1. These two appeals arise from Sessions Case No. 12 of 19,54 on the file of the Kottayam Sessions Court. Ouseph Varkey alias Pappachan, who is the appellant in Criminal Appeal 70, was accused No. 1 in the case and he stood charged for commission of two oliences of murder and having abetted his co-accused, Lukka Ulahannan alias Kunju Lonan (accused 2) in causing grievous hurt with a dangerous weapon on one Chandy Devassia, P, W. 2 in the case. Accused 2, who is the appellant in Criminal Appeal 61, besides being charged with causing grievous hurt with a dangerous weapon on P.W. 2, was also charged with the abetment of the two murder. 1; with which accused 1 was charged. The learned Sessions Judge acquitted both the appellants of the charge of abetment arraigned against either, but found that both Pathroe and Mundan whom accused 1 is said to have stabbed died as a result of the injuries sustained by them at the hands of the said accused.
The learned Judge however, took the view that the offence as against either victim did not amount to murder, but only to culpable homicide not amounting to murder falling under the first part of Section 304, IPC Convicting accused 1 of two offences under that section, he has been sentenced to undergo rigorous Imprisonment for a period of seven years in each case, with the direction that the two sentences shall run consecutively. The appeal against these convictions and sentences is, as already indicated, Criminal Appeal 70. The appellant thereto will hereinafter be referred to as accused 1. The appellant in Criminal Appeal 61, who will hereinafter be referred to as accused 2, was found guilty of causing grievous hurt with, a dangerous weapon (S. 326, IPC) on I3. W. 2 and has been sentenced to undergo rigorous imprisonment for ten months. Before us Sri K. T. Thomas, Advocate represented accused 1 and Sri P. Govinda Menon, Advocate represented accused 2.
2. The facts of the case are correctly set out in paragraphs 2 and 3 of the Judgment of the lower court and those paragraphs may conveniently be quoted here :
Accused 1 and 2 had been to the Namparackal toddy shop on the evening of June 23, 1952
for a drink. Pathrose, Mundan and P.W. 2 who are Pulaya converts to Christianity, were also drinking in a different part of the toddy shop called the 'pady'. After drink, the two accused went out and stopped for a while near a madakada or shop of one Damodaran P.W. 16, within a few feet of the toddy shop. Pathrose, Mundan and P.W. 2 too went out after their drink, and when they reached the Madakada, the 1st accused abused Pathrose in vulgar language. Pathrose retorted, whereupon the 1st accused stabbed Pathrose on his chest and on his abdomen, and he fell. Mundan rushed to his rescue, when the 2nd accused called aloud to the 1st accused to stab him, whereupon the 1st accused plunged his knife into Mundan's abdomen. Mundan too fell. When P.W. 2 came forward, he was stabbed twice on the left arm by the 2nd accused. The two accused then ran northwards.
After a time, the shop contractor one Narayanan Nair alias V. G. Nair P.W. 13, arrived at the scene, and transported the injured in, a car to the Kottayam District Hospital. Pathrose and P.W. 2 were unable to talk, but Mundan was able to make a statement before the Head Constable Ramakrishna Pillai. P.W. 12, of the Kottayam Town Police Station, who arrived at the hospital. Mundan died on the same night, and Pathrose died on the next afternoon. P.W. 2 was discharged from hospital on 1-9-1952. After investigation, a charge sheet was laid against both the accused, on 21-7-1952.
3. On the evidence it is clearly established that both Pathrose and Mundan died as a result of the injuries sustained by them on the evening of 23-6-1952 and that as a result of the wounds sustained by p, W. 2, he had to remain an in-patient in the Kottayam District Hospital for not less than 74 days, unable to follow his ordinary pursuits. It is equally clear from the evidence that the attack on all the three victims was made with sharp, dangerous weapons. At the trial accused. 1 did not dispute the factum of his having had an encounter with the three victims in the case at the time and place mentioned by the prosecution. His statement was to the effect that following an altercation with Pathrose, in which Mundan, P.W. 2 and some others joined hands with Pathrose, they belaboured him and that with considerable difficulty he managed to escape from the place. No plea for complete exoneration or even amelioration of the crimes or murder levelled against him was definitely set up. The cross-examination of the occurrence witnesses, however, suggested a plea of self-defence.
