ORDER
N. Arumugham, J.
1. These two appeals arise out of a judgment rendered by the learned Sessions Judge, Kanniyakumari Division at Nagercoil, in S.C. No. 42 of 1987 dated 31.8.1987, finding the first accused (appellant in C.A. No. 569 of 1987) alone guilty for the offence Under Section 302, I.P.C. and thereby convicting and sentencing him to life imprisonment and acquitting the accused 2 to 4 (respondents in C.A. No. 279 of 1988) of the charges framed and tried against them. Challenging the said judgment, the State has preferred appeal against acquittal in C.A. No. 279 of 1988 and the lifer the first accused has filed C.A. 569 of 1987, challenging the correctness and propriety of the same. Since both the appeals arise out of a single judgment against four accused, which ended in convicting the first accused and acquitting accused 2 to 4 and the convicted accused and the State have preferred separate appeals on the same factual aspects and law and evidence, both these appeals are disposed of by delivering this common judgment.
2. The factual scenario of the prosecution case is stated as hereunder:
P.W.1 Chellathangam is the wife of the deceased by name Ramasamy, residing in Vettikattuvilai in Sarottu Village in Kanniyakumari District, within the jurisdiction of the Thukkalay Police Station. P.W.1’s husband’s brother Velappan was employed as a Wireman in the Electricity Board. P.Ws. 3 and 4 are the daughters of the said Velappan. P.W5 their mother is one Ponnammal. It appears that there existed an enmity between Ponnammal’s family and the family of the accused for several years and as such they were not in talking terms. Ponnammal, the mother of P.Ws. 3 and 4 is stated to have encroached and put up a hut in the place belonging to one Chellammal and in that connection, at about 8 am. on 20.12.1985 there was a quarrel between P.W.3 and P.W.4 and the accused and in which A1.A3 and A4 had beat P.W.3 and P.W.4 and a complaint was given to Thukkalay Police station and accordingly, the injured were sent to the hospital. At about 6 p.m. on that day, the deceased Ramasamy, husband of P.W.1, returned from his job and he was informed of the morning incident by P.W.1. At about 9 p.m. the deceased has been to the house of Velappan for the purpose of enquiring the incident happened in that morning. At about 11 p.m. on that day, P.W.2 brought the deceased with the help of his hands and he was not in a position to talk and she was informed by P.W.2 that the accused has beat him with sticks. P.W.2 told her that when the deceased was returning from the house of Velappan, near the six feet pathway, all the accused beat him with sticks and hands. The left hand thumb finger, left side hand and the back were also seen with the injuries and more so, the deceased complained of pain in his bladder. As it was night time, P.W.1 could not go to the Police Station. Therefore, on the next day evening at about 8 p.m., she took her husband in an auto- rickshaw to the Thukkalay Police Station and gave a oral complaint which was reduced into writing to her narration, read over to her, and she subscribed her signature, marked as Ex.P.1. Then she took her husband to Thukkalay Hospital and after some treatment, he was referred to the Government Hospital, Nagercoil for further treatment, where P.W.1 and the deceased were examined by the Sub Inspector of Police, Thukkalay, and a statement was also recorded from the deceased by a Judicial Magistrate. After 10 days, the deceased Ramasamy died in the hospital.
3. P.W.2 by name Thangamani, a resident of Kovilvilai in Sarottu village, is an Ex-serviceman from the army and he claims that for the last 10 years, there was enmity existing between the two families above referred to. At about 10.30 p.m. on 20.12.1985 when he proceeded towards Manali road branching from Padmanabhapuram, the deceased Ramasamy came in the opposite direction and he took him to his brother’s house to enquire about the quarrel in the morning. When the deceased asked as to what had happened, they were informed that the accused had beaten the two daughters and upon the basis of which a complaint was given to the Police and they were treated at the Government Hospital at Thukkalay. As it was night time, P.W.2 advised the deceased that they could ask the accused on the next day morning. When P.W.2 and the deceased were coming through a six feet road near a Church, all the accused at that time came in the opposite direction with wooden logs in the hands of A2 to A4 and the first accused had no weapon. The first accused (A1) asked the deceased as to who he was to support the Velappan’s family and by so saying he beat Ramasamy with his hands. When A2 beat Ramasamy with sticks, he warded it off with his left hand and therefore that beating fell on his left hand. When A2 beat again with the stick, it fell on his left thumb. A3 and A4 also beat the deceased indiscriminately. When Ramasamy fell down facing upwards, all the four accused kicked him upon his cheat, stomach and abdomen with their legs. Afterwards, they left the place. Ramasamy raised hue and cry and was not able to stand up. However P.W.2 holding by the shoulder took him to his house and informed P.W.1 of the details at about 11 p.m. on that day.
4. P.W.3 and P.W.4 by name Prema and Selvi claim that the first and second accused were their uncle and A3 and A4 were the sons of A2 and that their family was not in talking terms with the family of the accused from the time of the marriage of their mother and their grand mother had put up a hut in the place belonging to one Chellammal and in connection with vacating the same, in the morning of 20.12.1985, A1 came and insisted her grandmother to vacate and it was at that time, a wordy quarrel erupted. When P.W.3 attempted to intervene, she was put down by A1. Regarding this incident they were to the Thukkalay police station, where A1 and A2 also came there to give a complaint. Thereafter, a case was filed in the court of Judicial Second Class Magistrate, Eraniel and these witnesses P.W.3 and P.W.4 admitted the offence and were released on admonition. Ex.P.2 is the complaint given by P.W.3 to Thukkalay police station. As they had claimed that except the above, there was no other complaint, these two witnesses were treated as hostile.
5. P.W.5 Chellammal claimed that she was a resident of Tuticorin and she owns land in an extent of one cent but however, it was occupied by one Annammal by putting a thatched hut and that when she was asked to remove the same, she demanded a sum of Rs. 1,000 and in that connection A1 and A2 asked Annammal to vacate and that she reported the village leader by name Murugan and that thereafter she had been to Tuticorin. Since she denied the further factual aspects of the prosecution case, she was also treated as hostile and she has not supported the prosecution. P.W.6 by name Chellappa is the attestor of the observation mahazar Ex.P.3 along with P.W.7 and P.W.7 also corroborated him in having attested Ex.P.3. P.W.8 Thiru. Muthuraj, Special Judicial First Class Magistrate, Nagercoil, appears to have received a requisition at about 1.35 p.m. on 22.12.1985 from the Government Hospital, Nagercoil, to record the dying declaration from one Ramasamy at the hospital and had been to the hospital by 1.45 p.m. and met the deceased at that time and after having introduced himself, he recorded the statement to the narration of the deceased, read over to him, and got his signature. The dying declaration has been marked as Ex.P.5. The above exercise was done in the presence of the Medical Officer, who has certified that during the time of recording the dying declaration, the deceased was conscious and able to understand what was going on and was able to give the statement. The certificate given by the Medical Officer has been marked as Ex.P.6. He would claim that during the time of recording the dying declaration, excepting the Medical Officer, no other person was present.
6. Dr. Krishnamoorthy, attached to the Government Hospital, Padmanabhapuram, examined as P.W.9, on the receipt of Ex.P.7 the memo from the Sub Inspector of Police Thukkalay, examined Ramasamy and found the following injuries:
1. Tenderness on the supra pubic region.
2. Linear vertical contusion 3″ x 1″ on the right back near right scapular region.
3. Distension of the abdomen.
4. A contusion on the left thumb on the dorsal aspect 1/2″ x 1/2″.
5. A contusion on the left dorsum of the hand 1″ x 1″.
The patient complained of pain in the abdomen. Catheterisation was done (taking out urine) T.T. was given. He would further say that at about 7.30.a.m. on 22.12.1985 he referred the deceased to the Government Hospital, Nagercoil for further treatment. Ex.P.8 is the copy of the Accident Register. Ex.P.9 is the copy of the wound certificate. According to this doctor, injury number 1 and 3 were of grievous in nature.
7. P.W.10 Dr. Yusuf, claims that at about 9 a.m. on 22.12.1985 he admitted the deceased Ramasamy in good condition and capable of speaking to others and Ex.P.10 is the copy of the Accident Register. Dr. Pen Ravindran P.W.11, the Medical Officer attached to the Government Hospital, Nagercoil, claims that he was present during the recording of the dying declaration by P.W.8, the Judicial Magistrate, at about noon on 22.12.1985 and that the patient was conscious and to that extent he has certified in Ex.P.6. P.W.12 Dr. Sathyavathi, Devi, the Medical Officer attached to the Government Hospital, Nagercoif has also seen the deceased Ramasamy and she speaks about the intimation sent to the Judicial Magistrate Ex.P.4 to record dying declaration and the surgery done to Ramasamy between 3 p.m. to 5 p.m. on that day. The tissues to the extent of 1′ x 1/2′ in the small intestine had been affected with sepsis and that it was rectified by the surgery and she was of the opinion that because of the tearing above referred, the faecal matter came out and surrounded other portions with infection and this injury could have been caused by kicking and beating and this injury is likely to cause death in the ordinary course of nature andEx.P.11 is the case sheet regarding the patient. Dr. Azhagesan, P.W.13 is the Radiologist attached to the Nagercoil Government Hospital. He speaks to the factum of the x-rays and Ex.P.13 is his report. Dr. Thangavel of the Government Hospital, Nagercoil, P.W.14 speaks about the second surgery and according to him, the internal injuries found on the person of the deceased would cause death in the ordinary course of nature. PW.15 Dr. Santhanam attached to Government Hospital, Nagercoil, claimed that the deceased Ramasamy had expired at about 7.30. p.m. on 4.1.1986 and sent Ex.P.14 the death intimation to the Police. Another doctor by name Boopathi, examined as P.W.16 of the Government Hospital, Nagercoil, on the receipt of the corpse with a requisition to conduct autopsy, he did the autopsy and found the following injuries:
1. Plastered wound 3 in numbers. The plasters were removed.
2. A sutured wound-surgical 19 sutures along the mid line vertically-30 cm wound is infected.
3. A drainage wound along with drainage tube in situ just about the left anterior super iliac spine 5 cm transverse-infected.
4. A cut down wound 1/2 cm just above the right medial mallelous.
He was of the view that all injuries are ante-mortem and the patient died due to the formation of peritonitis. Ex.P.16 is the post mortem certificate given by him.
8. Dr. Sahul Hamid, Medical Officer attached to the Government Hospital, Thukkalay, claimed that he examined P.W.3 at about 12.45 p.m. on 20.12.1985 and found a contusion and abrasion on her cheek and back and a contusion below the abrasion and the injuries are simple in nature. Ex.P.17 is the wound certificate. At about 10.50 a.m. on that day, he also examined P.W.4 and found an abrasion on her right shoulder joint and the injury was simple in nature. Ex.P.19 is the wound certificate issued by him.
9. P.W.18 Vincent, the Head Constable attached to Thukkalay police station has claimed that P.W.1 along with her husband came to the police station at about 8 p.m. on 21.12.1985 and gave a statement, which was reduced into writing to her narration, read over to her and got her signature. Since Ramasamy was not able to speak, he recorded the statement Ex.P.1 from P.W.1. Then with a Police memo. Ex.P.7 he sent the deceased Ramasamy to the Government Hospital, Thukkalay for treatment and placed Ex.P.1 for the perusal of the Sub Inspector of Police. P.W.19 the Sub Inspector of Police, hukkalay, on perusing Ex.P.1 took up the matter for investigation. On 22.12.1985 he had been to the Government Hospital, Thukkalay, and from where he came to know that the patient had been referred to the Government Hospital, Nagercoil and went there and recorded the statement from the injured Ramasamy, marked as Ex.P.20. He examined P.W.1 along with the Medical Officer, who treated the deceased. Then he returned to the Police Station by 5 p.m. on that day and based on Ex.P.1 registered the same in Thukkalay P.S.Cr. No. 558 of 1985 for the offences Under Section s 323 and 325, I.P.C. and prepared printed F.I.R. Ex.P.21 and sent the F.I.R. to the Judicial Second Class Magistrate, Eraniel. He took up further investigation and had been to the scene of crime at about 6.15 p.m. and in the presence of P.W.6 and P.W.7 he prepared the observation mahazar Ex.P.3 and rough sketch Ex.P.22 attested by them. P.Ws.7 to 9 were also examined. On 26.12.1985 at Sarottu at about 10.10 a.m. he arrested A1 and A2 and sent them for judicial remand. At about 11.10 p.m. on 4.1.1986, he received the death intimation of the deceased Ramasamy Ex.P.14 and accordingly, altered the section of offence into 302, I.P.C. and sent the express report Ex.P.23 to the court through P.C. 528 and posted the Constable 822 to guard the corpse. P.W.20 got the express report from P.W.19 and handed over the same at about 1.30 a.m. to the Judicial Second Class Magistrate, Eraniel with his acknowledgment Ex.P.24. P.W.21 Kumarasamy, the Constable attached to the Thukkalay police station, escorted the dead body and handed over the requisition for conduct of autopsy and also escorted during autopsy and after wards he recovered M.O.1 dhoti and handed over the dead body to its relatives. P.W.22 Inspector of Police Eraniel was then incharge of Thukkalay police station. He got the express report in this case and took up further investigation. He had been to the Government Hospital, Nagercoil and conducted the inquest over the dead body and prepared the inquest report Ex.P.25 and examined P.Ws.1 to 4. After the inquest, he sent the dead body for autopsy.
10. On 7.1.1986 in the early hours, he arrested A1 and A2 at Azhagiya mandabam and took further steps as provided by law. He examined P.W.16 on 20.1.1986. P.W.23 the Inspector of Police, Thukkalay, on 21.2.1986 took up the further investigation and on 26.2.1986 examined P.Ws 8 to 11, 15, 18 and having completed the investigation, laid the final report against the accused in the Court on 30.3.1986.
11. When the accused were questioned Under Section 313(1)(b) of the Code of Criminal Procedure, on the basis of the incriminating circumstances and materials placed against them by the prosecution, the accused have denied their complicity in toto. A3 has stated that he was studying in the second year in Hindu College and the case had been foisted against him. A4 has stated that he was employed in Richardsons, Madras, and he had also been implicated falsely. However, the accused did not choose to examine any witnesses on their behalf.
12. On recording the oral testimony of 23 witnesses, P.Ws 1 to 23, 27 documents Ex.P.1 to Ex.P.27, with the marking of one material object on behalf of the prosecution but none on behalf of the defence, with the rival contentions and the statements made by the accused during the 313 questioning, the learned trial Judge has come to the conclusion that the offence Under Section 302, I.P.C. committed by A1, who is the appellant in C.A. No. 569 of 1987 has been proved and established by the prosecution beyond all reasonable doubts and accordingly convicted and sentenced him to life imprisonment. Regarding A2 to A4, he has held that the prosecution has failed to prove the charges against them and accordingly found them not guilty and acquitted them of the charges, by rendering the impugned judgment. It is this judgment, the first accused A1 is challenging for its correctness and legality by preferring the former appeal and against the acquittal of A2 to A4, the State has come forwarded with the latter appeal and canvassing for its correctness.
13. We have heard the arguments advanced by Mr. Panchapagesan, learned counsel appearing on behalf of A1/ appellant in the earlier appeal and respondents in the subsequent appeal and the contra by the learned Government Advocate in both the appeals.
14. Mr. Panchapagesan, learned counsel for the appellant/
A1 contended firstly that there was an inordinate delay of nearly 21 hours in lodging the F.I.R. Ex.P.1 either by the victim or his party and for which, there was no explanation at all by either of the witnesses for the prosecution and as such, this unexplained delay of about 21 hours goes to the root of the prosecution and that secondly there is only one eye witness in this case and that is P.W.2 and on a careful scrutiny his testimony would disclose that his evidence deserves no legal credance at all and would clinchingly demonstrate that he is a planted witness subsequently by the prosecution and that therefore, the learned trial Judge while disbelieving the evidence of P.W.2 for acquitting A2 to A4, has adopted a wrong approach in believing the version of P.W.2 in the case of the first accused with regard to the one and the same transaction; To illustrate the dubious character and nature of P.W.2’s testimony, leaned counsel took us through the various portions of the evidence of the prosecution both oral and documentary, which in our view, are totally convincing and acceptable, with the result, that the entire testimony of P.W.2 is wholly unreliable and untrustworthy; thirdly, that the prosecution in the context of the existing chronic motive, falsely implicated A2 to A4 and so also A1 and in the result, the prosecution has burked the real occurrence and placed a totally different version, which version, directly conflicts with the version of the same prosecution story, with the result, who did the overt act and as to how and in what manner, which accused caused the injury to the deceased who died after a lapse of more than 10 days in the hospital all remain a mystery; fourthly, the medical evidence though emerged out from a large number of medicos attending the deceased and who had taken all positive steps by conducting surgery more than once, did not render any support to the prosecution in substituting and corroborating the claim of the ocular witness. Lastly, the learned counsel would contend while the learned trial Judge disbelieved all the prosecution witnesses and their version, in acquitting A2 to A4, went wrong and had approached thoroughly on a false notion and convicted Al alone by believing the same version with regard to the same transaction, the same occurrence and same set of facts and evidence, which cannot be recognised in law.
15. The contrary was endeavored by the learned Government Advocate Mr. Babu Muthu Meeran, on behalf of the state not only to justify the conviction rendered against A1 but also to show that the judgment of acquittal rendered by the trial Judge against A2 to A4 is perverse in nature and that therefore, called for our interference in these appeals.
16. In the light of the above rival positions, we have been taken through the entire oral testimony and documentary evidence by the bar for the respective parties and accordingly, we have carefully perused the same, much less very meticulously. Coming to the first contention raised on behalf of the first accused/appellant it appears that the occurrence at the six feet road branching from the road leading to Padmanabhapuram, according to the prosecution, happened at about 11 p.m. on 20.12.1985. Immediately after the occurrence, it is also noticed that the accused had run away and the deceased who fell down, unable to speak, was brought by P.W.2, by the shoulder and hands to the house of P.W.1, and he narrated the whole incident happened to P.W.1 , the wife of the injured. This was at about 11.30 p.m. on that day. Strangely enough, after the narration and handing over the inured to his wife P.W.2, the star witness in this case, has left the place by doing nothing and then his whereabouts are not known till about 5.1.1986 when he was examined by the Inspector of Police at the time of inquest at the Government Hospital, Nagercoil, It is worthwhile to note that P.W.1 and the deceased were living in the village by name Sorattu. The observation mahazar Ex.P.3 and the rough sketch Ex.P.22 would clinchingly show that there are several persons living in and around the house of the deceased and anyone in the neighbourhood could have been approached for any help to report the matter to the authorities or set the law in motion. The more significant aspect is though her husband was not in a position to speak and complained of pain in the abdomen below his umbilicus, no treatment was given and there was no evidence to show that any attempt had been taken. It is discernible that P.W.1 came to know about the details of the incident only from P.W.2 and sons his information, she did not know anything about the incident. Even so, on seeing the precarious condition of her husband, she was all along alive without taking any steps even till 8 p.m. on the next day when she took her husband in an auto-rickshaw to Thukkalay police station, which is about four kilometres from her residence. The delay thus caused for about 21 hours, by P.W.1 or P.W.2 remains unexplained and this delay is deliberate and purposeful. Therefore, we find no reason, for any prudent lady or the house wife to keep quiet for nearly a day on the verge of her husband being almost in total collapse. The conduct of P.W.1 and P.W.2 in this regard are totally strange, peculiar and surmising. Therefore, in the context that the prosecution has not been able to give any plausible or acceptable explanation in this regard, we hold that the delay of 21 hours in setting the law in motion by the prosecution is very fatal and totally goes to the root of the prosecution case.
17. Regarding the oral evidence made available, were have already held that P.W.1 is not an ocular witness and P.W.3, 4 and 5 were also not of any help to the prosecution not only for the reason that they were all treated as hostile but also they claim chronic enmity between the family of the accused and the deceased. In the context of the arch rivalry existed between the prosecution group and the accused’s group, the court has to proceed with the marshalling of the evidence of the prosecution witnesses very cautiously for the reasoning that prolonged anmity may tend the prosecution party, namely, the woman folk, to rope in the accused frivolously in this case. Therefore, if the evidence of P.W.1, 3, 4 and 5 are eschewed, viewed as aforesaid, the only ocular testimony that remains is the evidence of P.W.2. P.W.2, though the sole eye witness, it cannot be a rule that his sole testimony should be disregarded provided P.W.2 appears to be a truthful witness and speaking the truth and nothing but the truth, if not, the result would be on the converse. To illustrate the conduct and character and the falsility of P.W.2’s evidence, we would like to point out one or two aspects alone. As we have already referred to, after handing over the deceased, P.W.2 went away and his whereabouts was not known till he was examined during the inquest on 5.1.1986. This conduct on his part is totally strange and unbecoming. Secondly, he has not claimed in the box that the first accused along with others had kicked the deceased upon his chest and abdomen several times. Perhaps, the learned trial Judge has believed this portion of the evidence on the basis of Ex.P.27 the station case diary. With great constraint, we may observe that this sort of approach adopted by the learned Sessions Judge is not correct in the eye of law for the reasoning that the station diary does not contain any details or materials with regard to the specific overt act of the accused and the actual injury and the consequences. Curiously enough, when this witness was examined by the Inspector of Police during the inquest for the first time and in the earlier point of time he has never stated that the first accused has kicked the deceased on several parts of his body. If really he had witnessed the several overt acts of the first accused, he would have stated the same before the investigating officer when he was examined during the inquest but for the obvious reasons known to himself, he has not stated before the investigating officer the specific overt acts of the first accused but subsequently, in order to oblige the prosecution and to fill up the gap, he had developed his innovation that the first accused had contributed his kicks on several parts of the body of the deceased. In view of this omission and the improvement, we have no difficulty at all to discredit the whole testimony of P.W.2. Barring this, the medical evidence given by the medicos in this case, would not add any substantiation or corroboration to the sole ocular testimony of P.W.2. Before the court below, the specific claim of P.W.2 was that the first accused has beat the deceased with the stick several times on several parts of the body. It is thus seen that the solemn testimony of the sole eye-witness contains two different versions, one conflicting with the other, and under such circumstances, it is not known which version is true and therefore, in our considered opinion, the entire oral testimony of P.W.2 should be eschewed as having no legal basis. Therefore, we reject the evidence of P.W.2.
18. It is true that ‘peritonitis’ formed in the small intestine of the deceased was due to the injuries referred to as number 1 and 3 in the post mortem certificate and evidenced by the medicos and the deceased was done to death by homicidal violence and injury numbers 1 and 3 are likely to cause death in the ordinary course of nature. The doctor has given the ordinary course of nature. The doctor has given the opinion and the reasoning for such conclusion but the question that remains to be seen is, who is the person responsible for causing such bodily injury to the deceased, which is likely to cause death in the ordinary course of nature. If the evidence of the prosecution witnesses is scrutinised, it is seen that there is absolutely no iota of legal evidence at all to prove the complicity of the first accused. Even the various findings given by the learned trial Judge do not tend to prove the complicity of the first accused and while recording the finding, we are of the view that the learned trial Judge has wrongly placed his reliance on Ex.P.27 the Police Station Diary, which does not support the prosecution case in any manner and practically there is no legal evidence at all. Therefore, after having carefully considered the entire adduced evidence, we are fully constrained to hold that the prosecution has deliberately failed to prove the complicity and guilt of the first accused beyond all reasonable doubts so as to sustain the charge Under Section 302, I.P.C. and in this regard, we are inclined to set aside the impugned judgment of conviction and sentence recorded by the learned Sessions Judge against the first accused.
19. Coming to the subsequent appeal, preferred by the State, against the acquittal of respondents 1 to 3/A2 to A4 we heard the arguments and contentions of Mr. Babu Muthu Meeran, learned Government Advocate, and the contra from Mr. Panchapagesan, learned counsel for respondents. In the context of the elaborate judgment of the trial Court, pointing out the preponderance of improbabilities, the inconsistent stand of the prosecution witnesses with their testimony and the conflicting nature of their versions, as found particularly in paragraphs 33 to 53, all the reasonings and findings given by the learned Judge in the impugned judgment are sound, valid in law and on par with the established norms of the Procedure. Therefore, we do not find anything wrong or anything to discredit the said findings. They are to be necessarily upheld and no iota of material had been shown before us to see the perversity of the impugned judgment.
20. We notice that the learned trial Judge while acquitting A2 to A4/respondents 1 to 3, had totally disbelieved the testimony of not only P.W.2 but also other witnesses but for the same transaction and same set of evidence while coming to the first accused the learned trial Judge has placed every reliance upon the testimony of P.W.2 as well as Ex.P.27. The so-called dying declaration marked as Ex.P.5 though claimed to have been proved by the author, namely, Special Judicial Fist Class Magistrate, as attested by the doctor, is of no consequence for the very reasoning that it came into existence only on the third day from the date of occurrence and till that time his wife was all along with the deceased, by which, the tutoring of the mind of the deceased as intermeddled, cannot be ruled out. Therefore, the view and the conclusion held by the learned Judge with regard to the dying declaration Ex.P.5 is correct and we uphold the same. Accordingly, we are satisfied to uphold the judgment given by the learned trial Judge with regard to the acquittal of A2 to A4 respondents 1 to 3. As a result, the subsequent appeal C.A. No. 279 of 1988 has no merits and has become liable to be dismissed in toto.
21. For all the foregoing reasonings, the appeal in C.A. No. 569 of 1987 preferred by the first accused/A1 succeeds and accordingly, it is allowed. The conviction and sentence rendered against the first accused by the learned Sessions Judge, Kanniyakumari Division at Nagercoil, in S.C. No. 42 of 1987 dated 31.8.1987 is hereby set aside. Accordingly, the first accused is hereby acquitted forthwith. Consequently, the appeal against acquittal in C.A. No. 279 of 1988 against A2 to A4/ respondents 1 to 3, is dismissed confirming the findings recorded by the learned Sessions Judge in the impugned judgment.