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Asan Tharayil Baby Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1981CriLJ1165
AppellantAsan Tharayil Baby
RespondentState of Kerala
Cases Referred and Munnu Raia v. State of M.P.
Excerpt:
.....the conviction and sentence of the appellant contending that it is auite unsafe to rely on the dying declaration and enter a conviction in this case and that the trial court committed a serious illegality in allowing the prosecution to re-examine p. on a reading of the evidence of this witness, as a whole, we are satisfied that this witness is deliberately suppressing truth with a view to help the appellant. 10. there is no legal bar for entering a conviction solely on the basis of a dying declaration if it is complete, categorical and reliable. it is now settled law that a court is entitled to convict an accused on the sole basis of a dying declaration, if it is found to be true and reliable. if a court of fact is (satisfied that the declarant was in a fit state of mind to make a..........prosecution sought to prove the case against the appellant by the direct testimony of p. w. 1. the dying declaration of the deceased person and the evidence of p. w. 4. the medical evidence and the subsequent conduct of the appellant, at the trial the solitary eyewitness p. w, 1 did not speak in terms of the first information statement laid by him. it was by relying on the dying declaration made by the deceased and the evidence of p. w. 4 and the subsequent conduct of the appellant that the trial court convicted and sentenced the appellant as aforesaid,7. the learned advocate appearing for the appellant strongly assailed the conviction and sentence of the appellant contending that it is auite unsafe to rely on the dying declaration and enter a conviction in this case and that the trial.....
Judgment:

S.K. Kadeb, J.

1. Fifty-year old Baby alias Varghese, the appellant herein, has been convicted and sentenced to imprisonment for life under Section 302 I.P.C. for the murder of Abraham, his brother-in-law (sister's husband) by stubbing him with M.O.I, dagger. The occurrence took place on the pathway running east to west leading to the river situated near the house of the appellant and was at about 8 p. m. on April 5. 1979.

2. Leela, sister of the appellant was married to Abraham, the deceased. Abraham was ill-treating Leela and making her life miserable. On account of this, the appellant was inimically disposed towards Abraham. Thomas (P.W. 4), brother of Abraham, who was residing at Otakkayam in the neighbouring District had come for a short visit to the house of his brother and was there on the date of occurrence. Some time prior to the occurrence. Skaria (P.W.I) who is residing near the house of Abraham paid a visit to the house of Abraham to meet Pw. 4 knowing that he had come there. Abraham who was there in the house, told Pw. 1 that Pw. 4 had gone out and would return only late in the night and also offered to accompany P.W. 1 to the house of Kunju where P. W. 4 had gone. Therefore, both Abraham and P. W. 1 proceeded t0 the house of Kuniu. But on reaching there they were told that P.W. 4 and Kunju had gone out to the nearby river for taking their bath. P.W. 1 and Abraham then proceeded to the river side along the pathway leading to the river. When they reached near the house of the appellant, the appellant came out of his house with a dagger and asklnff him whether he had not ill-treated and threatened to kill the appellants sister, stabbed Abraham thrice with the dagger. Seeing this P.W. 1 raised a hue and cry and some nersons residing in the neighbourhood and also P.W. 4came running. The appellant then went back to his house with the dagger. Abraham was immediately removed to the Medical College Hospital. Calicut, where, while under treatment, he died at 11.35 , on the same day. P.W. lwent t0 the Tamarassery Police Station and laid the first information statement, Ext. PI, at 11,15 a. m. on the next day which was recorded by the Sub-Inspector of Police (Pw. 10) who registered a case on that basis and on reaching the hospital, held, induest over the dead body under Ext, P11. incmest report. Assistant Professor of Forensic Medicine held autopsy over the dead body and issued Ext. P9. post-mortem certificate, Taking up investigation into the case P.W. 11 Circle Inspector of Police, inspected the place-of occurrence, prepared scene mahazar and questioned witnesses. On April 16, 1979, at 9.30 a. m., the appellant surrendered before P. W. 11 and produced M. O. 1 dagger which was taken into custody under mahazar Ext. P4.