Accused' 2 denied having participated in the incident, but said that when he passed along the scene of the crime he witnessed a quarrel between accused 1, the two deceased persons, P.W. 3 and others. According to him he did not wait there for long to see how the quarrel ended, but hurried home. He added that in the, night till police went to his house in search of him, that he managed to escape from there and afterwards kept out of their hands for Some time.
4. To prove the occurrence the prosecution relied upon the statement which Mundan gave to P.W. 12 at the Kottayam Hospital at 1 a.m. on 24-6-1952 and the testimony of P. Ws. 2, 6, 14, 16, 17 and 18. Of these, P.W. 18 has been disbelieved by the learned. Sessions Judge and on the other evidence he found that accused l had stabbed Pathrose twice, one on the chest and the other on the abdomen, that accused 1 also stabbed Mundan, that that stab was on the abdomen and that accused 2 inflicted two stab wounds on P.W. 2, both on his left arm. P.W. 17 arrived at the- scene after the occurrence commenced and he speaks to having seen the stabbing of Mundan by accused 1 and the stabbing of P.W. 2 by accused 2.
P.W. 2 and the other witnesses speak to the entire occurrence and their testimony corroborates fully Mundan's statement to the police. That statement, Ex, N(l), is virtually the first information about the occurrence to the police and that was recorded at the hospital at 1 a.m. (24-6-1952), soon after the injured persons were brought to the hospital. Hardly six hours had elapsed after the occurrence when P.W. 12 recorded it. Neither Pathrose nor P.W. 2 was in a position to make any statement. A letter which the Resident Medical Officer sent to the police asking them to do the needful, which was responsible for bringing P.W. 12 to the hospital, only mentioned that three persons were brought there with injuries. That letter did not disclose the commission of any offence, much less any cognisable offence.
Mundan having died, his statement became substantive evidence as his dying declaration. With reference to the acts committed by accused 1 and 2, accused 1 against Pathrose and Mundan and accused 2 against P.W. 2, the statements contained in Ex. N(l) were fully corroborated by the testimony of the witnesses referred to. If these pieces of evidence viz., Ext. N(l) and the testimony of the eye-witnesses are worthy of being acted upon, no exception can be taken to the lower courts finding as to the guilt of the two accused persons before us.
5. Among the eye-witnesses examined, the names of P. Ws. 6 and 14 find a place in Ext. N(l) and P.W. 16 is the owner of the wayside shop in front of which the occurrence took place. P.W. 6 is a friend of accused 1 and 2, he had his drink with them that day at the toddy shop immediately before the occurrence and afterwards he took part in removing the injured persons to the hospital.
learned Counsel for accused 1 confined his attention mainly to attacking the testimony of the eye-witnesses. We did not understand him as contending for the position that accused 1 was not responsible for the infliction of injuries on Pathrose and Mundan which were responsible for causing their death. It was contended that as the occurrence took place at about 8 O'clock in the night the witnesses could not have observed the details of the occurrence properly on even made out as to who really caused the injuries on the three victims. It was also stated that P.W. 6 and P.W. 14 who were in the shop or its premises could not have witnessed the occurrence which took place on the public road. Reference was made to the existence of a fairly tall screen right in front of the entrance to the shop. As for the light, the evidence is clear that at the time of the occurrence a Petromax lamp was burning in the toddy shop and that there was also a table lamp burning in the shop of P.W. 16. All the eye-witnesses say that the light from these lamps was more than ample to enable them to observe the details of the occurrence.
As for the question whether P. Ws. 6 and 16 could have seen the occurrence we need only refer to the fact that the prosecution evidence is clear that immediately after Pathrose and his companions and the two accused persons went out after they had their drinks, at the shop, noise of an altercation and the sound of beatings were heard from the road. It is only natural that those who were there would have tried to find what it was all about and to place themselves in such positions wherefrom they could see the incidents.
6. A further point raised by counsel for accused 1 was that the testimony of P. Ws. 6 and 14 particularly their depositions in the committing Magistrate's Court, showed that there was free exchange of blows between Pathrose and P.W. 2 on the one hand and accused 1 on the other. No doubt their evidence at the trial, and much more so, their evidence at the committing Magistrate's Court clearly show that besides the five stabs mentioned by the prosecution, other acts of violence also took place during the course of the occurrence. Pathrose and P.W. 2 also acted aggressively. P. Ws. 6 and 14 stated at the trial that those acts of aggression followed the stabbing of Pathrose by accused 1.
