1. The appellant, Kuttan Pillai alias Kuttappan, aged 30, has been sentenced by the Additional Sessions Judge of Mavelikara to undergo rigorous imprisonment for life for murdering one Eapen alias Kunhunhu aged 49.



2. The prosecution case as gathered from the evidence of P. W.

4. the elder brother of the deceased, may be briefly stated. The accused and two or three others passed along the road in front of the house of P. W. 4 on 19-6-1959 at about 5-30 p. m. and the accused began to utter vulgar words standing exactly in front of the house where the deceased was living with his brother, P. W. 4, and family. The deceased Eapen got provoked and he stepped out. He tried to walk up to the accused to stop his abuses when the companions of the accused interfered and took him away to the south to avoid further troubles. At about 10 p. m. when P. W. 4 and his children were about to sleep, they heard loud abuses called out by somebody in front of toddy shop No. 2.3 near the deceaseds house. This time also Eapen got out and went north along the road. Immediately P, W. 4 heard his brothers cry "Ayyo, I am being killed." He and his children ran up to the place where Eapen was seen standing wounded and his injury being dressed by P. W. 1, a tapper of toddy shop No. 2

3. In reply to a question by P. W.4 as to what happened, the injured said "Parathileth Kuttappan (the accused) stabbed me." When P. W. 4 asked Eapen about the injury, he cried and said "It is insufferable. It is insufferable." The injured was removed to a better place and from there he was removed in a car. P, W. 4 says that he swooned at the sight of blood and when he regained consciousness he came to know that he was taken to his house and that his brother was removed to the hospital in a car by the persons gathered at the place.



3. P. W. 15, the Head Constable then in charge of the Panthalam Police Station, swears that he recorded correctly the statement of the injured (Ext. P. 13) at about 2.30 a. m. in the night as the first information.



4. In the nature of this case that statement has to be summarised. "At about 10 p. m. white about to sleep, he heard Parathileth Kuttan Pillai (accused) loudly calling out bad words in front of toddy shop No. 2

3. He got up and went north along the road. When he reached about 100 feet south of the shop the accused ran up to him and stabbed him on the right shoulder blade with a dagger he had in his hand. He caught the dagger with his left hand and his left palm got wounded. The accused stabbed him again twice or thrice, first on his left shoulder, then behind his left armpit and lastly on his back a little below the second injury. Then the accused ran away south with his dagger. He walked a little forward crying Kuttappan stabbed me. Thereupon P. W. 1 and P. W. 2 came running to the place and P. W. 1 bandaged his wounds. The stabbing was . witnessed by Kuttappan (P. W. 1) and Raghavan Pillai (P. W. 2). He also stated that at about dusk the accused and two or three other persons passed southwards by the road in front of his house drunk and uttering indecent words when he asked them to stop it and leave the place and he knew of no other reason why the accused should have stabbed him."



5. Though investigation was completed early enough, as the accused was absconding from 19-6-1959 the charge sheet had to be laid on 13-10-1959 without the accused. The accused was arrested on 1-12-1959 as per warrants, Exts. P. 20 and P. 21 issued from court. The preliminary enquiry was followed by the trial which ended in the accuseds conviction and sentence as mentioned above.

6. The death of Eapen admits of no doubt and is amply proved. P. W. 9, the Assistant Surgeon who issued Ext. P. 6, wound certificate has noted five injuries on Eapens body, four incised injuries on the shoulder blades, one on the right and three on the left, and another injury cutting the palmar surface of the base of the left index, middle and ring fingers. From the Panthalam Police Station Eapen was removed first to the Thumbamon Health Unit and then to the Mavelikara Hospital at about 7-30 on 20-6-1959 where he died at 7-50 a. m. P. W. 10 who conducted the autopsy and issued the post mortem certificate gives out the cause of death as shock and haemorrhage due to the injuries. Injury No. 1 in the certificate is a punctured one 11/2" x 1/2" just above the upper border of the right scapula. It had pierced into the pleural cavity and had cut the pleura and the right lung. It is described as a fatal injury by itself.

