JUDGMENT Anna Chandy. J.- Ten accused persons were tried by the Sessions Judge, Tellicherry, for the offences punishable under sections 147 , 148 , 302 and 326, Indian Penal Code. The charge against them was that they had formed themselves into an unlawful assembly with the common object of murdering three persons, Kayanhi, Anduman and Assainar and in prosecution of that common object caused death of Kayanhi and Anduman and also caused grievous hurt to Assainar (P.W.41. Accused 1, 4 and 9 were convicted under section 302 read with section 149 for the murder of Kayanhi and Anduman and sentenced to two terms of rigorous imprisonment for life. There is also a conviction under section 326 read with section 149 for causing grievous hurt to P.W.4 for which they were sentenced to undergo rigorous imprisonment for two years. The remaining accused were acquitted. Criminal Appeal No. 242 is by the convicted accused and 282 is by the State against the order acquitting the others. The deceased Anduman and Kayanhi and Assainar are direct brothers. They were bad characters and several complaints were filed against them by the people of the locality. Security proceedings were started against them and there was an order for their daily appearance in the Kasaragod Police Station. The three brothers were persecuting the second accused and his people who were living in their neighbourhood. Feelings between them and the accused became strained and it is the prosecution case that on 31st December, 1961 while the brothers were on their way to the Police Station the accused who were lying in wait for them behind a vacant shop surrounded them and beat them with iron rods and sticks. Kayanhi died on the spot within fifteen minutes and the other two who were lying injured Were removed to the Kasaragod Hospital by P.W.14 the Sub-Inspector who arrived at the spot on getting the information. As the condition of Anduman and P.W.4 were serious their dying declarations were recorded by the Magistrate. Anduman succumbed to his injuries at 9 in the night the same day and Assainar had to be treated in the hospital for about five months for his injuries. All the accused pleaded not guilty. They denied their Presence and parlicipa-tion in the occurrence and contended that they had been falsely implicated by Poyakkara Abdulrahiman Haji who is an inveterate enemy of the second accused. All the accused pleaded not guilty. They denied their Presence and parlicipa-tion in the occurrence and contended that they had been falsely implicated by Poyakkara Abdulrahiman Haji who is an inveterate enemy of the second accused. The prosecution sought to prove its case by the evidence of P.W.1 the fourteen-year old son of P.W.4, P.W.2 the father-in-law of the deceased Kayanthi, P.W. 3 the first informant (another eye-witness), P.W. 4 Assainar one of the injured and Exhibit P-2 the dying declaration of Anduman. It is not necessary to scan the evidence of P.Ws.1 to 4 as their evidence has been elaborately discussed by the learned Sessions Judge who found it not safe to be acted upon for very good reasons. P.W.1 had met Poyakkara Haji (who is found to have played a prominent part at the irvestiga-tion stage and tried to implicate innocent persons) before he was contracted by the Police and had improved freely upon his case diary statements and there are unmistakable indications of the boy having been tutored. P.W. 2 is a chance witness, deeply interested in the prosecution and the learned Judge disbelieved him when he said that Kayanhi (who was not in a position to talk) had himself mentioned to him the names of all the accused. P.W. 3 the first informant admitted that he went straight from the scene to Poyakkara Haji with whom he had a talk before he proceeded to the Police Station to give the first information statement. According to his evidence before Court the assailants were Sooppi Kutty, Kulangara Mammunhi, Moideen Haji, Abdul Khader son of Thuruthi Abdur Rahiman, Mammunhi son of Beeran and Anthunhi son of Seethi and he did not see any of the accused at the scene. In Exhibit P-1 he had mentioned only eight persons as the accused and they are accused 2 to 5 and 9, Andunhison of Abdurahiman, President Ibrahim and Muhammad Kunhi and he had to admit that these names were mentioned at the instance of Poyakkara Haji. The version of the occurrence given by him in Exhitit P-1 is materially different from the one developed by the prosecution. In Exhibit P-1 the leading role was given to President Ibrahim and Muhammad Kunhi who are alleged to have cut with knives and swords. The version of the occurrence given by him in Exhitit P-1 is materially different from the one developed by the prosecution. In Exhibit P-1 the leading role was given to President Ibrahim and Muhammad Kunhi who are alleged to have cut with knives and swords. They are not on the array of the accused at all and swords and knives are entirely out of the picture. The evidence of P.W. 4 though one of the injured has also to be discarded in view of the inherent defects in it. As observed by the learned Judge the deposition of P.W. 4 is a bundle of c ontradic-tions. In Exhibit B-1 his statement recorded by the Magistrate in the hospital he mentioned twelve persons as the assailants including accused 1 to 5, 7 and 9 besides other unnamed persons. The names of accused 6, 8 and 10 are omitted and Abdul-khadar the father of the ninth accused is also included. The witness had to admit that this Abdulkhadar was dead several years back. He had filed a complaint before the Magistrate regarding the same occurrence. Exhibits D-2 and D-3 are the complaints and the sworn statement. In Exhibit D-2 over and above the accused in this case President Ibrahim, Abdulla Haji and Mohammad Kunhi are added and in the sworn statement his case was that about sixteen persons participated in the attack. He has given varying versions of the occurrence. In Exhibits D-1, D-2 and D-3 and before Court he has given the go-by to those versions. It is also an admitted fact that Poyakkara Haji was present by his side and was found talking to him before his statement was recorded by the Magistrate. Having discarded the evidence of all these witnesses the learned Judge has convicted the appellants relying mainly on Exhibit P-2 the dying declaration of Anduman seeking corroboration in the evidence of P.Ws.2 and 7. As the learned State Prosecutor also relied upon the self-same items of evidence to sustain the conviction and did not attempt to place any reliance on the evidence that was discarded by the learned Judge we may confine ourselves to these three items. Relying upon the decision of the Supreme Court in Khushal Rao v. State of Bombay1 the learned Prosecutor asks us to uphold the conviction of the appellants on the strength of the dying declaration alone. Relying upon the decision of the Supreme Court in Khushal Rao v. State of Bombay1 the learned Prosecutor asks us to uphold the conviction of the appellants on the strength of the dying declaration alone. It is clear that “once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration’, but “in-order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity by cross-examination”. One of the important tests is to find out whether the declaration was net the result of tutoring by interested parties. This aspect was emphasised in a later decision of the Supreme Court in Tarachand v. State of Maharashtra2-where their Lordships said that “--a dying declaration is not to be believed merely because no possible reason can be given for accusing the accused falsely. It can only be believed if there are no grounds for doubting it at all.” The dying declaration in this case is subject to a very serious infirmity, in that there is every possibility of the statement having been made at the prompting and direction of Poyakkara Abdulrahiman Haji who it is admitted by the prosecution and found by the Judge to have played a very significant part in the shaping of the case from the very start. It is not necessary for us to go into the evidence on the matter as the findings and observations made by the learned Judge speak for themselves. The Sub-Inspector admits that Povakkara Haji is a registered rowdy of the station who was an accused in a murder case and against whom security proceedings were taken. He is also seen to be a rich and powerful man in the locality. It is well established by the evidence that there is bitter enmity between Poyakkara Haji on the one side and accused 2 and his relations on the other and Poyakkara Haji was making consistent though futile attempts to start security proceedings against the second accused and his people. It is well established by the evidence that there is bitter enmity between Poyakkara Haji on the one side and accused 2 and his relations on the other and Poyakkara Haji was making consistent though futile attempts to start security proceedings against the second accused and his people. It is in evidence that Haji had made himself busy with the interference with the case from the very start. Even half an hour before P.W.3 reached the Police Station to give 1 he first information, Haji had sent phone message to the station saying that he was sending his people to the Station with information about an occurrence and asking the police to do the needful in the matter. P.W.13 the Head Constable who recorded Exhibit P-1 admits that Haji was moving about in the Station premises at the time Exhibit P-1 was being recorded. The Circle Inspector admits that even on the date of occurrence Poyakkara Haji was trying to rope in a son of accused 2 who is a lecturer in the Engineering College, Quilon and President Ibrahim and Abdulkhadar as accused in the case. He had also taken the trouble of getting Mayin another son of accused 2 at Bangalore arrested on sending information through his nephew an Advocate in Bangalore that Mayin had taken part in the occurrence. There is also the signicant admission made by P.W.19 the Circle Inspector that Poyakkara Haji was present by the side of P.W. 4 and was actually talking to P.W. 4 before his dying declaration was recorded at the hospital. The learned Judge seems to have been so well impressed with the role played by Haji in this case that he has gone to the extent of saying that the evidence of any one who has come under the influence of Poyakkara Haji has to be viewed with great suspicion. Though there is no positive evidence that Poyakkara Haji had actually met Anduman and talked to him before his statement was recorded, there are clear indications that in all probability he must have done it. Exhibit P-2 was recorded by P.W.5 at 6-20 p.m. in the hospital. Immediately after that, we find the statement of P.W.4 who was lying in the same ward being recorded. Exhibit P-2 was recorded by P.W.5 at 6-20 p.m. in the hospital. Immediately after that, we find the statement of P.W.4 who was lying in the same ward being recorded. There is the unequivocal admission made by P.W.19 that Haji was present by the bed-side of P.W.4 and was found talking to him even before his lying declaration was recorded in the hospital. It is rather strange to think that Poyakkara Haji who had rushed up to the hospital in time to instruct P.W. 4 could have left Anduman to himself. On the other hand considering the great amount of trouble that Haji had taken in this case to manipulate the early records so as to rope in innocent persons it is quite possible that he should have taken care to contact Anduman who was lying injured in the same ward. The learned Judge thought that there was no possibility of Poyakkara Haji having been contacted before he gave the statement for the reason that Exhibit P-2 statement is not on the same lines as Exhibit P. 4. That circumstance does not justify any such inference. It is not necessary that Poyakkara Haji should have instructed everybody concerned to make statements on the same lines and even if he had done so the injured persons may not be in a position to grasp it fully or to repeat it in all its details. There is ample evidence in the case that Haji was interested in roping in as many persons as possible and that may be one reason why we come across so many inconsistent versions about the number and names of the accused. In the face of this disturbing circumstance we do not feel it safe to act upon the dying declaration much less to do so in the absence of proper corroboration. In fact the learned Judge himself sought for corroboration and though it fit to act upon the dying declaration only to the extent he found it to be corroborated by the evidence of P.Ws.2 and. 7. In Exhibit P-2 Anduman has implicated six persons of whom only four were found to have taken part. It has next to be seen whether the evidence resorted to for the purpose of corroboration is worthy to be acted upon. 7. In Exhibit P-2 Anduman has implicated six persons of whom only four were found to have taken part. It has next to be seen whether the evidence resorted to for the purpose of corroboration is worthy to be acted upon. Even a casual reading of the evidence of P.W. 7 Assya Ummal shows that it is not safe to act upon her evidence for any purpose. Her version is that at 4 p.m. she heard a cry from the scene and saw four persons running towards the east. She did not actually see them doing anything nor did she see them armed with any weapons. According to the evidence at least sixteen persons had taken part in the assault and there were several others on the road and as such the mere fact that some persons were found running on the road even if it be true cannot justify the inference that they had taken part in the attack. The witness mentions them in court as accused 1, 3, 4 and 9. However she admitted in cross-examination that she was seeing the four accused mentioned by her for the first time on that day and when she was asked to identify them from among the accused in the dock she pointed out others. As for P.W.2 he is one who came forward with the definite case that Kayanhi had mentioned to him the names of all the ten accused as assailants, a story which the learned Judge himself has found to be false. Moreover he is highly interested in the prosecution and a chance witness whose presence at the place is not properly accounted for. In view of these facts it is neither safe nor proper to salvage a portion of his evidence to corroborate the dying declaration. We are not prepared to accept the evidence of P.W.2 when he says that he had seen accused 1, 3, 4 and 9 running away from the scene with iron rods and blood-stained clothes. Thus the prosecution has not made out by acceptable evidence that the accused 1, 3, 4 and 9 had taken part in the attack on the deceased persons or P.W.4. Thus the prosecution has not made out by acceptable evidence that the accused 1, 3, 4 and 9 had taken part in the attack on the deceased persons or P.W.4. The learned Judge has discarded the early version of the occurrence as given in the first information statement as a tainted one and has also rejected the evidence of P.W.4 the injured who is the most competent person to give evidence. The other eyewitnesses also have been disbelieved. It is a case in which from the very beginning attempts are made by interested and influential persons to rope in as many persons as possible and it is very risky for the Court to pick out from among the an ay of the accused four persons and find that they are responsible for the crime however much one may regret the brutal murder of two persons going unpunished. It is preeminently a case in which the accused are entitled to the benefit of doubt. Criminal Appeal No. 242 is therefore allowed and the conviction and sentence passed against the appellants are set aside. They will be set at liberty forthwith. Criminal Appeal No. 282 filed by the State is dismissed. M.C.M.-----Cr.A. No. 242 of 1962 allowed; and Cr.A. No. 282 of 1962 dismissed.