Kerala High Court
Kochu Biju @ Binoy vs The State Of Kerala on 8 June, 2022
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
