Parties : Vasu & Others Versus The State of Kerala, Represented by The Circle Inspector of Police, Perinthalmanna Police Staion, Through The Public Prosecutor, High Court of Kerala, Ernakulam.
Appearing Advocates : For the Petitioners: Babu S. Nair, Advocate. For the Respondents: P. Sareena George, Sr. Public Prosecutor.
Date of Judgment : 02-07-2026
Head Note :-
Indian Evidence Act, 1872 - Section 32 -
Comparative Citation:
2026 KER 48403,
Judgment :-
1. This appeal has been filed by accused Nos.1 to 3 in S.C.No.38/2004 on the files of the Additional Sessions Court (Adhoc-I), Manjeri, challenging the judgment, dated 28.03.2007 in the said case.
2. Heard the learned counsel for the appellants and the learned Public Prosecutor, in detail. Perused the verdict impugned and the records available.
3. In this matter, during pendency of this appeal, appellant Nos.1 and 2, who were arrayed as accused Nos.1 and 2 passed away and therefore, the conviction as against them now stands abated, even though the sentence part survives. In view of the above, as submitted by the learned counsel for the appellants and the learned Public Prosecutor, the present appeal now survives only in respect of the conviction and sentence imposed on the 3rd appellant/3rd accused, and sentence of fine imposed on appellant Nos.1 and 2/accused Nos.1 and 2.
4. The prosecution case is that, at about 8.30 p.m. on 06.03.2002, the accused persons who were four in numbers (out of which, accused No.4 died during trial of the case), with intention to commit murder of one Muhammedali, wrongfully restrained him and beat him with intention to do away him when Muhammedali refused to pay money to purchase liquor to them. Soon after the occurrence, crime was registered based on Ext.P3 FIS given by Muhammedali himself on 08.03.2002. Later on the same day, his dying declaration (Ext.P9) was recorded by the Judicial First Class Magistrate - I, Kozhikode while Muhammedali was undergoing treatment at the Medical College Hospital, Kozhikode.
5. In this case, the learned Sessions Court recorded evidence. PW1 to PW12 were examined, Exts.P1 to P15 and MO1 were marked on the side of the prosecution. Ext.D1 was marked on the side of the defence during cross examination of PW10.
6. On a meticulous analysis of evidence, the learned Sessions Judge found that accused Nos.1 to 3 committed offfences punishable under Sections 341, 323 as well as 304 of the Indian Penal Code (for short, ‘the IPC’ hereinafter) and sentenced the appellants/accused Nos.1 to 3 as under:
“In the result,
a) The accused 1 to 3 are sentenced to undergo simple imprisonment for 1 month each for the conviction under section 341 IPC;
b) The accused 1 to 3 are sentenced to undergo Rigorous Imprisonment for 1 year each for the conviction under section 323 IPC;
c) The accused 1 to 3 are sentenced to undergo Rigorous Imprisonment for 10 years each and to pay fine of Rs.10,000/- each for the conviction under section 304 IPC;
d) In case of default in payment of fine, the accused shall undergo Rigorous Imprisonment for 1 year each;
e) The substantive sentence will run concurrently.
f) The period of remand undergone, that is from 12-3- 2002 to 15-4-2002 in the case of 1st accused and from 12- 3-2002 to 12-4-2002 in the case of accused 2 and 3, the period of imprisonment undergone from the date of sentence on the earlier occasion that is from 5-3-2005 till 1-2-2007 and the period of remand from 26-3-2007 till this day (28-3-2007) are given set off. g) M.O.1 being valueless shall be destroyed after period of appeal.”
7. While challenging the verdict impugned, it is submitted by the learned counsel for the appellants that in this case, the court below mainly found commission of the above offences by the appellants/accused Nos.1 to 3 relying on Ext.P9 dying declaration, even though the eye witness to the occurrence, who got examined as PW9 turned hostile to the prosecution. It is pointed out by the learned counsel for the appellants that when the conviction is solely relying on the dying declaration, the same should be wholly reliable. Otherwise, the same would require corroboration. He has placed decision of the Apex Court in K.Ramachandra Reddy & Anr v. Public Prosecutor reported in [1976 ICO 453 : AIR 1976 SC 1994] with reference to paragraph No.6 and in the said judgment, the Apex Court considered the law regarding dying declaration which is admissible under Section 32 of the Indian Evidence Act, 1872 with reference to the earlier decision in Khushal Rao v. State of Bombay reported in [AIR 1958 SC 22]. Reliance was also placed on the decision of the Apex Court in Gopal Singh and another v. The State of Madhya Pradesh and another reported in [AIR 1972 Supreme Court 1557] with reference to paragraph Nos.7 and 8 to contend that when the dying declaration did not contain the complete names of the persons charged with the offence, even though it might be held to establish their identity, it was not of such a character as to warrant its acceptance without corroboration and, therefore, could not form the sole basis for conviction. It is pointed out by the learned counsel for the appellants that, even though in Ext.P9, the deceased had disclosed the names and fathers’ names of accused Nos.1 and 2, he had mentioned only the name of the 3rd accused without mentioning his father's name and, according to him, this omission assumes significance while considering the involvement of the 3rd accused merely on the strength of dying declaration. It is further pointed out that, in the cause title, the 3rd accused is shown as a resident of Allur House, Valamboor Amsom, Mele Poopalam. Therefore, the prime contention advanced by the learned counsel is that when Ext.P9 dying declaration alone is the sole basis for the conviction in the instant case, in the absence of adequate particulars regarding the identity of the 3rd accused in Ext.P9, the same cannot be safely relied upon, without corroboration and the conviction based thereon requires interference, enlarging benefit of doubt on the 3rd appellant/3rd accused.
