assertively affirmed by PW1. When he was reminded that the date was Crl.Appeal No.885 of 2016 19 6.3.2004, he answered he does not remember. Again a leading question was asked whether the 2nd incident referred to was on 13.3.2004, to which he answered that it was.
15. PW23 the occular witness, to the last seen theory spoke of the incident on 13.3.2004. According to him, when they were playing cricket, 10 to 12 persons came to the spot, of whom, one was armed; when PW1 expressed an apprehension and asked them to run away. This is contrary to what PW1 deposed. In fact, PW23 did not see A1 or identify him from the group and according to him, after they ran away, it was Kannan who confirmed that he was the person who came the other day. PW24 did not see the incident on 13.03.2004 and he only said that he was informed about the same by PW25. PW25 spoke of having been informed about 10 to 13 people coming along with A1 to the cricket ground by PW1 and 23. They went to enquire about it and saw A1 standing along with 10 to 13 people, armed with a sword.
Crl.Appeal No.885 of 2016
20
16. We cannot but say that the respective
versions of the witnesses about the incident that
happened on 06.03.2004 and 13.03.2004 are inconsistent with each other. Even if we ignore the inconsistencies, we can only assume that an incident happened on 06.03.2004 when the players in the cricket ground, including the deceased, saw a male along with a female going to the house of Laila and when the male was coming back he was waylaid and threatened by the players. That the person who was waylaid, challenged them, threatened to retaliate and also gave them his name for enquiries about his antecedents, is not established. Likewise assuming that an incident occurred on 13.03.2004, we have to find that PW23 could not have identified A1 from the crowd of 10 to 13 people; he having not been a witness to the incident on 06.03.2004. A person who had earlier seen A1, on 06.03.2004, informed PW23 that the person who was in the group was the one who was involved in the accident on 06.03.2004. There is no way that PW23 identifies the Crl.Appeal No.885 of 2016 21 said person on the fatal day, since that person was not pointed out to PW23 from the group that came on 13.03.2004.
17. Now, we come to the incident on 20.3.2004 as spoken of by various people. According to PW23, he was the only person who was with the deceased when he was attacked. PW23 was at that point of time studying in the 8th standard. According to him, he along with PW1, PW24, and the deceased went to a nearby house to pluck mangoes in the evening. After eating the mangoes, the deceased took him to Kunnumpuram to have tea. They went through Kottavayal, which was the cricket ground, where they reached by about 8.30 to 9 p.m in the night. It was then, a group of 10 to 12 people attacked them. One among them who had a sword in his hand physically obstructed PW23. He corrected that the weapon was not a sword but a pen knife. The person who held him asked another, whether PW23 was present on the previous day. When the other person answered in the negative, he caught hold of the Crl.Appeal No.885 of 2016 22 deceased. The other person confirmed that the deceased was present in the earlier incident and the person who had the weapon started assaulting the deceased. Again there was a confusion as to whether the weapon was a sword or knife and on a leading question, whether it was a sword or knife, the witness answered that it was a knife. Then the deceased screamed at PW23 to gather their own people for which purpose PW23 ran away from the crime scene. Here we cannot but observe that the crime scene was never identified by PW23 to the Police. The scene mahazar prepared by the Police is of the spot where the injured was found lying, as pointed out by PW23, which was not the crime scene. This raises serious doubts about the testimony of PW23 and the theory of last seen together.
18. When PW23 returned with the others, they saw the deceased lying injured in front of Prakasan's house. He identified A2 as the person who came with a sword in the morning and with a knife in the evening; presumably Crl.Appeal No.885 of 2016 23 on 13.03.2004 morning and evening of 20.03.2004. According to PW25, the person who has wielding the sword on that day was A1 and not A2. PW23 also identified A1 as the person who came on 13.03.2004 in search of PW1; which identification we already found to be suspicious. In cross examination PW23 admitted that he does not remember whether he has spoken on, the number of persons who came on 13.03.2004 or their descriptions to the police. He also did not remember whether he had informed the police that he could identify the persons who came on 13.03.2004. More relevant is the admission of PW23 that he had been summoned to the Police Station to identify the accused more than once; specifically seven to eight times.
