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Judgment
Vinod Chandran, J
A common brawl in which the aggressors literally stamped out the life of the victim; albeit the death occurred after two days in the hospital. The
charge framed against the four accused was that on the victim questioning an assault committed on CW2 and CW3, the four accused with the
common intention of causing death assaulted the victim; A1 catching hold of the collar of the victim while A2 kicked him on the abdomen crying aloud
to 'kill him' and when CW1 attempted to rescue the victim, A2 threatened him and A1 to A4 attacked the abdomen and chest of the victim and later
carried him and threw him on the side of the road. CW10 who attempted to rescue him was also abused and threatened by the accused. For reason of
the severe attack on the victim, 6 to 8 ribs of the deceased were broken and internal injuries caused on the intestines resulted in the death of the victim
on 23.08.2011 at 10.45 p.m. in the Medical College Hospital (MCH), Thiruvananthapuram. Thereby the accused committed offences under Section
322, 325, 302 r/w Section 34 of the IPC.
The prosecution examined 31 witnesses and produced Exts.P1 to P48 including P37 to P40 series and marked MO1 to MO7. The defence marked
D1 to D27 contradictions and omissions from FIS of PW1 and Section 161 Statement of PWs 7,8,11&12. Learned Senior Counsel Sri. Vijayabhanu
appeared for A2, Sri.S. Rajeev for A1 and Sri.Vibhu for A3 and A4. Sri. S.U. Nazer Public Prosecutor appeared and argued for the State.
For the accused it was specifically pointed out that there were inconsistencies galore, in the evidence of the various witnesses arrayed before Court
though they were said to be eye witnesses. In fact PW1's presence was not spoken of by many other witnesses and he too did not speak of certain
others. The dying declaration made by the victim was never made to the Police or to the Doctors who examined him before his death. In fact the
victim was first taken to the Taluk Hospital, then to the District Hospital and later to the MCH. The history as recorded by the Doctors are in direct
conflict with the evidence that there was a dying declaration. The very genesis of the brawl is said to be the alleged assault on CW2 and CW3, the
staff of the bus driven by the victim, who were not examined before Court. PW4 is a cooked up witness and nobody else has seen him in the place of
occurrence. There is not even one credible witness examined by the prosecution. Further the delay in forwarding the FIRs to the Court raises a
suspicion on its registration also. The FI statement thus is one concocted by the Police on political pressure.
Sri. S U Nazer on the other hand, sought to sustain the order of the trial Court which is especially on the basis of the direct evidence of the eye
witnesses. Dying declaration under Section 32 need not necessarily be made before the Magistrate and there is no delay in registration of the FIR
despite there having occurred some delay in forwarding it to the Court. The victim was brutally kicked and stamped by the four accused which though
did not leave a visible mark of injury, resulted in his death. The assault was so brutal that it broke his ribs and seriously injured his intestines; which
injuries were the cause of death as spoken of by the Doctor.
The incident occurred on 21.08.2011 and the FIS was registered by PW1 the nephew of the deceased. The FIS is on 23.08.2011 at 8.30 hours. As
per the FIS, PW1 a Tutorial Teacher while returning home late, after preparing for the PSC exams later to his classes, saw his uncle being assaulted
by A1 to A4(named in the FIS) and three other persons identifiable on sight. They together, was found manhandling the victim with their hands and
legs. The victim having suffered serious injuries was shifted to the MCH and admitted to the ICU where he was undergoing treatment. In the FIS it
was stated that while he was approaching the junction, which is the scene of occurrence, a black Alto car overtook him, which was driven by
A3(name). When the car reached the junction it stopped and four people alighted from the car and A1 was heard crying out to the others to kill him
and a person standing on the road was assaulted and brutally manhandled. All the four together punched and kicked the victim even after he fell down
and a little later they bodily carried him and threw him on the side of the road. The accused fled in the car and on PW1 approaching the person lying
on the side of the road, realised it was his uncle. He called up one Ashokan on the phone and also Satheesan (PW8), another uncle, who was also the
brother-in-law of the victim. The deceased was first taken to the Taluk Headquarters Hospital from where he was referred to the District Hospital
and then taken to MCH on 22.08.2011. It was also stated that he was informed that the brawl arose because of an earlier incident in which certain
staff members of the bus driven by the deceased were assaulted by the four accused.
Pertinent is the fact that CW2 and CW3 who were specifically mentioned in the charge; on whom, there was an allegation of assault, was not
examined before Court. It was to question this earlier assault that the victim approached accused A1 to A4. Further if the said narration in the charge
is the prosecution case, then the accused, CW2, 3 and the victim were present in the junction; which runs contrary to the FIS. The FIS is to the effect
that while PW1 was approaching the junction, the car carrying A1 to A4 passed him and stopping at the junction; immediately the four alighted and
assaulted the victim who was standing in the junction. Further PW1 before Court stated that he attempted to intervene and save his uncle which is not
the statement in the FIS. PW1 also speaks of one Shaji Mathew (PW25) having come to the junction in a bike who attempted to help the victim, upon
which the accused threatened the said person. PW25 though admitted to his presence, according to him, he saw two persons assaulting the victim and
when the victim was asked, he feigned ignorance about the identity of the aggressors.PW25 turned hostile and did not subscribe to his statements
under Section 161. In addition to PW25, PW1 also spoke of a husband and wife (PW5 & PW6) who came there in a bike, having been abused and
threatened by one of the accused. Both the said witnesses turned completely hostile, denied their presence and even the statement given before the
Police.
