ARU PAIYAN ALIAS ARUMUGAM Vs. STATE

JUDGEMENT

(1.) THE facts led the accused for conviction at the hands of the I Additional Sessions Court, which has been challenged before this Court in this appeal are as follows.

(2.) NOW the point for determination in this appeal is whether the conviction and sentence imposed by the learned Sessions Judge is sustainable for the reasons stated in the memorandum of appeal? 2A. We have heard the submissions made by the learned counsel Thiru V.K.Muthusamy for the accused and Thiru. P.Kumaresan, learned Government Advocate and considered the same.

(3.) THE most important document which cuts at the root of the prosecution case is Ex.P.11 dying declaration recorded from the deceased by the Judicial Magistrate, P.W.7 on 08.08.1991 at 01.00 p.m. A reading of Ex.P.11 would go to show that when the deceased Palani was proceeding to a Petal nut Shop on 07.08.1991 at 06.00 p.m., he was attacked by A2, A1 and one Periyannan. He has further stated in the dying declaration, Ex.P.11 regarding the overt act of A2 as he had attacked him with Vegetable Cutting Knife (Aruvamanai) on the head and A1 had stabbed with a Soori Kathi on the stomach and Periyannan had attacked with pointed weapon made of tin. THE deceased has not implicated any other accused in the dying declaration. It is most astonishing to note that in this case the said Periyannan was neither referred to in the F.I.R nor arrayed in the charge sheet as an accused. P.Ws.1 and 2 have stated that the deceased Palani was attacked by A1 and A2 with Soori Kathi and A4, A5 and A6 with log but there is no reference in Ex.P.11 dying declaration that A4, A5, A6 attacked the deceased with log. So, Ex.P.11 is fatal to the case of the prosecution.