19. The last seen theory projected by the prosecution hence does not stand, on strict scrutiny. Except A1 and A2 all the others were acquitted. PW23 had no prior acquaintance of A1 & A2. PW23 though identified A1 and A2 in Court, we cannot but notice that the trial Crl.Appeal No.885 of 2016 24 was after 10 years. Admittedly, there was no TIP held and in Vijayan (supra), the Hon'ble Supreme Court held that it is highly unsafe to accept the identification of accused in Court, many years after the occurrence when, the TIP made shortly after the occurrence has not been accepted. In this case admittedly, no TIP was held and the accused were shown to the witnesses, in the Police Station by the police. We have to totally discard the identification of A1 and A2 by PW23 and in that circumstance, the last seen theory has no legs to stand. Anjan Kumar Sarma (supra) held that the circumstances of last seen together and absence of explanation, provide only an additional link to complete the chain of circumstances and it cannot, in the absence of proof of other circumstances, be made the sole basis of conviction. In this context we also have to notice that there is no proof of light, in the vicinity of the scene of occurrence, as has been argued by the learned Counsel for the appellant. The scene plan has not been marked and Crl.Appeal No.885 of 2016 25 and the scene mahazar Ext.P10 speaks of a street light about 90 meters away from the spot where the deceased was lying injured; not the crime scene. The Prosecution also does not offer any proof of the street light having been functional on the crucial day. Pertinent is also the fact that PW1, who heard of the assault on the deceased by a group of people, from PW23, in the contemporaneous statement, the FIS, speaks of 5 to 6 people, whereas in Court the version of the witnesses is that there were 10 to 13 people. Again the time spoken of by the witnesses vary; while PW23 said that he and deceased were confronted by the group between 8 to 9 p.m, the other witnesses deposed that they saw the deceased lying injured between 7.30 to 8 p.m.
20. The next circumstance projected by prosecution is the dying declaration. The specific case of PWs.1, 21, 23 & 24 is that they took the injured person to the Kollam District Hospital. Before we look at the testimony of the witnesses, we have to notice that Crl.Appeal No.885 of 2016 26 there is nothing proved as to the treatment administered in the District Hospital or at least the Wound Certificate issued from that Hospital evidencing the condition of the injured; whether he was brought dead or alive. According to PW1, the injured was taken to District Hospital and he died on the same night; obviously after he was brought there. PW4 who came to the spot where the injured was lying deposed that there was no movement. PW21 said the injured died 15 minutes after he reached the hospital. PW23 testified that the injured was alive in the autorickshaw. PW24 & PW25 also affirmed that the deceased was alive when he reached the hospital. There is but no documentary proof or medical evidence as to the injured being in a state to speak of the assault or identify the assailant.
21. Be that as it may, we have to look at the testimonies to consider whether the same is credible and in the context of there being three such statements, examine them for any inconsistency. According to PW1, Crl.Appeal No.885 of 2016 27 when he came to the spot with others at around 7.30 to 8 p.m, he saw the injured lying on the road side in front of Prakasan's house. The injured was bleeding and an auto driver Shaji was summoned. Himself PW24 and PW23 boarded the injured into the autorickshaw and took him to the Kollam District Hospital. He also deposed that when asked as to what happened, the injured replied that 'they were the persons who came earlier' and after that the injured did not speak anything. The driver of the autorickshaw was not examined. According to PW1, when PW23 came running to them, he was crying that Amir was being beaten by some persons, without identifying any of them. PW24's deposition is that when the injured was being taken to the hospital in the autorickshaw he said that he was stabbed by the people who came earlier. PW21 says that when he came to the spot, the injured was being carried by 3 to 4 persons. According to him he travelled with the injured in the autorickshaw. His deposition is that when the injured was asked what happened, he said that the Crl.Appeal No.885 of 2016 28 persons were regulars in the house of Laila, that there was an altercation earlier with them since they were coming for immoral activities, which was questioned resulting in the altercation. It was also the testimony of PW21 that the injured told him that these persons had assaulted and inflicted the stab injuries. PW21's evidence has to be discarded at the outset, as quite unbelievable. Even the version of PWs.1 & 24 are significantly different insofar as PW24 having spoken of the injured having specified the stab injury being inflicted by the persons who came earlier, while PW1 does not say that the injured spoke specifically of the stab; which however, he mentioned in the FIS. More significant is the fact that PW1 who travelled in the autorickshaw denies having heard any dying declaration. He has an explanation that he was sitting in front of the autorickshaw, and it was very noisy. From the attendant circumstances we are convinced that the explanation does not commend us to believe the other witnesses, especially Crl.Appeal No.885 of 2016 29 looking at the inconsistencies we pointed out from their testimonies. At the risk of repetition, we have to observe that we are further fortified in taking the said view by the circumstance of the prosecution having not proved the condition of the injured, at least when he reached the District Hospital at Kollam.