PW1 further stated that he along with the staff of the bus helped his uncle to sit inside the bus and when the victim wanted to pass urine he was
again helped out. In cross-examination PW1 said that the Doctors in the Hospitals did not ask him anything about the incident in which the victim was
injured and he was unaware of what is written in the case sheet. He also categorically states that he had later told PW8, the brother-in-law of the
deceased about the assault having been perpetrated by the four accused. Pertinently he does not speak of any dying declaration made by the victim
while he was being taken to the Hospital. When admittedly PW1 and PW8 accompanied the victim, both would have heard what was spoken of by
the victim and there would be no occasion for PW1 to inform PW8 as to what transpired, that too after they reached the Hospital. The presence of
PW5, PW6 and PW25 were not spoken of by PW1 either in the FIS or in the 161 statement which omission is seen confronted to the witness in
cross-examination. Before leaving the evidence of PW1, it also has to be relevantly observed that there was no identification of the accused in the
witness box as is required in law. What is recorded by the Court is 'witness identified all the four accused'.
PW2, PW3 & PW7 were also arrayed as eye-witnesses. PW3 runs a Pan Shop at the scene of occurrence. He only speaks of an altercation
between A1 and two staff of the bus in which the victim was working. He did not depose having witnessed the occurrence. PW3 is an employee of
the Petrol Pump located at the scene of occurrence. He also turned hostile and stated that he had not witnessed the occurrence. PW7 is the Security
Guard of the ATM counter in the junction, the scene of occurrence. He deposed that though he heard the sound of an altercation, he did not bother to
verify. All the said three witnesses turned hostile.
PW4 is a Peon in a Co-operative Bank, who claims to have come to the junction to purchase medicine for another. His version of the incident does
not tally with that of PW1. He said that he saw the victim along with two employees of the bus walking towards the east, when A1 came and talked
to the three persons, after which the assault by A1 to A4 occurred. He also deposed that after the incident, when PW1 approached the victim, the
victim scolded him and threatened him. He spoke of the husband and wife [PW5 & PW6] who came in a bike, which witnesses as has been noticed
earlier, turned hostile. PW9 is another witness, PW1 has not spoken of. He also does not speak of PW1 and according to him, when he reached the
spot after the incident, he saw one Shaji, the owner of another bus, helping the victim to lie down on the front of a shop. He also speaks of having
accompanied the victim to the hospital and according to him, when he asked the victim about the incident in the car which took the victim to the
hospital, he responded that he will speak after the pain subsides.
PW8 is the brother-in-law of the victim, who speaks of the dying declaration made by the victim made to him on the way to hospital. At the risk of
repetition, we cannot but notice that none of the other witness, who is said to have accompanied the victim to the hospital, spoke of such a declaration
having been made. Further, though PW8 asserts that the incident was narrated by the victim to the Doctor, the medical report does not show the
names of the accused, where the Doctor noticed the history in the case sheet. PW8 also has a case that it was PW1 who spoke of the incident to the
Doctor, which is contrary to what PW1 stated before Court. In fact in the section 161 statement, the specific statement made by PW8 was that on the
way to Kollam, the victim told him that, about 7 to 8 persons kicked and beat him, which was marked as Ext.D8 contradiction. Ext.D9 was the
specific statement made by him to the Police that the victim told him that he will say the names later. Ext.P26 Wound Certificate of the District
Hospital shows the history having been narrated by PW8. No names are mentioned and what is recorded is assault by 8 persons. On a reading of the
evidence of PW8 and the contrary statements made about who narrated the incident to the Doctor and the contradictions marked from his statement
to the Police compel us to disbelieve the dying declaration as spoken of by PW8.
PW11 is the wife of the victim, who also spoke of a dying declaration having been made to her. Though she spoke of the dying declaration with
the specific names of A1 to A4, as told to her on 22.08.2011 in her statement to the Police, she had said that one Kozhi Rajan and son, along with 6 to
7 others, assaulted her husband as spoken of by him and that the victim does not know the name of others, which contradiction was marked as
Ext.D20. She also said that the incident was narrated to the Doctor by the victim. The evidence of PW1 regarding the dying declaration also cannot
be believed. PW12 is the son of the victim, who too spoke of a dying declaration having been made to him. His statements before the police were also
to the contrary, as is evidenced from Exts.D22 & D23. As per Ext.D22, he had stated before the Police that 6 to 7 people beat his father and felled
him and kicked him on the stomach. Ext.D23 is the statement made to the Police that after operation, only his uncle [PW8] spoke to his father.