8. Repelling this contention, the learned Public Prosecutor would submit that in this case, Ext.P9 alone is not the statement given by the victim and this crime itself was registered on recording the FIS given by the deceased himself, which do form part of Ext.P3 FIR. According to him, in the FIS, the victim named the accused persons as Muhammedali, Vasu, Muhammed Rafeek and Aricha Vishwan and reiterated the same in Ext.P9. Therefore, Exts.P3 and P9 are admissible in evidence and, consequently, the identity of the 3rd accused as one of the assailants is clearly established among other accused persons. Further, the identity of the other accused also established. In such circumstances, the argument advanced by the learned counsel for the appellants would not sustain and Ext.P9 dying declaration read along with Ext.P3 can safely be relied upon to find commission of the above offences by the appellants as rightly found by the trial court.
9. Adverting to the rival arguments, the points arise for consideration are;
(i) Whether the Sessions Court was right in holding that the appellants committed offence punishable under Section 341 of the IPC?
(ii) Whether the Sessions Court was right in holding that the appellants committed offence punishable under Section 323 of the IPC?
(iii) Whether the Sessions Court was right in holding that the appellants committed offence punishable under Section 304 of the IPC?
(iv) Whether the verdict would require interference?
(v) Whether the sentence imposed on the appellants would require interference?
(vi) The order to be passed?
Point Nos.(i) to (vi)
10. In this case, as argued by both sides, the occurrence was at 8.30 p.m. on 06.03.2002 and the FIS given by the deceased was recorded at 17 hrs. on 08.03.2002 while he was at Medical College Hospital, Kozhikode. Based on which, Ext.P3 FIR was registered and investigation started. In the FIS given by the deceased do form part of Ext.P3, the deceased mentioned the names of all the four accused persons, as pointed out by the learned Public Prosecutor.
11. Apart from this, the prosecution relied on Ext.P9 dying declaration. It is relevant to note that on the side of the prosecution, an eye witness to the occurrence Sri.Thankappan was examined as PW9. He was declared hostile to the prosecution as he did not support the prosecution case regarding the assault on the deceased by the accused persons. But, he fully supported the prosecution case regarding the post events after the occurrence. According to him, when he saw the victim, Muhammedali, he was in a tired condition and was asking for water. He further stated that the victim had given his phone number to PW9 so that his family could be informed of his condition. PW9, in turn, furnished the said phone number at the reception counter and requested the reception staff to intimate the victim's condition to his family members. PW9 further stated that he gave some water to the victim, which the victim drank. Thereafter, two ladies arrived in an autorickshaw, and he, along with some other persons, assisted in taking Muhammedali inside the autorickshaw. Two days after the occurrence, the police reached the place, and he had showed them the spot where Muhammedali was found sitting.
12. As far as PW10 is concerned, she is the wife of the deceased Muhammedali. She supported the prosecution case to the extent that known to her, in conformity with the prosecution case. She deposed that she had received telephonic information at about 7.00 p.m. requesting her to go to Perinthalmanna. She further deposed that then she travelled by bus to Perinthalmanna and hired an autorickshaw and proceeded to Sabreena Hotel. Therefrom, Muhammedali (deceased) was taken in an autorickshaw. According to her, Muhammedali was not immediately admitted in the hospital as the Doctors were on strike. On the next day, he was taken to the hospital and it was found that her husband was sitting so tired without having capacity to move. The victim then stated that he was assaulted by Vasu and his friends as he had refused to give them the money available in his pocket for consuming alcohol, despite their demand. The further version is that her husband died on the 7th day of the occurrence.
13. In this case, PW1 is the Doctor, who conducted postmortem of the deceased Muhammedali and he had issued Ext.P1 postmortem certificate. The Doctor noted the following injuries:
“External:- 1) lacerated wound 4x0.5 cm x skull deep on right half of top of head, Transverse, left end at midline and 9 cm. Behind the hair margin. The clot in between the edges organized and brownish black in Colour.
