IMPORTANT POINTS
No evidence against the appellants in this case. Occurrence witnesses cited by the prosecution turned hostile. Alleged dying declaration made to PW1 by the deceased is not deposed to by the witness in Court. Medical and other evidence do not corroborate the prosecution version. He pointed out that PW13 Doctor who was examined to prove autopsy did not depose the injuries noted in post-mortem certificate in Court and hence his opinion lacks evidentiary value. He relied on the decision of this Court in Raju v. State of Kerala [2018 (1) KLT 565] to substantiate the said contention. Court below committed serious error in convicting the appellants. He pleaded to acquit the appellants by extending benefit of doubt.

Shaffique, J.

The appeal under consideration is preferred by appellants who are four in number. They were charged for offences under Sections 341 and 302 of the Indian Penal Code, 1860 (for short 'IPC') by the Court of Additional Sessions Judge (Adhoc – III) [Fast Track Court No. III], Palakkad and found guilty for offence under Section 302 of I.P.C. and all the accused/appellants were individually sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/-(Rupees One Lakh only) vide judgment dated 27/06/2013 in S.C. No.136 of 2010 arising out of Crime No.106 of 2008 of Malampuzha Police Station. The fine amount if realized was directed to be paid to the wife or children of the deceased with equal right over the same.

2. Prosecution case is as follows: The deceased Aruchami was the Mandalam Kunnamkadu ward President of Bharatheeya Janatha Party (for short 'BJP'). The accused/appellants were followers of Communist Party of India (Marxist) [for short 'CPI(M)]. Due to political enmity, accused nos. 1 to 4 in furtherance of their common intention to kill Aruchami, wrongfully restrained him at 08.30 p.m. on 20/07/2008 while he was conversing with PW2 and PW3 in front of the provision shop of one Krishnan bearing building no.2/29 of Maruthathodu Panchayath. The accused were armed with deadly weapons like iron pipes, sticks and concrete blocks. The 3rd accused (herein

after referred to as 'A3') exhorted (Kill the leader by beating) and on the said utterance, the 1st accused Pachappan (herein after referred to as 'A1') struck on the scalp of Aruchami with an iron pipe and the 2nd accused (herein after referred to as 'A2') beat him on his hands and legs with iron pipe and Aruchami collapsed. A3 Sukumaran struck on the abdomen of the victim with a concrete piece. The victim was taken to hospital and on 22/07/2008 at 07.45 p.m., Aruchami succumbed to his injuries while undergoing treatment in Medical College Hospital, Thrissur.

3. To prove the case, prosecution adduced oral evidence through PW1 to PW21, produced documents Exts.P1 to P23 and identified MO1 to MO6 material objects. After closure of prosecution evidence, accused were questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). Accused denied incriminating circumstances appearing against them and pleaded innocence. No evidence was adduced from their side.

4. Learned Senior counsel for the appellants Sri.P.Vijaya Bhanu submitted that there is absolutely no evidence against the appellants in this case. Occurrence witnesses cited by the prosecution turned hostile. Alleged dying declaration made to PW1 by the deceased is not deposed to by the witness in Court. Medical and other evidence do not corroborate the prosecution version. He pointed out that PW13 Doctor who was examined to prove autopsy did not depose the injuries noted in post-mortem certificate in Court and hence his opinion lacks evidentiary value. He relied on the decision of this Court in Raju v. State of Kerala [2018 (1) KLT 565] to substantiate the said contention. Court below committed serious error in convicting the appellants. He pleaded to acquit the appellants by extending benefit of doubt.

5. On the other hand, learned Senior Public Prosecutor argued that prosecution proved the case by adducing solid evidence. It is true that some of the witnesses did not support prosecution. But that by itself is not sufficient to discard other available evidence. PW1 in his Ext.P1 FIS as well as in his evidence deposed the dying declaration made by the deceased to him while the deceased was taken to hospital. It is believable. Medical evidence corroborates the oral evidence of PW1, PW9 and PW10. Court below is justified in arriving at the present conclusion and there is no need to disturb the finding. He prayed to dismiss the appeal.

6. We heard both counsels in detail and perused the evidence placed before us. Two questions are to be answered for disposing of this appeal