Ext.D24 contradiction is again a statement made to the Police that one Kozhi Rajan and his son had assaulted the victim as spoken of by the victim
himself, which was the identical version of his wife and son, from which they resiled before Court to speak of a dying declaration for the first time,
naming all the four accused, which cannot be believed.
PW20 is the Doctor who attended to the deceased at the Medical College Hospital [for brevity, 'the MCH'], Thiruvananthapuram. She stated that
the victim of the assault was subjected to an emergency surgery at 3.30pm. On exploration it was revealed that there were very serious injuries
caused to the small intestine and large intestine of the patient. The cause of death was stated to be probably due to septicemia, renal failure and
respiratory failure due to blunt injuries suffered on the body. The alleged incident of assault was stated to be narrated by the patient himself. Ext.P18
is the case records of the MCH. The history is stated to be simply 'alleged assault yesterday - blunt trauma to abdomen right and complains of
abdominal pain'.
The Accident Register-cum-Wound Certificate marked as Ext.P26 was proved through PW26, the Doctor who attended to the victim at the
District Hospital. He categorically deposed that the incident was narrated by the bystander and the name of the bystander is noted in Ext.P26, which
is of PW8. The history and alleged cause of injuries as seen from Ext.P26 is an assault by 8 persons identifiable by sight on 21.08.2011 at 9.00 p.m.
This further puts at peril the dying declaration as spoken of by PW8. The Doctor who conducted postmortem was PW21. The cadaver was found to
have 21 antemortem injuries as noticed in Ext.P19 postmortem report. The cause of death is due to the blunt injury sustained on abdomen, which was
also stated to be possible on the victim being severely kicked and beaten on the stomach.
The Investigating Officers were three and are PW28, PW29 & PW30. PW28 conducted the investigation between 28.09.2011 to 16.12.2011 and
requested the statement of CW's 2&3 to be recorded under Section 164. These are the witnesses who could have spoken of the genesis of the brawl,
who were not examined by the prosecution, even though their statements were recorded before the Magistrate. PW29 prepared the scene mahazar
on 23.08.2011 and carried out investigation till PW28 took over. He is said to have arrested the accused from different locations. He took the 161
statements of CW1,CW2 & CW3.
One specific defect as pointed out by the learned Counsel for the accused is the delay in transmission of FIR to the jurisdictional Court. PW27 is
the Sub Inspector who prepared Ext.P1 FIR on the basis of the FIS by PW1. He specifically stated that the FIR was directed to be transmitted to the
Court. However, the FIR reached the Court only on 25.08.2011, as is evidenced from Ext.P27. Though the Sub Inspector of Police denied the
suggestion that the FIR was prepared only on 25.08.2011, he also stated that the FIR was delayed only because it was expected that there will be an
intimation received from the hospital, which statement he could not clarify. True the Hospitals; despite all being Government Hospitals, did not give
any intimation to the Police, which they are required to do on admission of medico-legal cases. But the delay projected here is not of registration, but
of forwarding to the jurisdictional Court. Though the Crime was registered on 23.08.2011, the FIS was not prepared and later it was filled up and
forwarded to the Court is the specific plea. PW29, who commenced investigation says in his evidence that on the death of the victim as per Ext.P13
the offence was modified as one under Section 302 on 23.08.2011, which from Ext.P31, is seen to have been received in the Court only on
29.08.2011. Hence even before the first FIR was received in the jurisdictional Court, the charge stood modified. There is no explanation offered by
the person who registered the FIR or the I.O., who modified the offence to be one under Section 302 of the IPC as to why the original FIR and the
modified charge were not immediately forwarded to the Court.
On an appreciation of the evidence led by the prosecution, we are of the opinion that nothing connects the accused to the incident of an assault on
the victim, which led to his death after two days in a Hospital. Most of the witnesses produced before Court by the prosecution as eye-witnesses,
turned hostile. The eye-witness testimony was only by PW1 & PW4. The testimony of PW1 & PW4 do not tally and that of PW5 is beset with
contradictions from that stated in the FIS and before the Police. PW4 is a chance witness whose presence is not spoken of even by PW1. The dying
declaration as spoken of by the brother-in-law, wife and son of the deceased is not supported by the other witnesses, who accompanied the victim to
the hospital. The history as to the alleged cause of injury as noticed in the District Hospital and the MCH also does not identify the aggressors, who
caused the blunt injuries to the victim. There is no cohesive evidence as to whether the history was narrated by the bystander or the patient itself.
Either way, there is no reason to believe the dying declaration as spoken of by PW8,P11 & P12 by reason of they having not stated the said fact
before the Police. In fact before the Police, they had a totally different version of 6 to 7 persons, not identified, having assaulted the victim as spoken
of by the victim to the aforesaid witnesses. The prosecution case crumbles miserably on the evidence led before Court. We are of the opinion that the
trial Court wrongly convicted the accused and we set aside the judgment of the Third Additional Sessions Judge, Kollam in Sessions Case No.589 of
2014, as also their conviction and sentence and acquit the accused; directing their release forthwith, if they are in custody and if not required in any
other case.
The appeal stands allowed leaving the parties to suffer their costs.