Internal:- 1) Brain 1200g, Oedematous, showed patchy subarachnoid haemorrhage Brownish over an area 7 x 3 cm. On top of left cerebral hemisphere And thin subarchnoidal haemorrhage brownish over an area 7x 4 on Top of right cerebral hemisphere.
2) Fracture dislocation of cervical vertebra in between C6 and C7.
CB vertebra projected interiorly over C7 with laceration and Compression of cord.”
14. PW1 deposed that the deceased succumbed to the injuries sustained to his neck and head, and Ext.P1 postmortem certificate was proved through him. Although, during cross-examination, it was suggested that external injury No.1 could have been caused by a fall, PW1 did not agree with the said suggestion. Apart from this evidence, the victim was initially examined by PW12, the Assistant Surgeon, Government Hospital, Perintalmanna on 07.03.2002 at 9.25 a.m. The doctor noticed that his both legs were paralysed, there was absence of reflexes on his lower limbs and left arm and there was tenderness on the back of his neck. Ext.P15 is the accident-cumwound certificate issued by PW12 on examining the victim. PW12 said that he found a contused lacerated wound on the vertex of the scalp. Since PW12 felt the condition of the victim was critical he was referred for expert treatment. Thus, it appears that this is a case where the victim died in consequence of the injuries extracted hereinabove as shown in Ext.P1 and as deposed by PW1 as well as PW12 supported by Ext.P15 wound certificate. It is true that, as argued by the learned counsel for the appellants, while stating the names of the persons who attacked the victim on the date of occurrence, i.e., 06.03.2002, before the learned Judicial First Class Magistrate-I, Kozhikode, the victim stated that he had been attacked by Vasu and his friends, namely, Kunnathanu Rafeeq, Muhammedali Manathu Mangalam and Aricha Vishwan. In the First Information Statement also, the deceased stated the names of the accused with certainty. Thus, it could be gathered from Ext.P9 read along with the FIS do form part of Ext.P3 FIR that accused Nos.1 to 4 were the persons who assaulted the victim, which resulted the injuries noted in Exts.P1 and P5 and the same caused his death, as stated by PW1. Ext.P3 FIR and the FIS attached thereto were tendered in evidence through PW3, who supported the same without any ambiguity. Apart from his evidence, PW8, the Judicial First Class Magistrate-I, Kozhikode, fully supported the recording of Ext.P9 and stated that Muhammedali was lying on the bed, was conscious, able to speak, and was in a fit state of mind to make the declaration. He further deposed that the Doctor had issued a certificate to the effect that the deceased was in a fit state of mind to make the declaration. Ext.P4 is the inquest report prepared in connection with the postmortem proceedings of the deceased. These documents were marked in evidence through PW4 and those were not challenged at all during cross-examination. PW4 also supported the inquest proceedings as an attesting witness to the inquest report.
15. PW11 who conducted investigation prepared Ext.P6 mahazar, which was supported by the evidence of PW6 also. PW11 had taken MO1 alleged to be used by the 1st accused and he had filed Ext.P11 report showing the incorporation of Section 323 of the IPC and he had arrested the accused after identifying them. Apart from that, he had filed Ext.P12 report in order to add Section 302 IPC instead of 307 IPC. He also stated that Ext.P14, whereby MO1 produced before the court proved the contradictions at the instance of PW9 with Ext.P10 series.
16. The crucial question is whether the Sessions Court was justified in relying upon Exts.P3 and P9, supported by the other evidence on record, to hold that the appellants had committed the offences punishable under Sections 341, 323 and 304 of the IPC.
17. As far as the acceptability of dying declaration, it is admissible under Section 32 of the Indian Evidence Act, 1872 and the law on the point is well settled as argued by the learned counsel for the appellants.
18. In the decision in Jayamma v. State of Karnataka reported in [2021 ICO 649], the Apex Court decided the evidentiary value of dying declaration and the ingredients necessary to accept the same as the sole basis of conviction. Paragraph Nos.14 and 15 of the said decision are extracted as under:
“14. Before we advert to the actual admissibility and credibility of the dying declaration (Ex.P-5), it will be beneficial to brace ourselves of the case-law on the evidentiary value of a dying declaration and the sustenance of conviction solely based thereupon. We may hasten to add that while there is huge wealth of case law, and incredible jurisprudential contribution by this Court on this subject, we are consciously referring to only a few decisions which are closer to the facts of the case in hand. We may briefly notice these judgments.
A. In P.V. Radhakrishna. v. State of Karnataka (2003) 6 SCC 443 p. 16:: 2003 ICO 831, this Court considered the residuary question whether the percentage of burns suffered is a determinative factor to affect the credibility of a dying declaration and the probability of its recording. It was held that there is no hard and fast Rule of universal application in this regard and much would depend upon the nature of the burn, part of the body affected, impact of burn on the faculties to think and other relevant factor.
