Judgment :- 1. The accused in Sessions Case No. 36/1980 before Sessions Court, Thodupuzha, is the appellant. An elderly couple Mani (70) and Anna (65), who had settled in the High Ranges were killed, and their son the appellant Devassia (a) Kutty (42) was charged with the murder. "The trial court convicted him under S.302 IPC. on two counts and sentenced him to undergo imprisonment for life on both counts. The conviction and sentence are challenged in the appeal. 2. The deceased couple who had four sons and three daughters were living alone by themselves at Poriyathu house in Vellilamkandom kara of Ayyappancovil village about 12 kilometers away from Kattappana police station. Their sons Joseph (Pw.12) and George (Pw. 5) had their separate residences in the same locality, while the other two sons Kunjukunju and Kutty had been living at Thidanadu in Kottayam. The occurrence happened during night on November 10, 1979, inside the room where the deceased were sleeping. Anna died on the spot, while Mani removed to the hospital died at 6.15 P.M. the next day. The post-mortem examination revealed that they died as a result of the multiple injuries caused with a cutting instrument like chopper. The crime was registered against the appellant for offence under S.302 and 307 IPC. on 11-11-1979 on recording Ext. P1 statement of Pw.1 Sivaraman Nair at 8 A. M. at the Kattappana police station. In the course of the investigation M.O.2 chopper was recovered under Ext. P6. The case was charge-sheeted for offence under S.302 IPC. 3. The prosecution case briefly stated is this: The appellant had ill-feeling towards his parents on account of his dissatisfaction over the settlement of properties. The deceased agreed to sell the property at Thidanadu to Pw. 6 under an agreement dated 3-11-1979 turning down the offer of the appellant to purchase the same. Anna had also declined to execute a registered, document in favour of the appellant in respect of the property given to him. The appellant was frustrated and this according to the prosecution furnished the motive for the crime. The prosecution case is that the appellant came to the house where the aged parents lived, on the night of 10-11-1979 and at midnight made the murderous assault on both the deceased using M.O.2 chopper. Mani was awakened by the screaming of his wife and he saw the appellant cutting her with the chopper. The prosecution case is that the appellant came to the house where the aged parents lived, on the night of 10-11-1979 and at midnight made the murderous assault on both the deceased using M.O.2 chopper. Mani was awakened by the screaming of his wife and he saw the appellant cutting her with the chopper. The appellant then struck him with the same weapon and retreated when Mani dropped on the bed. Pws. 1, 2 and 3 are the immediate neighbours who reside within a range of 70 to 120 meters from the house of the deceased. At about 6.30 A. M. Pw.1 who used to milk the cow came to this house. He noticed the injured and was told by Mani what happened. Pws. 2, 3, 4 and 5 immediately reached the place on being alerted. In the presence of these persons also Mani had made statements implicating the appellant. 4. The prosecution in the absence of any eye-witness to the occurrence relied on the dying declarations said to have been made by Mani, in the presence of pws.1 to 5 and later before Pw. 21 the Assistant Sub Inspector; and also on the subsequent conduct of the appellant as well as the motive, to establish the charge. Though pws. 2 and 5 had to be treated hostile, Pws. 1, 3 and 4 supported the prosecution. The appellant pleading innocent said that he was falsely implicated at the instance of his brother Pw. 12. The learned sessions judge mainly on the basis of the dying declaration of Mani found the appellant guilty and recorded the conviction. 5. The appellant in challenging the conviction and sentence has urged that there is no evidence to warrant the conviction; the so-called dying declaration of deceased Mani is not genuine or acceptable and the evidence is highly artificial. It is said that there is no circumstance inconsistant with the innocence of the appellant and the conviction is therefore wrong. The main contention advanced on behalf of the appellant is that the deceased Mani as a result of the injuries sustained was physically incapable of making any statement; his faculties of speech were so impaired that he could not have made any dying declaration and that the medical evidence has not been properly appreciated by the trial court in determining the genuineness of the oral declaration and the veracity of the prosecution evidence. It was also maintained that the motive alleged is so feeble and the conduct of the appellant only consistent with his innocence, that these are not circumstances pointing to the guilt of the appellant. 6. The learned Public Prosecutor maintained that the dying declaration is satisfactorily proved by cogent evidence, the same is genuine and truthful and could properly form the basis for conviction and the appeal is therefore devoid of any merit. 7. The material point that falls for consideration in the appeal is whether there is sufficient evidence to sustain the conviction. The Supreme Court has stated in Kashmira Singh v. State of Madhya Pradesh (AIR. 1952 SC. 159) that where the murder committed is a particularly cruel and revolting one, it is necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime might induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. There is no eye-witness to the occurrence in this case. The incident happened during night when the only inmates in the house were the deceased. The evidence of Pw. 14 and the post-mortem certificate Ext. P 10 disclose that Anna had as many as 12 cut injuries on her person. Pw. 13 who conducted the postmortem on the dead body of Mani had issued Ext. P9. The evidence is that Mani had as many as 25 injuries which could be caused with a chopper. It appears that the unfortunate victims had been mercilessly attacked with a lethal weapon, in their bed-room under cover of darkness. The main evidence which the prosecution relies on is the dying declaration said to have been made by