ABDURAHIMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) TEN accused persons were tried by the Sessions Judge, tellicherry for the offences punishable under Ss 147,148, 302 and 326 I. P. C. The charge against them was that they had formed themselves into an unlawful assembly with the common object of murdering three persons Kayanhi, Anduman and assainar and in prosecution of that common object caused death of Kayanhi and anduman and also caused grievous hurt to Assainar (Pw. 4 ). Accused 1, 4 and 9 were convicted under S. 302 read with S. 149 for the murder of Kayanhi and anduman and sentenced to two terms of rigorous imprisonment for life. There is also a conviction under S. 326 read with S. 149 for causing grievous hurt to pw. 4 for which they were sentenced to undergo rigorous imprisonment for two years. The remaining accused were acquitted. Criminal Appeal 242 is by the convicted accused and 282 is by the State against the order acquitting the others.

(2.) THE deceased Anduman and Kayanhi and Assainar are direct brothers. THEy were bad characters and several complaints were filed against them by the people of the locality. Security proceedings were started against them and there was an order for their daily appearance in the Kasaragod police Station. THE three brothers were prosecuting the second accused and his people who were living in their neighbourhood. Peelings between them and the accused became strained and it is the prosecution case that on. 3112 1961 while the brothers were on their way to the police station the accused who were lying in wait for them behind a vacant shop surrounded them and beat them with iron rods and sticks. Kayanhi died on the spot within fifteen minutes and the other two who were lying injured were removed to the Kasaragod Hospital by pw. 14 the sub-Inspector who arrived at the spot on getting the information. As the condition of Anduman and pw. 4 were serious their dying declarations were recorded by the Magistrate. Anduman succumbed to his injuries at 9 in the night the same day and Assainar had to be treated in the hospital for about five months for his injuries.

(3.) HAVING discarded the evidence of all these witnesses the learned judge has convicted the appellants relying mainly on Ext. P-2 the dying declaration of Anduman seeking corroboration in the evidence of pws. 2 & 7. As the learned State Prosecutor also relied upon the self-same items of evidence to sustain the conviction and did not attempt to place any reliance on the evidence that was discarded by the learned judge we may confine ourselves to these three items. Relying upon the decision of the Supreme Court in Khushal Rao v. State of Bombay AIR. 1958 SC. 22 the learned Prosecutor asks us to uphold the conviction of the appellants on the strength of the dying declaration alone. It is clear that "once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration," but "in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity by cross-examination. " One of the important tests is to find out whether the declaration was not the result of tutoring by interested parties. This aspect was emphasised in a later decision of the Supreme Court in Tarachand v. State of Maharashtra AIR. 1962 Supreme Court 130 where their Lordships said that ". . . a dying declaration is not to be believed merely because no possible reason can be given for accusing the accused falsely. It can only be believed if there are no grounds for doubting it at all. The dying declaration in this case is subject to a very serious infirmity, in that there is every possibility of the statement having been made at the prompting and direction of Poyakkara abdulrahiman Haji who it is admitted by the prosecution and found by the judge to have played a very significant part in the shaping of the case from the very start. It is not necessary for us to go into the evidence on the matter as the findings and observations made by the learned judge speak for themselves. The sub-Inspector admits that Poyakkara Haji is a registered rowdy of the station who was an accused in a murder case and against whom security proceedings were taken. He is also seen to be a rich and powerful man in the locality. It is well established by the evidence that there is bitter enmity between Poyakkara haji on the one side and accused 2 and his relations on the other and Poyakkara haji was making consistent though futile attempts to start security proceedings against the second accused and his people. It is in evidence that Haji had made himself busy with the interference with the case from the very start. Even half an hour before pw. 3 reached the police station to give the first information, haji had sent phone message to the station saying that he was sending his people to the station with information about an occurrence and asking the police to do the needful in the matter. pw. 13 the Head Constable who recorded Ext. P-1 admits that Haji was moving about in the station premises at the time Ext. P-1 was being recorded. The Circle Inspector admits that even on the date of occurrence Poyakkara Haji was trying to rope in a son of accused 2 who is a lecturer in the Engineering College, Quilon and President Ibrahim and abdulkhader as accused in the case. He had also taken the trouble of getting mayin another son of accused 2 at Bangalore arrested on sending information through his nephew an advocate in Bangalore that Mayin had taken part in the occurrence. There is also the significant admission made by pw. 19 the Circle inspector that Poyakkara Haji was present by the side of pw. 4 and was actually talking to pw. 4 before his dying declaration was recorded at the hospital. The learned judge seems to have been so well impressed with the role played by Haji in this case that he has gone to the extent of saying that the evidence of any one who has come under the influence of Poyakkara Haji has to be viewed with great suspicion. Though there is no positive evidence that Poyakkara Haji had actually met Anduman and talked to him before his statement was recorded, there are clear indications that in all probability he must have done it. Ext. P-2 was recorded by pw. 5 at 6-20 P. M. in the hospital. Immediately after that, we find the statement of pw. 4 who was lying in the same ward being recorded. There is the unequivocal admission made by pw. 19 that Haji was present by the bed-side of pw. 4 and was found talking to him even before his dying declaration was recorded in the hospital. It is rather strange to think that poyakkara Haji who had rushed up to the hospital in time to instruct pw. 4 could have left Anduman to himself. On the other hand considering the great amount of trouble that Haji had. taken in this case to manipulate the early records so as to rope in innocent persons it is quite possible that he should have taken care to contact Anduman who was lying injured in the same ward. The learned judge thought that there was no possibility of Poyakkara Haji having been contacted before he gave the statement for the reason that Ext. P-2 statement is not on the same lines as Ext. P 4. That circumstance does not justify any such inference. It is not necessary that Poyakkara Haji should have instructed everybody concerned to make statements on the same lines and even if he had done so the injured persons may not be in a position to grasp it fully or to repeat it in all its details. There is ample evidence in the case that haji was interested in roping in as many persons as possible and that may be one reason why we come across so many inconsistent versions about the number and names of the accused. In the face of this disturbing circumstance we do not feel it safe to act upon the dying declaration much less to do so in the absence of proper corroboration. In fact the learned judge himself sought for corroboration and thought it fit to act upon the dying declaration only to the extent he found it to be corroborated by the evidence of pws. 2 and 7. In Ext. P-2 Anduman has implicated six persons of whom only four were found to have taken part.