Placing of reliance on the dying declaration.

Thangamani,J.

The appellants are accused 1 to 3 in S.C.No.45 of 1986 on the file of the learned Sessions Judge of Tirunelveli. A-2 Chelliah and A-3 Pondi are the sons of A-1 Subban. They were charged under Sec.302 read with Sec.34, I.P.C on the allegation that at about 5.30 a.m. On 12. 1985 at Kovilpatti in furtherance of their common intention they caused the death of one Subbiah by A-1 Subban cutting his hands with an aruval, A-2 Chelliah cutting above his left knee joint with an Aruval and A-3 Pondi stabbing him with a knife on his stomach.

2. The prosecution examined 14 witnesses, filed 22 Exhibits and marked 6 Material objects. Of the witnesses examined P.Ws.i to 3 turned hostile. These facts emerge from the evidence on record. Deceased Subbiah was a Sanitary worker in Kovilpatti Municipality. He was residing in Jothinagar Statin Colony. On 12. 1985 at about 5.50

a.m. he was brought to Government Hospital, Kovilpatti with bleeding injuries by his relatives. P.W.7 Doctor treated him. It was represented to the Doctor that the deceased sustained injuries with aruval by three known persons near the Housing Board Quarters at Kovilpatti at 5.30a.m. on 12. 1985. The Doctor found these injuries on him.

(1) A cut injury over medial aspect of upper arm right side close to axills 8 cm. x 4 cm. x 4 cm. with injuries to the muscle.

(2) A curved cut injury at Posterior aspect lower 2/3 of right upper arm 15 c.m.x 8c.m.x 3 c.m. with injuries to muscles.

(3) A cut injury on upper 1/3 of right forearm with injury to muscle 10 cm. x 6 cm. x 4cm.

(4) A cut injury over below and backward to right axilla 12 cm. x 6 cm. x 4 cm. with injury to muscle.

(5) A cut injury over right scapula region 8c-.m., x 4 cm. x 4 cm. with injury to muscles.

(6) A cut injury over right parietal region of scalp 4 cm. x 2 cm. x 11/2 cm.

(7) Deep cut injury over the right side of back. Lower back at join 10 cm. x 6 cm. x 6 cm. Profuse bleeding present.

(8) Lower portion of right Pinna severed obliquely.

(9) Deep cut injury left thigh dorsalty (Lower 1/3) 4 cm. above the left knee, measuring 13 cm. x 6 cm. x 8 cm. Femur exposed.

(10) A cut injury medial aspect of upper 1/3 of left leg 4 cm. x 2 cm. x 1 cm.

(11) An incised injury on right hypochondrium 3"x 1-1/2x1 cm.

(12) A cut injury medial border of left forearm joint wrist 3 cm. x 3 cm. x 2 cm.

(13) A cut injury over base of left index finger at Palmer aspect.

(14) A cut injury over left shoulder 10 cm. x 5 cm. x 5 cm.

Ex.P-8 is the relevant Wound Certificate. The Doctor rendered first aid and referred him to Government Hospital, Palayamkottab. In the opinion of the Doctor all the injuries could have been caused at the time and in the manner alleged.

3. Accordingly Subbiah was taken to Government Hospital, Palayamkottah and admitted there. At 11.45 a.m. P.W.5 Doctor working there sent Ex. P-3. Requisition to J.S.C.M. to record the dying declaration of Subbiah who was admitted in the hospital on that day. On receipt of the requisition P.W.8 J.S.C.M. visited the hospital at 1.10 p.m. and recorded Ex.P-9 dying declaration of Subbiah. P.W.5 Doctor who was present at the time of recording has given Ex.P-4 Certificate stating that The deceased was in a position to give dying declaration. In this dying declaration he has implicated the appellants as his assailants.

4. In the meanwhile, on receipt Ex.P-14 accident intimation from the Government Hospital P.W.10 Grade I Constable of Palam Police Station proceeded to the Hospital and recorded Ex.P-15 complaint from Subbiah at 10.30 a.m. on that day. She returned to her station, made a G.D. entry and sent meassage to Kovilpatti East Police Station on V.H.O. P.W.13 Sub Inspector recevied Ex.P-14 accident intimation and Ex.P-15 complaint in his station. Thereupon at 6.00 p.m. he registered the complaint in his Statin Crime No.97 of 1985 under Sec.324, I.P.C. he prepared Ex.P-l7 printed F.I.R. and took up investigation. At 6.30 p.m. he visited the same place in Ettay