Mani implicating the appellant. There is no other evidence either direct or circumstantial that the appellant was in the Poriyathu house on the date of the occurrence either before or after the incident, or that he was seen in the vicinity that day. 8. The prosecution supports the case on the oral declaration said to have been made by deceased Mani after day-break before he was admitted in the hospital. The dying declaration of the injured Mani was not recorded by a competent Magistrate. Pw. 21 after registering the crime is said to have interrogated Mani while he was about to be removed from the Kattappana hospital, and recorded the statement. The dying declaration of the injured Mani was not recorded by a competent Magistrate. Pw. 21 after registering the crime is said to have interrogated Mani while he was about to be removed from the Kattappana hospital, and recorded the statement. The dying declaration said to have been made by Mani is seen incorporated in his own words in Ext. P1, the first information statement, and Ext. P17 the statement recorded by Pw. 21. Pw. 14 the doctor who gave Mani first-aid had not certified that Mani was conscious and fit to give a statement. Pw. 14 had given evidence before court that when he saw the patient in the morning on 11-11-1979 he was not talking, he was semi-conscious and was suffering from a certain degree of shock. Pw. 14 added that he tried his maximum to see that the patient talked and when he tried so, only some air came out of the mouth and he could not speak. Ext. P9 the post-mortem certificate and the evidence of Pw. 13 show that Mani had in all sustained 25 injuries of which 11 were above the shoulder. There had been two injuries on the neck described as number 10 and 11 with the external carotid arteries cut. 11 cm. long bone deep incised wound on the face had extended upto the angle of the mouth with the underlying bone and the soft tissues sharply cut; the cartilage of the nose was cut; the jaw bone was sharply cut into two pieces and the maxilla was also cut. Pw. 14 had testified to the fact that he referred Mani to the Medical College Hospital mainly because the mandible was cut into two pieces and expert treatment was necessary. In the opinion of Pw. 14 without the help of mandible, it is not possible for a person to speak Pw. 14 said: "Mandible is connected to the maxilla by massetes muscles. If only the contract is intact, the movement of the mandible will be possible." To the question: "If the mandible is cut into two pieces, will not the contact be loosened?" Pw. 14 answered: "The separated part of the mandible will be pulled upwards by the massetes and the mandible will not act properly. Unless the mandible acts, a person will not be able to talk." Pw. 14 answered: "The separated part of the mandible will be pulled upwards by the massetes and the mandible will not act properly. Unless the mandible acts, a person will not be able to talk." Pw. 14 added: "If the person whose mandible is cut into two pieces, has numerous other injuries on the face, it will further impair the ability to talk If the cartilage of the nose is completely cut, the phonation will change; the person will not then be able to pronounce certain syllables. If spoken without teeth, the phonation will change. If the mandible is cut into two pieces, and the maxilla is cut and the cartilage of the nose is completely cut and if the person has no teeth, he will not be able to talk at all." 9. As a result of the injuries sustained, Mani who had no teeth, was deprived of the capacity to move the mandible which was sharply cut, into two pieces, he was lying unattended with bleeding injuries for several hours before Pw.1 saw him at about 6.30 A.M. and it is very doubtful whether he could have made any dying declaration at all. The prosecution case, however, is that soon after Pw.1 reached the place of occurrence in the early morning. Mani told him what transpired implicating the appellant and he repeated the story each time when pws. 2, 3, 4 and 5 reached there. According to Pws.1 and 3, the words of Mani were clear, coherent and unambiguous and he spoke normally and repeated the narration several times. Pw. 2 however said that Mani could not speak and he did not make any statement. Pw. 4 was positive that Mani could speak clearly and he had told the details of the incident. Pw. 5 however said that Mani was weak and he had been making gestures. Pws.2 and 5 had been treated hostile by the prosecution. Significantly, Pw.5. also said that the information conveyed by Pw.1 to him was that his parents had been attacked by some unknown person. By a leading question in chief-examination, Pw. 5 had been made to state that Pw.1 had disclosed about the involvement of the appellant. 10. The dying declaration as spoken to by these witnesses suffers from all the infirmities of human memory and human character The statement as given by Pw.1 is so worded as to excite suspicion. By a leading question in chief-examination, Pw. 5 had been made to state that Pw.1 had disclosed about the involvement of the appellant. 10. The dying declaration as spoken to by these witnesses suffers from all the infirmities of human memory and human character The statement as given by Pw.1 is so worded as to excite suspicion. Significantly, the arrival of Pw. 5 the son of the deceased near the injured at the scene is postponed until after the arrival of Pws.1 to 4 the neighbours. According to Pw. 1, Mani wanted himself and Anna to be removed to the hospital. If Mani was able to speak he would have instinctively asked Pw.1 to inform his sons who had been residing in the neighbourhood and Pw. 5 would have been the first person to reach there. The possibility of the old man, having identified his assailant also rests on the existence of a burning lamp inside the room and the chance of utterances by the assailant. The text of the declaration as put by the prosecution thus presents suspicious features. In the light of the medical evidence, it is difficult to accept the said oral declaration as genuine. The Supreme Court in Bhagawati Das v. The State of Rajasthan (1957 SC. Reports 854) rejecting the evidence relating to two dying declarations made after the deceased had received injuries and before he reached hospital observed that ordinarily a dying declaration of this style by itself is insufficient for sustaining the conviction on the charge of murder. 