JOSHY Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED Nos. 2, 3 and 9 in Sessions Case No. 160 of 2000 on the file of the III Additional Sessions Court (Fast Track Court No. 1), Thrissur filed Crl. Appeal No. 803 of 2003. Fifth accused in the above case filed Crl. Appeal No. 1386 of 2003. They were convicted and sentenced to undergo imprisonment for life under section 302 read with section 149 of the Indian penal Code. According to the prosecution, on 29-3-1997 at 8. 00 p. m. at the West fort Punkunnam public road near the Gasco West Fort Shop in Ayyanthol village, accused 1 to 14, due to their previous enmity towards the deceased subramanian, formed themselves into an unlawful assembly, armed with deadly weapons like sword, knives, iron pipes, wooden sticks etc. and inflicted grievous injuries on the deceased Subramanian by means of the above weapons and caused his death and thus accused 1 to 14 committed the offence under sections 143, 147, 148 and 302 read with section 149 IPC. Before trial, accused Nos. 4, 6 and 7 died and the case against them was abated. ACCUSED Nos. 1 and 8 absconded and the case against them were split up. Only accused nos. 2, 3, 5 and 9 to 14 faced trial. The appellants, namely, accused Nos. 2, 3, 5 and 9 were found guilty. A10 to A14 were acquitted. PW1, brother of the accused, gave the first information statement (Ext. P1) at Thrissu r West Police Station at about 9-30 p. m. on the same day and Ext. P1 (a)FIR was registered. PWs2, 4 and 5 are eye witnesses. PW3 was declared hostile; but, his statement given before the magistrate was marked as Ext. P3. Apart from the evidence of eye witnesses, prosecution also relied on the dying declaration given to the brother of the deceased (PW1) and also recovery of weapons on the disclosure statement made by various accused persons to PW22 investigating officer. PW18 doctor gave first aid to the deceased on 29-3-1997 night and advised them to take the injured to another hospital. PW19 conducted postmortem. PW21 recorded ext. P1 first information statement from PW1 and registered the case and PW22 conducted the investigation.

(2.) PW1, brother of the deceased, who gave Ext. P1 first information statement deposed before the Court that he gave the above statement and identified his signature in Ext. P1. He did not see the incident. While he was returning to the house on the incident. While he was returning to the house on the evening of 29-3-1997 , he received information that his brother was stabbed and was taken to West Fort Hospital . He rushed there. He methis brother. He wept there. Injured was taken to Aswini Hospital, but, he was not admitted there. Hence, he was taken to the Heart hospital. On the way to Aswini Hospital , deceased brother told that he was stabbed by Joshy (A2) and 5 to 8 others. "malayalam&quot When they reached the Heart hospital, doctor told them that his brother already died. He identified A2. Mos 2 and 3 were identified as his dresses which were blood stained while traveling to the hospital. In cross-examination, he deposed that when they reached Heart hospital, it was 9-00 a. m. He was questioned twice by the police. He further deposed that Ext. P1 was given at about 12 o"clock on the next day of the incident. Counsel for the defence vehemently argued that Ext. P1 is given only on the next day and not on the same day night as recorded. PW21 who recorded the first information statement stated that it was recorded at 9-30 p. m. on 29th (Saturday ). A suggestion was put to pw21 whether it reached the court only on 31st March (Monday morning) and he replied that it was entrusted to the writer and the writer has forwarded the same to the court. The seal portion of the FIR is seen torn off. Therefore, we are not in a position to see the exact date of receipt of the FIR in the court. In Ext. P1 first information statement in second sentence, the word ""malayalam" (yesterday) was corrected as "malayalam" (today) with the date shown in bracket as "29". It is argued by the counsel for the accused that the first information statement was manipulated and there is delay in sending the first information report. It was finally argued that even if next day was a Sunday, the FIR could have been forwarded to the residence of the magistrate as it is the duty of the police to forward the FIR immediately on recording the same. If the story that ext. P1 was manipulated and it was given only on the next day, all the names of the accused could have been incorporated in the FIR. But, only the name of A2 is mentioned in the FIR. If first information statement was produced later, many more matters could have been incorporated and cooking up a case for prosecution by delayed FIR is not proved in this case. In this connection, we refer to the following observation of the Supreme Court in Sahdeo and others v. State of UP (AIR 2004 SC 3508) : ". . The counsel further contended that the FIR must have been concocted later after the inquest and post mortem examinations were over. It was submitted that the delay in sending the FIR to the Magistrate enabled the prosecution to cook up a false case against the appellants. We are not inclined to accept this contention for the reason that the FIR statement contains only a brief statement of events. If the FIR had been prepared later after the inquest and post mortem were over, many more matters could have been incorporated in the FIR. The absence of any further details in the FIR shows its genuineness. Here, in this case, there is no delay in lodging the f. I. R.

(3.) PW1 clearly deposed that his brother, while being taken from West Fort Hospital in the vehicle, stated that he was assaulted by a2 and five to eight others. The above dying declaration is very clear about the involvement of A2 in the case. PW18 doctor who gave first aid to the deceased at West Fort Hospital deposed that the patientwas talking and was capable of talking. Since the patient was in a very serious condition he immediately sent the patient to a better hospital and hence would certificate was not prepared. Mos 2 and 3 dress worn by PW1 was blood stained as per Ext. P33 chemical analysis report. PW1 stated that he was taking the injured brother to the hospital and we are satisfied that the statement given by the deceased was voluntary. There is no case for the accused that PW1 was entertaining any illwill towards the accused and there is nothing to disbelieve the evidence of PW1 that the deceased stated as his last words before death while going to the hospital that A2 and 5 to 8 persons assaulted him. Version of eye witnesses is fully corroborated by the same. In this connection, we refer to the decision of the apex Court in State of UP v. Ram Sagar Yadav and others (AIR 1985 SC 416) and Mathukutty v. State (2004 (8) Supreme 128) wherein Apex Court held that if dying declaration is found to be true, it can be accepted even without corroboration.