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2020 Supreme(Ker) 1021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Hariprasad,N. Anil Kumar, JJ.
Sunil and Ors. - Appellants
Vs.
State of Kerala - Respondent
Crl. Appeal No. 1194 of 2016
Decided On : 23-07-2020
For the Appellant : N.M. Madhu, P.P. Harris and C.S. Rajani, Advs.
For the Respondents: Addl. Director General and Alex M. Thombra, Senior Public Prosecutor
The judgment emphasizes the importance of establishing the admissibility and reliability of evidence, particularly oral dying declarations and recovery evidence, in criminal cases.
Headnote:
IPC - Criminal Appeal - Sections 341, 323, 302 read with Section 34 - The court discussed the admissibility of oral dying declaration and res gestae evidence, and the insufficiency of recovery evidence under Section 27 of the Evidence Act. The appellants were acquitted due to the prosecution's failure to establish their role in inflicting injuries on the deceased.
Fact of the Case:
The appellants were convicted for offences under Sections 341, 323, and 302 read with Section 34 of the IPC. The deceased intervened in a domestic dispute and was later stabbed, resulting in his death. The prosecution relied on witness statements, dying declarations, and recovery evidence.
Finding of the Court:
After reappraisal of the evidence, the court found the prosecution failed to establish the appellants' role in the offence. The appellants were acquitted due to imperfections in the prosecution evidence.
Issues: Admissibility of oral dying declaration and res gestae evidence, sufficiency of recovery evidence under Section 27 of the Evidence Act.
Ratio Decidendi: The court discussed the admissibility of oral dying declaration and res gestae evidence, and the insufficiency of recovery evidence under Section 27 of the Evidence Act.
Final Decision: The Criminal Appeal was allowed, and the appellants were acquitted of the charges.
JUDGMENT :
N. Anil Kumar, J.
1. The appellants are the 1st and 2nd accused respectively in S.C. No. 967/2013 on the file of the Additional Sessions Court, Irinjalakuda for the offences punishable under Sections 341, 323, 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as the IPC).
2. By judgment dated 26.10.2016, the learned Additional Sessions Judge convicted and sentenced the 1st accused to undergo life imprisonment and to pay a fine of Rs. 50,000/- and in default of payment of fine to undergo rigorous imprisonment for six months more for the offence under Section 302 of the IPC. For the offence under Section 323 of the IPC, the learned Sessions Judge convicted and sentenced the 1st accused to undergo simple imprisonment for one month and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for one month more. The second accused was convicted and sentenced to undergo simple imprisonment for one month and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for one month more for the offence punishable under Section 323 of the IPC. The 1st accused was acquitted for the offence under Section 341 of the IPC and the 2nd accused was acquitted for the offences under Sections 302 and 341 of the IPC.
3. Prosecution case in brief is hereinbelow:-
The 1st accused Sunil is none other than the son-in-law of the deceased Babu and the husband of PW6. The 2nd accused is the brother of the 1st accused. Right from the very beginning, the 1st accused had been regularly harassing his wife-PW6. On 06.11.2012, the 1st accused had inflicted injuries on PW6. The deceased intervened in the matter and PW6 was admitted in a hospital. While so, the deceased forcibly took elder child from the house of the 1st accused. On 07.11.2012 at 8.30 pm., the deceased again went to the house of the 1st accused and made an attempt to take away the younger child. Following this, the 1st accused in furtherance of his common intention with the 2nd accused stabbed the deceased with MO1 knife. The deceased was taken to the hospital and he succumbed to the injuries later. Hence it is alleged that accused 1 and 2 have committed the offences punishable under Sections 341, 323 and 302 read with Section 34 of the IPC.
4. Immediately after the occurrence, PW1, one of the neighbours of the accused, lodged Ext. P1 First Information Statement before PW17. He is not an eye witness to the occurrence. He testified that on the fateful day, he heard a noise from the house of the accused. According to him, on hearing the hue and cry, he along with PWs. 2 and 4 went to the crime scene and found the deceased lying in a pool of blood. He immediately tied a cloth over the injuries on the body of the deceased and took him to Modern Hospital, Kodungallur. Later, the injured was referred to Elite Hospital. The investigation was taken over by PW21. He had taken steps to conduct postmortem on the body of the deceased, obtain postmortem certificate, recover material objects and send the same for chemical examination, record the statements of witnesses, complete the investigation and file the final report.
5. On committal, the learned Sessions Judge framed charges against accused Nos. 1 and 2 for the offences punishable under Sections 341, 323 and 302 read with Section 34 of the IPC. The accused 1 and 2 pleaded not guilty.
6. During the trial, PWs. 1 to 21 were examined and marked Exts. P1 to P27 on prosecution side. MOs. 1 to 9 were marked as material objects. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of the Cr.P.C. Their defence is one of total denial. DW1 was examined on the side of the accused. Exts. D1 and D2 were also marked.
7. PWs. 1 to 4 are the neighbours of the accused. According to them, they had no occasion to see the occurrence. However, they stated that they heard the deceased screaming aloud in the crime scene and accordingly