11. The learned sessions judge in accepting the evidence of dying declaration as the basis for the conviction has said that it might be that the words quoted by the witnesses are not exactly those uttered by the deceased, and also it might be hyperbolic to say that the statement of Mani was quite coherent and very intelligible but that does not detract from the truth of the story narrated by the prosecution evidence. The learned judge appears to have overlooked the very serious infirmities is the evidence of the witnesses, in that they assert that Mani was quite normal when giving the narration and have no case that Mani only whispered or indicated by gestures who his assailant was. The learned judge appears to have overlooked the very serious infirmities is the evidence of the witnesses, in that they assert that Mani was quite normal when giving the narration and have no case that Mani only whispered or indicated by gestures who his assailant was. The artificial nature of the said dying declaration is clearly demonstrated by the fact that the narration by Pw.1 is only a verbatim reproduction of the dying declaration incorporated in Ext. P17 statement recorded under S.161 Crl. P. C. Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation has been deprecated by the Supreme Court in Munnu Raja's case ((1976)3 S. C. C. 104). 12. The court below has chosen to rely on the testimony of pws.13 and 20 in preference to that of Pw. 14, on the ground that Pw. 14 was giving evidence from his memory only. It is not correct to say that Pw. 14 was giving his opinion on the basis of his memory. The nature of the injuries sustained by Mani is evident from the post-mortem certificate and it is in answer to the questions with particular reference to the injuries thus described that Pw. 14 had expressed the opinion, which is not seen challenged. Even Pws.13 and 20 only corroborate the testimony of Pw. 14 on the material aspect that a person who had sustained such injuries could not give a statement as now spoken to by the witnesses. pw 20 who examined Mani at the medical college hospital and issued Ext. P14 wound certificate said that a patient inflicted with these injuries would be able to respond to questions. But when pursued Pw. 20 admitted that injury to the maxilla, mandible, angle of the mouth and face make the patient difficult to talk, that he might not be able to speak continuously or make a coherent statement, he may be able to answer to questions, the words uttered may not be very clear and he would be having severe pain. Pw. 20 also said that with these injuries if he was bleeding for one hour without first-aid he would have gone into shock and due to shock, there will be a lack of circulation of oxygen and the patient will be anoxic, Pw. Pw. 20 also said that with these injuries if he was bleeding for one hour without first-aid he would have gone into shock and due to shock, there will be a lack of circulation of oxygen and the patient will be anoxic, Pw. 13 who conducted the post-mortem examination said that Mani could not speak as an ordinary person speaks after sustaining the injuries and if he was not given first aid for about two hours, it is possible that the patient had got fatigued, and in such a case it was difficult to speak. According to Pw. 13, there was nothing to indicate that Mani lost his faculty of speech. But the admission made by Pw. 13 in the cross-examination that if the mandible is cut into two pieces, it will be difficult to move the jaw and there may be slurring of the speech, clearly disproves the veracity of that statement. 13. The evidence on a careful scrutiny thus reveals that Mani could not have been in a fit state of mind and body to make any coherent and intelligible statement relating to the circumstances which resulted in his death. The Supreme Court has in Darshan Singh v. State of Punjab (AIR. 1983 SC. 554) stated thus: "When it is said that a conviction can rest on a dying declaration, it is implied that it must inspire confidence so as to make it safe to act upon it. Hence, when from the medical evidence on record it was found that the vital organs of the deceased, like peritoneum, stomach and spleen were completely smashed, he could not be said to be in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death. Therefore, his dying declaration could not be relied upon for any purpose and had to be excluded from consideration." If Mani could not have made any intelligible statement because his physical capacity was impaired as a result of the injuries sustained, the dying declaration relied on cannot be genuine and what is attempted by the prosecution is only to let in artificial evidence which is wholly unacceptable and unsafe to be acted upon. The Supreme Court has stated in Datar Singh v. State of Punjab ((1975)4 S.C. Cases 272) that: "It is often difficult for Courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Court of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crime of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. If the process of evidence on which the prosecution chooses to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole superstructure built on such insecure foundations collapses, proof of some incriminating circumstances, which might have given support to merely defective evidence cannot avert a failure of the prosecution case." 14. In the present case when the dying declaration is discarded, the circumstances that the appellant did not attend the funeral of his parents or that he was unhappy over the disposition of family properties are immaterial. The prosecution must therefore necessarily fail. We are therefore unable to sustain the conviction recorded against the appellant in this case. 15. In the result the appeal is allowed. The conviction and sentence against the appellant are set aside and the appellant is acquitted of the charges, and he is directed to be released forthwith, if not otherwise required to be detained in prison.