3. The plea of the appellant was one of complete denial.

4. The death of Abraham as a result of the iniuries sustained by him on the date of occurrence is a fact not in dispute and is amply proved by the evidence of P. Ws. 8, 9 and 10 and Exts. P9 and PI 1. During autopsy, three incised iniuries, four contused abrasions and two abrasions were noticed on the dead body of Abraham and these have been described in detail as iniury Nos. 1 to 9 in Ext. P9, Injury No. 1 is an incised oblique wound 3.5 x 0.5 x muscle deep, while Nos. 8 and 9 are vertical stab wounds. Iniury No. 8 is a vertical stab wound 3 x 0.6 cm. on the front of left side of abdomen, with omentum protruding through the wound. Injury No. 9 is another vertical wound 4.5 x 2 cm. on the left flank of abdomen. Coils of small intesiine were found protruding through the wound. Small intestine was found iniured at' six sites and large intestine at two sites. According to the doctor, iniury Nos. 1, 8 and 9 could, have been caused by stabbing with a weapon like M. O. 1 and iniury Nos. 8 and 9 are sufficient in the ordinary course of nature to cause death and the injured died as a result of sustaining these injuries.

Whoever be the assailant, considering the nature of the iniuries, the vital parts chosen for the attack and the type of weapon used, there can be no doubt that he intended to cause the death of Abraham.

5. The vital point for decision in this case is whether it was the appellant who caused the iniuries on Abraham which resulted in his death.

6. The prosecution sought to prove the case against the appellant by the direct testimony of P. W. 1. the dying declaration of the deceased person and the evidence of P. W. 4. the medical evidence and the subsequent conduct of the appellant, At the trial the solitary eyewitness P. W, 1 did not speak in terms of the first information statement laid by him. It was by relying on the dying declaration made by the deceased and the evidence of P. W. 4 and the subsequent conduct of the appellant that the trial court convicted and sentenced the appellant as aforesaid,

7. The learned advocate appearing for the appellant strongly assailed the conviction and sentence of the appellant contending that it is auite unsafe to rely on the dying declaration and enter a conviction in this case and that the trial court committed a serious illegality in allowing the prosecution to re-examine P.W. 4 with reference to the statement given by him at the time of inquest.

8. The only eye-witness in the case is P. W. 1 and he turned hostile to the prosecution. On all the material particulars stated in Ext. PI he deviated at the trial and gave an entirely different version. When confronted with Ext. PI, he admitted having signed the same and that at the time of giving Ex. P l statement, he told the police all that he knew about the death of Abraham. He admitted that Abraham was found living with injuries, on the pathway near the house of the appellant. On a reading of the evidence of this witness, as a whole, we are satisfied that this witness is deliberately suppressing truth with a view to help the appellant.

9. The remaining items of evidence, we are left with are the evidence of P. W. 4, the dying declaration made by Abraham, the subsequent conduct of the appellant and the medical evidence.

10. There is no legal bar for entering a conviction solely on the basis of a dying declaration if it is complete, categorical and reliable. It is now settled law that a court is entitled to convict an accused on the sole basis of a dying declaration, if it is found to be true and reliable. A dying declaration cannot be equated with the evidence of an accomplice which requires corroboration, as a rule of prudence. It stands on the same footing as any other piece of evidence and has to be iudged in the light of the surrounding circumstances and with reference to the principles governing the weighing of evidence. In order to pass the test of reliability a dying declaration has to be subjected to the strictest scrutiny and the closest circumspection. If a court of fact is (satisfied that the declarant was in a fit state of mind to make a statement, that he had sufficient opportunity to observe and identify his assailant and that he had made the statement at the earliest opportunity without any influence or as a result of tutoring and that the dying declaration is a truthful version as to his assailant then, without insisting on corroboration and without any hesitation, a conviction can be entered on the sole basis of a dying declaration. On the other hand, if the court, after subjection the dying declaration to the test of reliability and examining the same in all its aspects, comes to the conclusion that the diving declaration is not reliable by itself and that it suffers from an infirmity, then the court has to insist on corroboration, as without corroboration such a dying declaration cannot be made the basis of a conviction. The value of a dying declaration depends upon the circumstances under which it is made. The law on this point has been clearly and authoritatively laid down by the Supreme Court in Kushal Rao v. State of Bombay : 1958CriLJ106 . The principles enunciated in the said decision have been re-affirmed and reiterated by the Supreme Court in Harbans Singh v. State of Puniab. : AIR1962SC439 . Tapinder Singh v. State of Runiab : 1970CriLJ1415 . Lallu Bhai Deo Chand Shah v. State of Gujarat : 1972CriLJ828 and Munnu Raia v. State of M.P. : 1976CriLJ1718 . 11. In the case on hand, the dying declaration of deceased Abraham is sworn to by P. W. 4. The evidence of this witness was attacked on two grounds. The main attack against the evidence of P.W. 4 is that he did not tell anything about the dying declaration to the Circle Inspector of Police (P.W. 11) and therefore his evidence cannot be relied on. It was two days after the occurrence that P. W. 11 questioned this witness for the first time and that was a further questioning. It may be noted that there is nothing in the evidence of P. W, U even to indicate that he questioned P. W. 4 in deail about the incident or about the statement of the deceased. P.W. 11 was aware of the previous statement made by this witness on 9-4-1979 to P.W. 10 and that was why P. W. 11 stated that he only further questioned this witness, In the context the further questioning by P. W. 11 must have been to elicit further materials in addition to what the witness stated to the Sub-Inspector of Police. Admittedly when questioned at the inquest P. W. 4 had stated to P. W. 10 that Abraham on seeing him declared that he was stabbed by Baby. Therefore it cannot be said that there was an omission as alleged in the statement given by this witness under Section 161. Cr.P.C. This is also not a case where the witness omitted to mention an important fact in his first statement to the police but mentioned the same only in a subsequent statement.