B. In Chacko v. State of Kerala (2003) 1 SCC 112 p. 3, 4 :: 2002 ICO 658, this Court declined to accept the prosecution case based on the dying declaration where the deceased was about 70 years old and had suffered 80 per cent burns. It was held that it would be difficult to accept that the injures could make a detailed dying declaration after a lapse of about 8 to 9 hours of the burning, giving minute details as to the motive and the manner in which he had suffered the injuries. That was of course a case where there was no certification by the doctor regarding the mental and physical condition of the deceased to make dying declaration. Nevertheless, this Court opined that the manner in which the incident was recorded in the dying declaration created grave doubts to the genuineness of the document. The Court went on to opine that even though the doctor therein had recorded "patient conscious, talking" in the wound certificate, that fact by itself would not further the case of the prosecution as to the condition of the patient making the dying declaration, nor would the oral evidence of the doctor or the investigating officer, made before the court for the first time, in any manner improve the prosecution case.
C. In Sham Shankar Kankaria v. State of Maharashtra (2006) 13 SCC 165 p. 10, 11 :: 2006 ICO 11846, it was re-stated that the dying declaration is only a piece of untested evidence and must like any other evidence satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. Further, relying upon the decision in Paniben v. State of Gujarat (1992) 2 SCC 474 p. 18:: 1992 ICO 144 wherein this Court summed up several previous judgments governing dying declaration, the Court in Sham Shankar Kankaria (Supra) reiterated::
(i) There is neither Rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. [(1976) 3 SCC 104]);
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 :: 1985 ICO 232 and Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 :: 1983 ICO 339]);
(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 :: 1976 ICO 453]);
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 :: 1973 ICO 75]);
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P. [1981 Supp SCC 25]);
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Sec Ram Manorath v. State of U.P. [(1981) 2 SCC 654 :: 1981 ICO 68]);
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not-to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455]);
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769:: 1979 ICO 315]);
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 ICO 429]);
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 ICO 391]);
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700 :: 1982 ICO 84])
15. It goes without saying that when the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the Accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general Rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the decease admissible. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction.”
19. In the decision in State of Himachal Pradesh v. Chaman Lal reported in [2026 INSC 57 : 2026 KHC 6045], in paragraph No.16.1, the Apex Court relied on a decision of the Apex Court in Khushal Rao’s case (supra) in the year 1958 and observed that it could not be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated that dying declaration as a weak piece of evidence than other piece of evidence.
20. Reading the law settled as discussed, there is no reason to disbelieve the reason for the death of Muhammedali and the persons who attacked him which led to his death, as stated by him in Exts.P3 and P9. Therefore, Exts.P3 and P9 can be the sole basis of conviction. It is relevant to note that Ext.P9 was recorded by a competent Magistrate and the Magistrate deposed before the court fully in support of Ext.P9, as already narrated above. Be it so, it is held that the prosecution successfully proved commission of offences punishable under Sections 341, 323 and 304(I) of the IPC by the appellants/accused Nos.1 to 3 and the said finding is only to be confirmed.
21. As far the sentence imposed against the 3rd appellant/3rd accused is concerned, the Sessions Court imposed rigorous imprisonment for a period of ten years and to pay fine of Rs.10,000/- for the offence punishable under Section 304 of the IPC and in default of payment of fine, to undergo rigorous imprisonment for a period of one year.
22. Coming to the sentence, the sentence imposed against appellant Nos.1 and 2, i.e. accused Nos.1 and 2 are concerned, fine alone would survive, since substantive sentence could not be imposed against them. Thus, the sentence of fine imposed against appellant Nos.1 and 2/accused Nos.1 and 2 also is confirmed, with liberty to the prosecution to move, as per law, to recover the fine, if any, from the property left by appellant Nos.1 and 2/accused Nos.1 and 2 and inherited by the legal heirs of them.
23. In the result, the appeal is allowed in part. Further, while confirming the sentence imposed for the offences punishable under Sections 341 and 323 of the IPC, the sentence imposed against the 3rd appellant/3rd accused for the offence punishable under Section 304(I) of the IPC is reduced to seven years while maintaining the fine, as such, and reducing the default imprisonment for a period of three months. The substantive sentence imposed against the 3rd appellant/3rd accused shall run concurrently and the default sentence shall run separately. Set off is allowed.
The order suspending sentence and granting bail to the 3rd appellant/3rd accused stands cancelled and the bail bond executed by the 3rd appellant/3rd accused also stands cancelled. The 3rd appellant/3rd accused is directed to surrender before the Sessions Court, forthwith to undergo the modified sentence, failing which, the Sessions Court is directed to execute the sentence, without fail.
Registry is directed to forward a copy of this judgment to the Sessions Court, forthwith, without fail, for information and compliance.
