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G.Girish, J.

Down the serene valleys of the Wayanad Hills, as they existed at that time, on Arnamala Estate Road, lay 24-year-old Ratheesh Kumar in a pool of blood, spilled from 43 incised wounds on his body, from thighs to head, on the night of 29.05.2010. His fervent cries caught the attention of two persons by name Pandian (PW3) and Velayudhan @ Sivanandan @ Swami (PW4) residing in that locality, who rushed to that place. Pandian, on the way to the above place, is said to have seen Nagaratnam, the alleged assailant, fleeing through Arnamala Estate road in his opposite direction with a knife in his hand and a bag around his shoulder. The accused is said to have not responded to Pandian though Pandian called him by his name. The injured, it is said, exhorted Pandian to save him. Within a short time, as informed by Swami, Mohanan (PW5) also reached the spot. Ratheesh Kumar, who was writhing in pain, is said to have told the above persons that Nagaratnam, the accused herein had hacked him with a knife. Mohanan immediately called the parents of Ratheesh Kumar and also one Sankaran Kutty (PW9) residing in that locality who was owning a jeep, to come with his jeep for the hospitalisation of Ratheesh Kumar. They came to the spot within a short while. The witnesses 2024:KER:65526 claim to have seen the victim in moon-light, torch-light and lights from lamps of a nearby temple and bungalow. Ratheesh Kumar is said to have told Balasubramanian (PW1), his father, and also his mother, that Nagaratnam had hacked him with a knife. Ratheesh Kumar was immediately taken in the jeep driven by Shiju (PW10) to Leo Hospital, Kalpetta where the Doctor (PW20), who was present there, applied first aid and referred him to Medical College Hospital, Kozhikode. Though Ratheesh Kumar was taken in an ambulance from the said private hospital to Kozhikode Medical College Hospital, the Doctor who attended him at Medical College Hospital, Kozhikode at about 12:30 midnight declared him as brought dead.

9. As regards the dying declaration of the deceased, the learned Senior Counsel for the appellant would contend that it is totally unreliable due to multiple reasons. Firstly, it is stated that the evidence adduced by PW1, PW3, PW5 and PW9 with regard to the dying declaration said to have been made by the deceased, does not disclose the exact words said to have been uttered by the deceased. To substantiate the above point, the learned Senior Counsel would point out that PW5 and PW9 have stated about the utterance of words by the deceased in Tamil, whereas the evidence of PW1 and PW3 is to the effect that the deceased communicated in Malayalam to them about the 2024:KER:65526 alleged act of the accused hacking with a knife. Thus, according to the learned Senior Counsel, no credence could be attributed to the evidence canvassed on the basis of dying declaration since the exact words said to have been spoken by the deceased, are not brought on record.

23. As far as the present case is concerned, the evidence tendered by PW1 is that after reaching the place where his son, the deceased, was found lying in an estate road in a pool of blood, he asked his son what happened. In answer to the above question, the deceased is said to have stated that Nagaratnam hacked him with a knife. The evidence tendered by PW3 is to the effect that when he found that it was Ratheesh (the deceased), who was lying in the road soaked in blood due to the multiple injuries suffered, he asked him who had done this. In answer to the above question, the deceased is said to have told "Nagaratnam hacked him". Thus, it is apparent that neither the questions put to the deceased nor the answers given by the deceased were in so many words making it complex and susceptible to different meanings. Going by the law laid down by the Apex Court in Meesala Ramakrishnan (supra), even if the deceased had conveyed the alleged act of the accused hacking him with a knife by mere words or gestures, the dying declaration so tendered could not be said to be vitiated. That being so, the mere fact that PW5 and PW9 had stated that the deceased had conveyed the information in Tamil about the alleged act of the appellant hacking him with a knife, cannot 2024:KER:65526 be said to be a circumstance which would vitiate the sanctity of the said dying declaration.

25. Another reason pointed out by the learned Senior Counsel representing the appellant to discard the evidence pertaining to dying declaration is that the medical evidence brought out by the prosecution through Ext.P11 wound certificate and the testimony of PW20, the Doctor who attended the deceased in a private hospital after one hour from the time of occurrence, would rule out the possibility of the deceased speaking to PW1 and PW3 about the cause of the injuries suffered by him. It is true that PW20 stated during the chief examination itself that at the time of his examination of the deceased he found that the patient was conscious but not able to answer properly due to his pain. In cross-examination, PW20 made it clear that the injuries suffered by the deceased were of such a nature that normally he may not be able to speak properly. The learned Senior Counsel representing the appellant also placed much reliance upon the evidence tendered by DW1, a Professor of Forensic Science Department, KMCT Medical College Hospital, Kozhikode, that the injuries noted as injury Nos.6 and 45 in Ext.P13 postmortem report, would have severely impaired the ability of the deceased to speak desirably. We are not inclined to accept the argument of the learned Senior Counsel that the medical evidence in the above regard would completely rule out the possibility of the deceased uttering three or four words 2024:KER:65526 implicating the appellant as the person who hacked him. The mere fact that PW20 had stated that the deceased might not have been in a position to speak properly as a result of the injuries suffered by him, does not mean that the utterance of the words 'Nagaratnam hacked him with a knife', was a total impossibility. It is pertinent to note that DW1, the witness who had been heavily relied on by the defence, had made it clear that the vocal cord of the deceased was not injured and hence, he may utter cry though he may not talk clearly. Furthermore, PW23, the Associate Professor and Deputy Police Surgeon, Kozhikode who conducted the autopsy and issued Ext.P13 postmortem report, categorically stated before the Trial Court that since there were no cut injury on the vocal cord, there would not have been any obstruction for the injured to speak or to cry. Taking into account of the evidence of PW23 in the above regard, along with the unequivocal statements of PW1, PW3, PW5 and PW9 about the dying declaration tendered by the deceased that the appellant hacked him with a knife, we have no hesitation to hold that the deceased was not incapacitated from uttering the words disclosing the cause of the injuries sustained by him. It is pertinent to note that at the time of cross-examination of PW1, PW3, PW5 and PW9, no questions were put by the defence counsel that the deceased had suffered injuries of such a nature which would have impaired his capacity to speak.