7. The accuseds plea is one of complete denial. He stated that the deceaseds brothers brother-in-law Daniel, an enemy of his, falsely implicated him in the case. He denied having absconded and explained it by saying that he was in his house from 20-6-1959 to 1-12-1959 except on certain occasions when he visited a rolled gold company in Trichur. He added that he never knew anything about the search by the Police of his houses. On 30-11-1959 he knew that he was wanted by the Police and he surrendered before them when they arrested him.

8. One special feature of this case is, that all the witnesses for the prosecution where tampered with by the influential accused and had to be cross examined by the prosecutor. Therefore, it is vhernently urged by the learned defence counsel that the accused should be acquitted as the offence is not proved. Ext. P. 13 which has become substantive evidence by the death of the declarant, corroborated by the evidence of P. W. 4 and the acceptable portion of the evidence of hostile prosecution witnesses 1 and 2 and the accuseds absconding for about six months appear to us to be sufficient to fix the guilt on the accused.



9. Ext. P. 13, statement of the deceased recorded by P. W. 15, as the first information, may be considered first. "By reason of the deponents death it becomes a piece of substantive evidence under Section 32(1) of the Evidence Act as a declaration as to the cause of the informants death or as part of the informants conduct under Section 8" Kochol v State (AIR 1956 Travancore - Cochin 207). The fact that it is recorded by the police officer as a first information does not detract from the evidentiary value of Ext. P. 13 as a dying declaration. "No particular procedure has been prescribed by any provision of law for recording a dying declaration and it is also not necessary to give any warning before a dying declaration is recorded. Even a layman is competent to record a dying declaration and prove the same in the usual manner 3ike other facts and documents" is the view expressed by a Division Bench of the Travancore - Cochin High Court in State v Ouseph (AIR 1955 Travancore - Cochin 243).



10. Ext. P. 13, dying declaration, is singularly free from all the infirmities generally attributed to dying declarations. There is nothing incorrect or false in it. The only attack the learned advocate for the accused made is that when Eapen stated that the accused ran away to the south after stabbing him, the prosecution wanted to prove that the accused ran away to the north. This seeming discrepancy can easily be explained. The accused must have tried to run away to the south first and then seeing P. W. 4 and his sons coming against him he must have retraced his steps and run to the north. This change of direction is not a mistake. In any case, there is nothing false or untrue about the dying declaration.

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1. There is also no coaching by anybody. Immediately on getting the stab the deceased was crying out in the hearing of P. Ws. 1, 2 and 4 that the accused had stabbed him. Even the hostile witnesses, P. Ws. 1 and 2, could not say that anybody else inspired the deceased at the spot to implicate the accused falsely, though they were made to say that after reaching the Panthalam Police Station P. W. 4 sent P. W. 1 to fetch his brother-in-law Daniel to the Station. This suggestion is absurd on the very face of it. P. W. 4 who was left unconscious in his house never went to the police station and could not have sent anybody to fetch Daniel. It is decidedly an afterthought. P. W. 4 was not asked anything about his sending P. W. 1 to fetch his brother-in-law. This Daniels enmity is only an imaginary one. No whisper is there as to what is the reason for Daniels alleged enmity to the accused. Though the accused mentions in a very general way that he has been falsely implicated by his enemies, this Daniel is not named specifically in the bail application. So it is crystal clear that the deceased had not the benefit of anybodys coaching to accuse the accused immediately after the occurrence.

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2. There is also a suggestion that as the deceased was suffering insufferable pain he could not have given Ext. P. 13 statement in full possession of his faculties. A reading of Ext. P. 13 statement gives the impression that Eapen was mentally alert when he gave it. According to P. W. 4 Eapen could talk and hear well and he mentioned the accuseds name quite clearly. P. W. 9, the medical officer, says that Eapen could talk and he gave him the information that he was stabbed with a dagger. P. W. 2 the hostile witness, was forced to admit that Eapen talked after receiving the injuries.

