Judgment

K. JAYACHANDRA REDDY, J. This is an appeal under Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 read with Section 379 CrPC. The three appellants herein, original accused 1 to 3, were tried for offences punishable under Sections 449 and 302 read with Section 34 IPC and they were acquitted by the trial court. On an appeal filed by the State, a Division Bench of the High Court set aside the order of acquittal and convicted them under Section 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life. However, no separate sentence was awarded for the offence punishable under Section 449 read with Section 34 IPC. Hence the present appeal. The prosecution case is as follows :

2. The deceased, one Jose, the accused and the material witnesses PWs 3 and 5 belong to Kothamangalam. There was enmity between the accused and the deceased because of some land disputes. On 10-1-1981 the deceased along with PWs 3 and 5 and others were playing cards in the Knights Club room situated in the upstair portion of the Kothamangalam Municipal Shopping Centre. After 9 p.m. they stopped playing the cards and PWs 3 and 5 went out of the room and came to the verandah. Subsequently Jose also came out of the room and after entering the verandah when he was proceeding towards the staircase for coming down, A-l who was standing on the verandah near the wall assaulted Jose with choppers cutting on his leg and when the deceased Jose turned to enter the Club room, A-3 also assaulted and cut Jose from behind. The deceased entered the room and tried to close the door along with PW 5 but the door was pushed open and the accused after entering the room attacked Jose and inflicted injuries all over his body. Seeing the attack PW 3 ran towards another room and contacted the police by phone. Immediately, PW 28, the Sub-Inspector of Police, along with the police party came and found the deceased lying in front of the Bavas room with many grievous injuries and was bleeding profusely. Immediately the deceased was taken to the Government Hospital in a taxi of PW 7. PW 21, a doctor, and his colleagues attended on the deceased but finding his condition critical, PW 21 recorded his dying declaration Ex. P-13. Ex. P-12 is the wound certificate prepared by him. PW 21 also sent intimation to the police. PW 28 came to the hospital and recorded another dying declaration Ex. P-22 at about 9.15 p.m. The deceased died immediately thereafter. An entry was made to this effect and on the basis of dying declarations, the FIR was issued. PW 29, the Circle Inspector, held the inquest. PW 22, another doctor, conducted the post-mortem and he found as many as 39 incised and penetrating wounds. On internal examination he found that pericardium was injured and lungs were congested. He opined that the death was due to cumulative effect of all the injuries and they were sufficient in the ordinary course of nature to cause death. Ex P-17 is the post-mortem certificate. PW 29 took up the investigation but he was transferred and PW 28 carried on the investigation. The accused surrendered before the Magistrate and subsequently they were granted bail. After completion of the investigation, the charge-sheet was laid and the case was committed to the Court of Sessions. The prosecution examined PWs 1 to 26. When examined under Section 313 CrPC the accused denied the offence.

3. The prosecution relied on the two dying declarations Ex. P-13 and Ex. P-22 and mainly on the evidence of PWs 3 and 5 who witnessed the occurrence. The trial court having examined Ex. P-13 and Ex. P-22 held that many other persons in the locality bear the same names as mentioned in these dying declarations and there was difference in the names given in Ex. P-13 and Ex. P-22 and in view of the medical evidence it is highly doubtful whether the deceased would have been in a position to make the dying declarations and therefore the dying declarations can