12. Another attack in his regard is that the Sessions Judge has committed a serious illegality in allowing P. W. 4 to be re-examined with reference to his previous statement made to P. W. 10 at the time of inquest. The contention raised on behalf of the appellant is that although P.W. 4 had stated to P.W. 10 about the dying declaration made by Abraham, he did not tell about it to P. W. 11, and therefore the statement given by P. W. 4 to P. W. 10 cannot be used to explain the omission in the statement made by the witness to P. W. 11 as there is a prohibition under the proviso to Section 162, Cr.P.C. to make use of such previous statement. According to the counsel for the appellant, the words 'statement' and 'any part thereof appearing in the proviso relate only to that particular statement given by the witness to that particular officer and not to any statement given by the witness on any different date to another officer.

13. Section 162, Cr.P.C. imposes certain restriction on the use of statement or statements made by witnesses during the course of investigation. By virtue of the proviso to this section, the statement made under the section can be used only for the limited purpose of contradicting a prosecution witness by the accused and with the permission of the court by the prosecution and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness for the purpose only of explaining any matter referred to in his cross-examination. Chapter XII of the Code of Criminal Procedure beginning with Section 154 and ending with Section 176 deals with information to the police and their Dowers to investigate. Under Section 162. the police have been given Dowers to collect evidence during investigation by questioning witnesses and recording their statements, if found to be so necessary. The 'statement' referred to in Section 162, Cr.P.C. is the statement recorded under Section 161(3), Cr.P.C. It is common knowledge that quite often, particularly, in serious and complicated cases, more than one police officer investigate into the same crime at different stages and each of these officers ex-mines the witness already examined by others. Depending upon the facts and circumstances of the case and according to the necessity, a witness may be examined durine the course of investigation more than once at different times, stages and different dates by the same Investigating Officer or different Investigating Officers. This is becauses a police officer at the commencement of the investigation may not. know how the case would develop and how even trivial things would develop into important clues in the case. After the examination of a witness, a material fact might have come to light during investigation and this will necessitate the examination of the witness over again. So ateo at the time when a witness was examined first, the Investigating Officer might haye left out some particulars as unimportant, but in the course of investigation as the case develops, those micht assume importance which would compel the Investigating Officer to further examine or re-examine the same witness. The investigating Officer might have recorded the entire statement of a witness at a stretch; but in spite of all that, the necessity of examining the witness over again might arise as the relevancy of a particular fact might have become clear to the. Investigating Officer only after the first examination of the witness. The weapon used for the commission of the offence might not have been recovered at the time when the witness was examined and therefore not available to be shown to the witness during his examination. The recovery of the weapon subsequent to the examination of the witness would necessitate the questioning of the winess a second time with reference to the weapon recovered. On such occasion, it is only for the limited purpose of showing the weapon to the witness and questioning him with reference to the weapon that he is examined and therefore it is not necessary that the Investiaating Officer at that time should record over again ail what he stated to him about the incident qxv the former occasion. The word 'statement' under Section 161. Cr.P.C. includes both oral and written statement ajjd it will also include signs and gestupes. On going through the various provisions in Chapter XII and construing the word 'statement' appearing in Sections 161 and 162, Cr.P.C. in the context in which the word appears it is clear that the word 'statement1' in Sub-section (Z} of Section 161 and Section 162. Cr. . C- means all that is stated by a witness to a police officer or officers during the course of investigation. Thus, a statement of a witness recorded under Section 161(3), Cr.P.C. whatever be their number and whatever be the date or dates on which the statement was recorded, constitutes the statement of that particular witness under Section 162 Cr.P.C. and such statement can be used under the proviso to Section 162 subiect to the limitations prescribed thereunder.