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3. Again, there is an insinuation that there was no sufficient light and the deceaseds recognition of the accused could not have been unmistakable.

The night of 19-6-1959 is admittedly a moonlit one. That there was a petromax light emitting bright light from the toddy shop is admitted even by P. W. 1 the hostile witness. That the accused and the deceased were face to face in a standing position is also clear from the nature of the injuries substained on the hand of the deceased. It is also admitted that the deceased and the accused were well known to each other being inhabitants of the same locality. There was an earlier encounter at 5.30 P. M. between them on the day of occurrence. All these circumstances go to prove that the deceaseds identification of the accused is unerring. There is no previous enmity between the accused and the deceased and as such if the deceased recognised his assailant and accused him by name immediately after the stabbing, the irresistible conclusion is there that the accused and the accused alone stabbed the deceased.

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4. The learned Sessions Judge keeping the tests mentioned in the leading case in Kushal Rao v The State of Bombay (AIR 1958 Supreme Court 22) in mind, found the dying declaration true and reliable and we find absolutely no reason to differ. We also for our part scrutinised Ext. P. 13 declaration with great care and caution and came to the conclusion that the dying declaration has passed successfully through the test of reliability and it is substantive and strong proof without any need for corroboration. Even if prudence requires corrobor-ation we have it in the evidence of P. W. 4, the acceptable portions of the evidence of the hostile witnesses 1 and 2, the doctors evidence about the injuries and the evidence of absconding. These items of evidence taken together make the dying declaration the best evidence sufficient to sustain the conviction entered by the

learned Sessions Judge.

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5. We shall now refer to the evidence of P. W.

4. As we have summarised his evidence in the statement of facts, we are only referring here to the attack the defence counsel made about his evidence. P. W. 4 in his police statement has not mentioned Eapens earlier encounter with the deceased at 5.30 P. M. on that fateful day. It is quite possible that by concentrating his attention on the stabbing and the subsequent events, this simple antecedent matter might have escaped P. W. 4s attention and nobody asked him about it. Eapen in his dying declaration has referred to it in detail and so his brothers omission to mention the minor matter admits of no adverse inference about the veracity of P. W.

4. The evidence of P. W. 4 has a naturalness about it. In fact, we could hear the ring of truth when that evidence was read out in court. His swooning at the sight of blood is not a pretence. On the whole, the evidence of P. W. 4 appears to be trustworthy and we believe him in toto. Such a man is not likely to be a party to implicate an innocent person by exculpating the real culprit. The observations made by His Lordship Bose J. in Dalip Singh v State of Punjab (AIR 1953 Supreme Court 364) may usefully be referred to in this connection.

"Ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person and hence the mere fact of relationship far from being the foundation for criticism of the evidence is often a sure guarantee of truth. No doubt the sweeping generalisation can be possible in all cases hut at the same time there cannot be any general rule of prudence to require corroboration before the evidence is believed. Each ease must be limited to and governed by its own facts."

16. In the dying declaration Ext. P. 13, two witnesses are mentioned. They are P. Ws. 1 and

2. Though they have turned hostile their evidence supports the dying declaration to a certain extent. P. W. 1 is Krishnan Kuttappan who ran up to the scene first and who helped the injured and tied up his wounds with the kaili cloth. He says he heard the cry Ayyo when he was taking his evening meals. He admits having bandaged the wounds of the deceased and accompanied him to the police station, but he turned hostile to help the accused and said that the injured could not speak and that he did not say that Kuttan Pillai stabbed him. P. W. 2 was running a tea shop about 100 feet to the north of the toddy shop. He also turned hostile and had to be cross examined by the prosecutor. He said that he heard a cry Ayyo and saw Eapen being led by four or five persons and his wounds being dressed by P. W.