Even if that be assumed to be falsehood and that Pathrose was initially the aggressor, we cannot find any justification for accused 1 to stab Mundan. Evidence in the case clearly showing that accused 1 was responsible for causing the two injuries on Pathrose and the one injury on Mundan, if accused 1 is to be exonerated from blame, it is clearly on him to show that he had justification for inflicting those injuries, or rather that he acted in self-defence. He did not adduce any evidence and his statement does not throw any light either as to when and under what circumstances these injuries were caused. It only mentions a combined attack on him by several persons including Pathrose, Mundan and P.W. 2 and his escape from the place.
The best that could be made out on his behalf Is that there was some right of self-defence in' respect of the infliction of injuries on Pathrose, but when no lethal weapon was used and when there was no apprehension that but for his attack on his assailants they might cause his death or at least Inflict grievous hurt on him. No question of complete exoneration even in respect of the attack on Pathrose possibly arises. Much less, or practically nothing, could be said in justification or as an excuse for the attack on Mundan. In either case, a dangerous penknife was used against vulnerable parts of their bodies. On all accounts Mundan was injured while he interceded after Pathrose was stabbed.
7. In the circumstances, the approach the learned Sessions Judge made to the case and the use he made of the testimony of P. Ws. 6 and 14 in that regard are much more favourable to accused 1 than any plea of self-defence that could be trotted out from the prosecution evidence. The learned Judge construed the evidence of P. Ws, 6 and 14 particularly their depositions in the committing Magistrate's Court as indicating that accused 1 inflicted injuries on Pathrose and Mundan without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without his having taken undue advantage or acted in a cruel or unusual manner. In other words, the learned Judge applied exception 4 to Section 300, IPC to the two cases of killing committed by accused 1. Considering the grave and serious nature of the injuries Inflicted on vulnerable parts of the toodies of Pathrose and Mundan and the character of the weapon employed viz., a biggish pen-knife, the learned Judge held that both cases of killing fell under first part of Section 304, I. P. O. and accordingly convicted and sentenced accused 1.
We cannot find anything wrong in the approach the learned Judge made to the case against accused 1 or the findings recorded by him. To repeat what we said earlier this is by far the most favourable approach that could be made to the case from the point of view of accused 1 and it was clear to us from the arguments urged at the bar that his learned Counsel fully appreciated the position. The learned Judge, as stated already, brought the case within exception 4 to Section 300, IPC In this connection it may be remembered that the occurrence took place when Pathrose and his companions, as also the two accused persons, had just come out of the toddy shop after drinking. In the circumstances, we consider that the ends of justice will be sufficiently met if the two sentences passed against accused 1 are made to run concurrently. We modify the sentence against accused 1 accordingly. Subject to the above modification, Criminal Appeal 70 will stand dismissed.
8. We have next to deal with the appeal preferred by accused 2 viz., Criminal Appeal 61. The foregoing discussion and the extract from the lower court's judgment quoted earlier show that practically the same witnesses and documents as we had against accused 1 implicated accused 2 also in the commission of the crime levelled against him. Ex. N(l) makes mention of the fact that accused 2 stabbed P.W. 2. P.W. 2 himself, as also the other witnesses to the occurrence, viz., P. Ws. 6, 14, 16, 17 and 18 gave evidence to corroborate the statement in Ext. N(l). The lower court has accepted Ext. N(l) and the testimony of the victim of the alleged attack by accused 2 viz., P.W. 2 and the testimony of the other occurrence witnesses except P.W. 18 to find accused 2 guilty of the offence of causing grievous hunt with a dangerous weapon on P.W. 2. We have found that evidence to be worthy of acceptance as against accused 1, In the absence of special circumstances, it has to be held to be good as against accused 2 as well. However, his learned coun- sel, while, adopting the arguments of Mr. Thomas that the prosecution case cannot be believed, urged certain special grounds in attacking the conviction of accused 2 by the lower court.
9. The first point raised was as to the admissibility of Mundan's dying declaration in evidence with respect to the incident of the attack on P.W. 2. It was urged that if Mundan's statement that accused 2 stabbed P.W. 2 was eschewed from evidence, the remaining evidence against him was not sufficient to warrant hid conviction. The argument as to the admissibility of the saying declaration of Mundan as against accused 2 was that Under Section 32(1), Evidence Act, 1872, statements made by a deceased person were relevant only when made by him as to the cause of his death, where the cause of his death is in question, and were not relevant as regards other reasons. Counsel argued that the statement of one dead person is not a relevant fact with respect to the question about the death qf another person or with respect to the causing of hurt to a third. Though some support can be found for the view in the books we are afraid it is too narrow a view to commend itself for acceptance. The balance of judicial opinion would seem to us to be against it.
Section 32(1), Evidence Act, provides: When the cause of a person's death comes into question statements made by that person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death are relevant. In our opinion, to exclude from the evidence statements made by a deceased person as to incidents which occurred during the course of the transaction which resulted in his death, statements other than those relating to the cause of his death would be to import a limitation to the words used in the section which their natural meaning does not warrant. When a limitation like that is intended, the Legislature specially provides for it. The language of Section 27, Evidence Act, may, for instance, be compared. It is difficult to say that the statements as to the stabbing of Pathrose by accused 1, or of P.W. 2 by accused 2, are not statements made as to any of the circumstances of the transaction which resulted in Mundan's death. P.W. 2 was stabbed when he interceded to render assistance to Pathrose and Mundan who had fallen down as the result of injuries inflicted upon them by accused 1. Accused 2 stood charged with abetment of the acts of accused 1 and vice versa. Certain .observations in the Rangoon and Patna cases referred to in the sequel are helpful in this connection.
The test of relevancy of a statement Under Section 32(1) is not what the final finding in the case is but whether the cause of the death of the person making the statement 'comes into question' in the case.' 'State v. Ramprasad Singh' : AIR1953Pat354 .
10. In a very early Madras case, - 'In re P. Subbu Thevan', 2 weir 750 (B), it was held that statements made by a deceased person as to the cause of his death are admissible, not only as against the person who actually caused the deponent's death, but also against other persons concerned in the transaction which resulted in the deponent's death, in cases in which the cause of that person's death comes into question. The same argument as that raised before us regaining Mundan's statement against accused 2 was raised with reference to the deceased man's statement in that case and the argument was repelled by the learned Judges who heard the case. The appellants there stood convicted Under Section 398, IPC of having been engaged with others to the number of five or more, in conjointly committing dacoity, in the committing of which dacoity a murder was committed by one of such persons viz., the first accused in the case. The first accused was convicted, and sentenced to death and that sentence was Confirmed by the High Court.
One of the questions raised in the appeal by other convicted persons was whether the statements of the deceased man as to the participation of the appellants in the dacoity were relevant against them. The answer, as indicated, was given in the affirmative. In answering the question there Kernan and Brandt, JJ. said:
As to its (statement of the deceased person) not being admissible except as against the person who actually caused the deponent's death, we are of opinion this is not so in the case before us. The wording of Section 32 of the Indian Evidence Act is comprehensive: 'When the statement is made by a person as to the cause of his death, or as to any circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Now here one of the questions was, whether the accused, other than Pechi Muttu Thevan, could be convicted of having been concerned in committing a dacoity in the committing of which murder was caused, and we have no doubt that statements as to what was done by those concerned in the dacoity in which murder was caused, was relevant against those concerned in the dacoity.
11. The above case was followed by the Rangoon High Court in - 'Nga Hla Din v. Emperor' AIR 1936 Rang 187. There a husband and a wife were killed at one and the same place and time. Of the two accused persons one was the servant of the other. The husband was killed by the master and the wife by the servant. The only evidence in the case was the dying declaration of the wife, who besides stating that the servant attacked her (as a result of which she died) the master killed the husband. The question arose whether the wife's statement was admissible against the master, who killed the husband. Accepting the dying declaration against both the accused persons, the trial court had convicted each of them of murder and sentenced both of them to death. The contention as to the admissibility of the statement against the master was negatived by the High Court and the convictions for the murders and the death sentences were confirmed. The learned Judges held that statements by a deceased person as to the cause of his death are admissible, not only as against the person who caused the death Of the deponent, but also against other persons concerned in the transaction which resulted in the deponent's death, in cases in which the cause of that person's death comes in. This is adopting the words of the decision in 2 Weir 750 (B).
12. In - 'Pakala Narayana Swami v. Emperor' AIR 1939 PC 47 (D), Lord Atkin has explained the meaning of the phrase 'circumstances ofl the transaction.' Among other things His Lordship said 'the conditions of the admissibility of the evidence is that 'the cause of (the declarant's) death' comes into question'. The Patna decision in AIR 1953 Pat 354 (A), where Das, J. explains the phrase 'any of the circumstances of the transaction which resulted in his death' may also be usefully referred to in this context. The relevant discussion is in paragraph 10 of the judgment at page 357 of the reports.
13. On principle and authority we cannot therefore accept the contention that Ext. N(l) is inadmissible in evidence as against accused 2. A division bench of the Allahabad High Court has construed the section in the way contended for by learned Counsel for accused 2. See - 'Kumwarpal Singh v. .Emperor' AIR 1948 AH 170 (E). In paragraph 14 of the judgment (page 172) after setting out the purport of Section 32(1) without any discussion it is said:
It follows that the statement of one dead person is not a relevant fact with respect to the-question of the death of another person.
In the next paragraph it is said the deponent had no direct knowledge of the act of the other person who died and that the statement about that person's death was the result of the deponent's honest belief based on certain inferences. With respect, we cannot accept 'ipse dixit' contained in paragraph 14 of the judgment in that case.
14. We have said that Ex. N(l) was made before hardly 6 hours had expired after the occurrence. Among other things it speaks of' accused 2 having stabbed P.W. 2 and also mentions that P. Ws. 6 and 14 had witnessed the occurrence. In discussing the case against accused 1 we have found their evidence generally acceptable and we see no reason to take a different view when they implicate accused 2 in that day's occurrence. It was pointed out that in their statements Under Section 164, Criminal P. C.,, they had mentioned that accused 2 stabbed P.W. 2 thrice while as a matter of fact he had sustained only two injuries. Ex. P, the mahazar which P.W. 12 prepared regarding the injuries on the person of P.W. 2 refers to a wound on. the abdomen besides the two wounds on the-left arm. That was a mistake.
The argument was that in giving their statements Under Section 164, the witnesses were tutored to speak in conformity with Ex. P. That no doubt is a possibility; it may as well be that a third blow did not hit P.W. 2. The fact that the wound certificate which had come into the possession of the police long before the witnesses made their statements indicate that the argument as to tutoring has not much force. Whatever that be, that accused 2 gave two stabs to P.W. 2 is borne out by the wound certificate-and the evidence of the victim himself. The other eye-witnesses corroborate it. Assuming they tried to improve their evidence with a view to fall into line with the wound mahazar by adding a third stab, that by itself is no good reason to discard their entire testimony as against accused 2. So much of their evidence as is corroborated by other direct evidence or circumstances can be acted upon and that is what the lower court did. We have shown that Ext. N(l) mentions accused 2 as having stabbed P.W. 2. P.W. 2 and P.W. 17 speak about it and the wound certificate supports that evidence.
15. A further argument urged on behalf of accused 2 was that P.W. 2 did not know him before the occurrence and that no great reliance can, therefore, be placed on his identification of accused 2 as his assailant long afterwards in court. P.W. 2 says that the first blow on his left arm was inflicted from behind and that when he turned round he saw accused 2 and he inflicted another wound with a Malapuram knife. P. Ws. 6, 14 and 16 were well acquainted with accused 2 long before the occurrence and there is no reason to think any mistake as to the identity of the person who inflicted injuries on P.W. 2 has been made in the case. The statement of accused 2 was that he was an innocent spectator to a part of the occurrence which resulted in the death of Pathrose and Mundan and he also added that that very night he had become a man 'wanted' by the police in connection With the incident.
16. In our view, there is no reason to interfere with the lower Court's conviction of accused 2. The sentence passed against him in a case where the victim was an inpatient in the hospital for 74 days, unable to follow his ordinary pursuits, is only rigorous imprisonment for 10 months. Punishment prescribed for the offence (S. 326, IPC) extends to transportation for life or rigorous imprisonment for a period of 10 years. In the circumstances we do not think that any interference is called for with respect to the sentence either. Criminal Appeal 61 will also stand dismissed.
17. Accused 1 and accused 2 will surrender to their bail bonds within one week to undergo the sentence, failing which this Court will, cause them to be arrested. Order accordingly.