STATE OF KERALA Vs. KANNAN

JUDGEMENT

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

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

(3.) The law relating to dying declaration is summarized by the Apex Court in Kendula Bala Subramanyam v. State of A. P. ( 1993 (2) SCC 684 ) as follows: