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2024 Supreme(Ker) 464
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. SURESH KUMAR, M.B. SNEHALATHA, JJ.
Pradeep @ Kannan S/o Balan – Appellant
Versus
State of Kerala – Respondent
Criminal Appeal Nos. 117, 127 of 2017
Decided On : 30-05-2024
Advocate Appeared:
For the Appellants : R. Anil R., B. Raman Pillai, M. Sunilkumar, Sujesh Menon V.B., T. Anil Kumar, Thomas Abraham, Thomas Sabu Vadakekut, Mahesh Bhanu S., Ressil Lonan, P. Rahim, P.A. Joseph, Padmalayan P.P.
For the Respondent: E.C. Bineesh.
IMPORTANT POINT
The burden of proof in establishing the cause of death and the circumstances of the transaction resulting in death lies with the prosecution, and the admissibility of dying declarations is subject to the conditions specified in Section 32(1) of the Evidence Act.
Headnote:
Cr.P.C. - Criminal Appeal - Section 302 IPC, Section 34 IPC - The court discussed the admissibility of dying declarations and the burden of proof in establishing the cause of death. The prosecution failed to establish the cause of death and the circumstances of the transaction resulting in death, leading to the acquittal of the accused.
Fact of the Case:
The victim sustained fatal injuries in an alleged attack by the accused. The prosecution failed to establish the cause of death and the circumstances of the transaction resulting in death.
Finding of the Court:
The court found that the prosecution failed to prove the guilt of the accused beyond a reasonable doubt due to the lack of evidence connecting the accused with the alleged crime and the failure to establish the cause of death.
Issues: The key issue was the admissibility of dying declarations and the failure of the prosecution to establish the cause of death and the circumstances of the transaction resulting in death.
Ratio Decidendi: The court held that the prosecution must establish the cause of death and the circumstances of the transaction resulting in death. The burden of proof lies with the party wishing to avail the statement as a dying declaration.
Final Decision: The accused were found not guilty for the offence punishable under Section 302 read with Section 34 of IPC and were acquitted under Section 235(1) Cr.P.C. The impugned judgment of conviction and sentence passed against the accused was set aside, and the accused were set at liberty.
JUDGMENT :
M.B. SNEHALATHA, J.
1. In these two appeals filed under Section 374(2) of the Code of Criminal Procedure [for brevity ‘Cr.P.C.’] the appellants, who are accused Nos. 1 to 3 in SC No. 1017/2013 on the file of Additional Sessions Court, Irinjalakkuda, assail the impugned judgment whereby they were convicted and sentenced to suffer imprisonment for life and fine for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code [for brevity ‘IPC’].
2. Crl. Appeal No. 127/2017 is the appeal preferred by A1 and A2. Crl. Appeal No. 117/2017 is the appeal by A3. As both these appeals arise from the very same judgment, appeals are disposed of by this common judgment.
3. Prosecution case in brief is as follows:
Victim in this case is one Jayaraj @ Rajesh @ Aliyan Rajesh. PW-18 Geetha is his wife and she is the sister of A1 Babu. There was marital discord between the victim and his wife and the victim was not looking after the affairs of his wife and children and on account of the same, A1 who is the brother of PW-18 had enmity towards the victim. Due to the said enmity, on 27.11.2011 at around 8.30 pm. while the victim along with his friends were consuming liquor in a house which was under construction situated at Nirmithi Colony at Porathissery, A1 along with A2 and A3 who are the relatives of A1 with intent to commit murder attacked the victim with chopper and caused fatal injuries. It is alleged by the prosecution that on 5.5.2012 the victim died due to the injuries sustained in the said incident. The accused thereby committed the offence under Section 302 IPC.
4. Initially, based on Ext.P1 statement of PW-1, crime was registered for the offence under Section 307 read with Section 34 IPC. Subsequently, when the injured died on 5.5.2012, Section 302 IPC was also incorporated. After investigation, the Investigating Officer filed final report before the Judicial First Class Magistrate Court, Irinjalakkuda. The learned Magistrate received the same as C.P. No. 56/2013 and after complying the legal formalities under Section 207 the Cr.P.C. the case was committed to the Court of Sessions, Thrissur and the Sessions Court, Thrissur made over the case to Additional Sessions Court, Irinjalakkuda for trial and disposal. The learned Additional Sessions Judge framed charge against the accused for the offence under Section 302 IPC r/w Section 34 of IPC. Charge was read over and explained to the accused. All the accused abjured guilt, alleged false implication and claimed to be tried.
5. To substantiate the charge levelled against the accused, prosecution examined PWs 1 to 23; marked Exts.P1 to P30. Material objects were marked as MO 1 to 18. After closing the prosecution evidence, accused were examined under Section 313 (1)(b) Cr.P.C. All the accused maintained that they are innocent and were falsely implicated. As the trial court found that it was not a fit case for acquittal under Section 232 Cr.P.C. the accused were called upon to enter on their defence and to adduce any evidence, which they might have in support thereof. But no defence evidence was adduced by the accused.
6. Based on the evidence adduced in the case, the learned Sessions Judge found accused 1 to 3 guilty for the offence punishable under Section 302 read with Section 34 IPC and by the impugned judgment dated 07.01.2017 A1 to A3 were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 75,000/- each for the offence under Section 302 IPC with default custodial sentence to undergo rigorous imprisonment for 6 months each. Out of the fine imposed, an amount of Rs. 1,50,000/- was ordered to be paid as compensation to PW-15, viz. the mother of the deceased under Section 357(1) Cr.P.C.
7. The learned Senior Counsel for the appellants assailed the impugned judgment of conviction on the ground that the prosecution has not succeeded in establishing that the death of the victim was a case of homicide and failed to establish that accus