1. He too accompanied the injured to the station and signed the body rnahazar but he stated that Eapen did not reply to his questions. He was cited to prove that when he questioned Eapen he said that it is Paradileth Kuttan Pillai who stabbed him but he denied that fact in court. In Ext. P. 2, his statement in the enquiry court the witness had admitted that Eapen told him that he was stabbed though he refused to say that Eapen also mentioned the accused as the person who stabbed him. It is strange that these two witnesses who had taken the trouble to accompany the injured to the police station did not care to ascertain from any one who the assailant was. In the cross examination of this hostile witness, by the defence, it was brought out by a series of suggestive questions that Daniel was sent for and it was only after he came and the Head Constable had a talk with him that Ext. P. 13 was recorded. It is clear that these two witnesses are purposely making patently untrue statements to help the accused. Though both went back on their statements that Eapen stated the name of the accused as soon as he was asked by them, P. W. 4 says that Eapen mentioned the accuseds name in the presence of these witnesses. The Head Constable has recorded Ext. P. 13 statement, and the Doctorsays that Eapen told him as to how he sustained the injuries. In Ext. P. 2, P. W. 2 admitted that Eapen told him that he was stabbed. Under these circumstances we find no difficulty to believe P. W. 4 when he swears that Eapen publicly denounced the accused as his assailant immediately after the stabbing in the hearing of P. Ws. 1 and 2 and others.



17. Now we shall refer to the evidence of absconding. An absconder can be described as one who intentionally takes himself beyond the due process of law or one who conceals oneself to escape arrest by the police. The Primary meaning of the word abscond is to hide and a person who hides even in his place of residence is said to be absconding. He must have been available at or about the time of the commission of the offence and must have ceased to be available after the occurrence. Subsequent disappearance of the accused is admissible as conduct under Section 8 of the Indian Evidence Act. In the latest Supreme Court decision reported in (1960) 2 S. C. R. 460, Anant Chintaman Lagu v The Stale of Bombay, the evidence of the accuseds conduct both prior and subsequent has been utilised to its fullest extent. However as some timid persons even if they are absolutely innocent, deliberately abscond, absconding by itself cannot be considered as proof of guilt. When there is other believable evidence to establish the prosecution case, absconding may be used as furnishing further proof of the correctness of the conclusions. Each case must be determined on its own facts and the truth or otherwise of the explanation of the accused must be the deciding factor in any case.

18. In the light of the principles enunciated above let us see how the evidence of absconding in this case can be used as a corroborative circumstance of the dying declaration. P. W, 4 saw the accused at 5-30 p. m. on the date of offence and heard him uttering obscene words standing in front of his house. That is evidence to show that the accused was available at or about the time of the commission of the offence. The police found him in hiding and not available in the locality after the commission of the offence from the next day onwards, On 21-6-1959 his house was searched and his wife has attested the search list. This flying from justice or escaping from arrest went on for four months. Then the police laid the charge sheet and applied for warrant to arrest the accused because he was absconding. Even then he continued to abscond till 1-12-1959 when he was arrested and produced in court. He applied for bail and in that application nothing is mentioned as to where he was or why he was not available in his place for about six months. His belated explanation in his section 342 statement before the Sessions Court that he was mostly at home and for some time at Trichur in a rolld-gold company is declared to be false by the learned Sessions Judge. It is incredible that the police would allow him to sleep in his house to roam about freely in the locality when they were compelled to keep this murder case pending investigation for want of the accused. This absconding for about six months has certainly to be considered against the accused when he has failed to give a reasonable explanation.

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9. It cannot be disputed that the accuseds subsequent conduct can be used as a corroborative circumstance of the dying declaration provided the evidence of absconding is reliable. We consider this absconding for about six months and that even after the charge was filed and warrants obtained from court for the accuseds arrest as an item of evidence corroborating the dying declaration.



20. Thus the conviction of the accused under Section 302 by the learned Sessions Judge is well supported by acceptable evidence and has only to be upheld. In view of the circumstances mentioned by the learned Sessions Judge for awarding the lesser penalty we feel that the sentence has also to be confirmed.

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1. In the result the conviction and sentence entered by the lower court are confirmed and the appeal is dismissed.