In other words, (he word 'statement' appearing in Section 161(3) and Section 162 Cr.P.C. constitutes the entirety of facts stated by a witness when he was examined on different dates by the same Investigating Officer or diffenrent Investigating Officers. Therefore the expression 'statement or any part of such statement...' appearing in Section 162 Cr.P.C. is not confined to a single statement given by a witness to a particular officer but takes in all the statements given by a witness at different stages or on different dates to different Investigating Officers or the same Investigating Officer.

14. Pw. 4. the elder brother of deceased Abraham, is residing at a place called Otakkavam in the adioining District, Pw. 4 came to the house of Abraham on the day previous to the occurrence for a short visit. It is significant in this respect to note that even the hostile witness Pw. 1 has admitted that on the date of occurrence Pw. 4 was in the house of Abraham. In the afternoon on the date of occurrence, Pw. 4 had gone to the house of one Parati Kuniu at Kakkad. On his way back from the house of Parati Kuniu Pw. 4 had a bath in the river and thereafter he came to the house of Abraham when he was told that Pw. 1 and Abraham had gone out in search of him. Pw. 4 then went out in search of Pw. 1 and Abraham. On tha way, hearing a cry from near the house of the appellant, PW. 4 rushed towards that place when he saw Abraham lying on the lap of Pw. 1 with iniuries and on Seeing Pw. 4, Abraham told him that he was stabbed by Baby his brother-in-law, that his intestines had come out and that he should be taken immediately to the hospital. Baby, the brother-in-law referred to. is none other than the appellant. At the same time, Pw. 4 also saw the appellant standing near the boundary of his property with a knife or dagger in his hand and intimidating that if anyone entered his property, he would chop off his head. It was Pw. 4 who brought a jeep and removed Abraham to the Medical College Hospital, Calcium, where he breathed his last. We have already referred to the evidence of Pw. 1 in a previous paragraph. Although 'he turned hostile to the prosecution he has admitted having filed a complaint before the police and that the signature in Ext. PI was his. Ext. PI (a) the F.I.R. registered on the basis of the statement, shows that a case has been registered against the appellant under Section 302, I.P.C. The name of Pw. 4 finds a place in Ext. PI.

15. All the iniuries sustained by Abraham are on his abdomen. This is a circumstance which indicates that Arbra-ham was attacked from his front side and the assailant was in close proximity of the victim. The medical evidence shows that Abraham was in a fit state to give a statement. It was a face to face attack at close auarters. Admittedly the incident happened on a night three days prior to Full Moon and as such Abraham had enough light and opportunity to identify his assailant. The appellant has no case that Pw. 4 has any enmity or any motive to give false evidence against him and implicate him in a case of this nature. The cross-examination of this witness did not bring out any material or circumstance sufficient to discredit or suspect his evidence. We are satisfied that the dying declaration is complete, categorical and true and the evidence of Pw. 4 is fully reliable and dependable. His evidence is also corroborated by the medical evidence and the subsequent conduct of the appellant- in surrendering before the police with the bloodstained dagger M.O.L There is no reason to disbelieve the evidence of Pw. 11 regarding the subsequent conduct of the appellant which has been corroborated by Ex. P4 and the evidence of Pw. 5 who attested the same. The Chemical Examiner detected human blood on M.O.L. There was also a motive for the appellant as could be seen from the evidence of Pw. 4. The prosecution has succeeded in proving the case against the appellant beyond any reasonable doubt.

The result is that this appeal fails and is hereby dismissed confirming the conviction and sentence passed against the appellant.


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