22. Waikhom Yaima Singh (supra) has held that oral dying declaration is a weak kind of evidence especially when the exact words uttered by the deceased would not be available, since often the memory of witnesses fail when they give their testimony. Surinder Kumar (supra) following the same line of thought emphasised the duty of Courts to scrutinize dying declarations carefully so as to ensure that the witnesses did not testify on the basis of tutoring, prompting or imagination. Dying declaration suffering from an infirmity and giving rise to suspicions cannot form the basis of conviction. Sudhakar (supra) was a case in which there were multiple dying declarations and when there Crl.Appeal No.885 of 2016 30 were contradictions or were at variance with each other to a large extent; it was cautioned that the test of common prudence to be employed, is to look for corroboration from other circumstances available. The Hon'ble Supreme Court while listing a few of such attendant circumstances, spoke of the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement and so on which could guide the exercise of judicial discretion by the Court. None of these are available in the present case and we are constrained to discard the circumstance additionaly for the inconsistencies noticed.
23. Now we come to the recovery of the knife, which at the outset has to be seen as another weak piece of evidence; which could only been taken as an additional link and not the sole basis of conviction. PW23 as we noticed, is not sure about the weapon weilded by the assailants of the deceased. He spoke of A2 having a sword and then a knife; alternatively. Admittedly the injury Crl.Appeal No.885 of 2016 31 was not possible by a sword and it is one inflicted by a knife. From the depth of the wound, PW29 the Doctor who conducted the postmortem had opined that there is every probability of the weapon being blood stained. The knife recovered does not have any blood stains and the independent witnesses of the recovery, PW9 & PW10, turned hostile. Ext.P3 is the recovery mahazar in which the confession statement is recorded as the knife being hidden in the shrubs ('pocha'). The recovery of the knife was made from the spot where it was buried in sand. More pertinently, according to PW23, A2 was holding the knife, but it was A1 who recovered it. The recovery of the knife fails to impress us as a circumstance pointing to the guilt of the accused.
24. As was rightly pointed out by the learned Counsel for the appellant, the conviction was entered on the basis of three circumstances, the last seen theory, the dying declaration and the recovery of the weapon used. As we found from precedents, none of these Crl.Appeal No.885 of 2016 32 circumstances can by itself, lead to a conviction and they can only be links in the chain of circumstances. We have found that none of these circumstances are effectively proved at the time of trial, contrary to the decision of the learned Sessions Judge. There are also inconsistencies with respect to the motive and the two earlier incidents spoken of. The witnesses paraded before Court are all friends of the deceased and they were playmates in the field, improvised as a cricket ground. They admit to visitors having come to a nearby residence, wherein they allege immoral activities. In fact PW24 spoke of his mother having admonished him for the incident that happened on 06.03.2004 in front of Laila's house and forced him to apologize to the woman. It is also the testimony of PW24 that the playmates in the improvised cricket ground, near the residence of Laila, often used to waylay people who go to the said house on allegations of immorality and resort to extortion. Though extortion of money was denied, it was admitted that the Crl.Appeal No.885 of 2016 33 play mates used to procure money from such persons for the purchase of balls. We are not convinced with the denial of extortion and this being the regular practise, the playmates have enemies, obviously. We find no reason to sustain the conviction of the appellant-accused and we give them the benefit of doubt.
The appeal stands allowed and the appellants shall be released forthwith if they are not wanted in any other crimes. We record with appreciation, the pains taken by the learned Counsel for the appellants, Sri.Siju Kamalasanan, in studying the case threadbare, which was reflected in his arguments; tearing to shreds the prosecution case.
Sd/-
K.VINOD CHANDRAN, JUDGE Sd/-
C.JAYACHANDRAN, JUDGE jma/sp/uu