STATE OF KERALA Vs. HARIHARAN

JUDGEMENT

(1.) This appeal is filed by the State against the acquittal of the accused, four in number, in S.C.No.505/ 1999 on the file of the Sessions Judge, Kasaragod. The accused were charge sheeted under S.302 read with S.34 IPC. The prosecution case was summed up by the Sessions Judge as follows:

(2.) There was no eyewitness to the incident. The prosecution hence relied on the dying declarations said to have been made by the deceased to the police constables for conviction of Al to A4. Recovery of M.O. 1 and M.O.2 iron rods, on the basis of the disclosure made by Accused Nos. 1 and 2 respectively was also relied on as a corroborating piece of evidence. Accused No.3 was also sought to be connected on the ground of being last seen together with the accused. The trial court did not believe the dying declaration said to have been stated by the deceased. The recovery under S.27 of the Evidence Act was also not accepted and it was also found that the evidence that the third accused was last seen with the deceased was not within a proximate time. Prosecution was also not able to prove any motive for the offence.In an appeal against acquittal, even though the appellate court would be entitled to reappreciate the evidence, interference will not be made unless view of the court acquitting the accused is unreasonable or perverse as held by the Supreme Court in State of Punjab v. Ajaib Singh. Apex Court in Narinder Singh v. Stale of Punjab and Harijan Megha Jesha v. State of Gujarat held that if the evaluation of evidence by the trial court does not suffer from any illegality, manifest error or perversity, and the main grounds relied on for acquittal are reasonable and lawful, High Court shall not disturb the order of acquittal even if another view is possible. In G.B. Patel v. State of Maharashtra the law is summarised by a three-member Bench of the Apex Court as follows:

(3.) With regard to the dying declaration, evidence was adduced by PWs. 1 and 2 Police constables attached to the jurisdictional police station. They deposed that they were on picket post duty on that day i.e., 29-9-96 in view of the law and order problems in that locality due to rivalry between B.J.P. and CPM parties. At 10.30 p.m. on that day three pedestrians passing through that road informed them that one person was lying near the Chalingal Slope. Alongwith the above three persons PWs. 1 and 2 proceeded to the spot and found a person lying there with injuries over the head and lower limbs. An autorickshaw was called and the injured was taken, to the district. hospital by PWs. 1 and 2 along with the above three pedestrians i.e. CWs. 3, 4 and 5. On the way to the hospital, the injured revealed that he is Rajan, S/o. Krishnan and that he was brought there by A1 to A3 in an autorickshaw driven by the 4th accused and accused Nos. 1 to 3 assaulted him and left there. Since the condition of the injured was serious, PW3, the doctor of the district hospital, Kanhangad, referred him to the Medical College Hospital, Mangalapuram. Ambulance was arranged. By the time he succumbed to the injuries by 11.30 pm. PW-1 gave the F.I. Statement. In the deposition of PW-1, it was stated that the injured was taken to the hospital in an auto-rickshaw. Other than the injured, there were five persons in the auto, i.e. the two constables and CWs 3, 4 and 5. The injured was laid on the platform of the auto, four persons sat in the back and one person was seated along with the driver. There was no light in the auto and while travelling in the auto to the hospital, the dying declaration was made. It is stated as follows: Matter in other language. He also stated that when they reached the hospital, the iniured was in a serious stage: Matter in other language. PW-2 also stated in a similar way. But PW-3 doctor who issued Ext.P2 wound certificate deposed that the patient when brought to the hospital was critically ill. The alleged cause of injury was stated as stabbing by one Hariharan and Madhavan at about 10.30 p.m. on that day. The deposition is as follows: