Kerala High Court · 2024

After investigation, he filed a final report before the Judicial First- Class Magistrate Court, Karunagapally. The learned Magistrate, after completing the statutory formalities, committed the case to stand trial before the Sessions Court, Kollam. The case was then transferred to the trial court for trial and disposal.

5. The trial court, after hearing the learned Prosecutor as well as the appellant, framed the charge against the appellant under Sections 201, 449, 506(ii) and 302 of IPC. The appellant denied the charge and pleaded not guilty. The parties went on trial. The prosecution examined PWs1 to 17 and marked Exts.P1 to P23. MO1 to MO8 were identified. The appellant was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances which were put to him. On the side of the defence, Exts.D1 and D2 were marked. After trial, the trial court found the appellant guilty of the offences punishable under Crl.Appeal No.1129/2018 -:5:- Sections 201, 449 and 302 of IPC, and he was convicted for the said offences. He was acquitted of the offence charged under Section 506(ii) of IPC. The trial court sentenced the appellant to undergo rigorous imprisonment for life and to pay a fine of `1,00,000/-, in default to suffer rigorous imprisonment for one year for the offence under Section 302 of IPC, to undergo rigorous imprisonment for ten years and to pay a fine of `50,000/- in default to suffer rigorous imprisonment for six months for the offence punishable under Section 449 of IPC, to undergo rigorous imprisonment for two years and to pay a fine of `5,000/- in default to suffer rigorous imprisonment for ten days for the offence punishable under Section 201 of IPC. The sentence was ordered to run concurrently. Out of the fine amount, `1,25,000/- was ordered to be paid to the legal heirs of the deceased as compensation under Section 357(1) of Cr.P.C.

6. As the appellant was not represented by his own lawyer, Adv. Vinu Raj R. was appointed as crown counsel to render legal aid to him. We have heard the learned counsel for Crl.Appeal No.1129/2018 -:6:- the appellant as well as Sri.Alex M.Thombra, the learned Public Prosecutor.

7. The learned counsel appearing for the appellant impeached the findings of the trial court on the appreciation of evidence and the resultant finding as to guilt. The learned counsel submitted that PW1 and PW5, whose evidence was heavily relied on by the trial court, are interested witnesses. The learned counsel further submitted that even if the prosecution case is believed in its entirety, still on the basis of the materials brought on record by the prosecution, the offence under Section 299 of IPC punishable under Section 304 (II) of IPC alone is attracted. On the other hand, the learned Public Prosecutor supported the findings and verdict of the trial court and submitted that the prosecution had succeeded in proving the case beyond reasonable doubt.

8. The deceased, who sustained severe injuries on the left side of the front of the chest, succumbed to the injuries shortly after the occurrence at the hospital. PW6 is the doctor Crl.Appeal No.1129/2018 -:7:- who conducted the autopsy on the body of the deceased and issued Ext.P4 certificate. The evidence of PW6 coupled with Ext.P4 unmistakably shows that the deceased died because of the injury sustained on the left side of the front of the chest, which has been described as injury No. (i) in Ext.P4. PW6 deposed that the said injury is a fatal one and is sufficient in the ordinary course of nature to cause the death of a person. The crucial question is whether the said injury was intentionally inflicted by the appellant as alleged by the prosecution.

9. The prosecution mainly relied on the oral evidence of PWs1, 3, 5 and 6, Exts.P1, P1(a), P1(b) and P4 to prove the incident and to fix the culpability of the accused. PW5 is the ocular witness. PWs1 and 3 are the witnesses who witnessed the incident in part. While appreciating the evidence of PWs1, 3, and 5, certain specific admissions made by the appellant are to be borne in mind. The appellant has admitted his presence, the presence of the deceased, and the presence of PW5 at the scene of occurrence at the time of the incident. He also admits the Crl.Appeal No.1129/2018 -:8:- altercation between him and the deceased as well as the stab injury sustained by the deceased on his chest. But his case is that the injuries were not sustained to the deceased in the manner and fashion as alleged by the prosecution and that he was not at all responsible for the injuries sustained by the deceased. According to him, the incident occurred while the deceased, who was in a drunken state, attacked him with a knife, and he tried to save himself.

10. PW5, the mother of the appellant and the deceased, is the key witness relied on by the prosecution. She was an ocular witness. She deposed that on 5/3/2016 in the morning, the deceased Sunil Kumar took away the rope belonging to the appellant Anil Kumar without his permission. When the deceased Sunil Kumar brought back the rope in the evening, the appellant Anil Kumar asked for its rent. He was carrying MO1 stick in his hand. Then, an exchange of words occurred between them. PW1 Suresh and PW3 Nisha were sitting in the verandha of their house. The deceased complained to Suresh that the appellant Crl.Appeal No.1129/2018 -:9:- was attempting to beat him and asked him to come to his house. The appellant put down MO1, went inside the house, and sat on the cot in the northern bedroom. PW5 was standing in front of the southern bedroom. At that time, the deceased Sunil Kumar came to the southern bedroom to get oil for bathing. Seeing this, the appellant who was at the northern bedroom rushed towards the deceased Sunil Kumar, caught hold of his neck with his left hand, pressed him towards the wall and stabbed his left chest forcefully with MO2 knife. She further deposed that she hit on the back of the appellant. Then deceased Sunil Kumar came outside the house holding his bleeding chest with his hand, walked towards the house of PW1 Suresh and told Suresh that the appellant stabbed him. She also told PW1 that the appellant stabbed him. The deceased took a few steps backward and fell on the ground. The appellant came out of the house carrying blood-stained MO2 in his hand. He wiped off the blood from the knife and sat on the head side of the deceased with a smiling face. She further deposed that PW3 Nisha who was present there then called PW2 Crl.Appeal No.1129/2018 -:10:- Kumaran over phone. PW2 came to the house after a short while and the deceased was taken to the hospital where he was declared dead. She also spoke of the motive. She identified MO1 and MO2 as well.

11. PW1 is the brother of the appellant and the deceased. He was an eyewitness who saw the incident partly. He gave Ext.P1 FIS to the police, based on which Ext.P10 FIR was registered. His evidence would show that while he along with PW3 were sitting in the verandha of his house, he saw the appellant and the deceased quarrelling over the rope took away by the latter without the permission of the former. The deceased complained to him that the appellant was attempting to beat him. PW5 called him inside the house. At that time, the appellant threatened him with dire consequences if he went to his house. The appellant then went inside the house. After a short while, the deceased also went inside the house to take oil for bathing. PW5 followed him. Thereafter, he heard a cry from inside the house. After two minutes, the deceased came out of the house with a Crl.Appeal No.1129/2018 -:11:- bleeding chest and told him that the appellant stabbed him. The deceased took a few steps and fell on the floor. After half an hour, PW11 Thampan and one Joy came to the house and took the deceased into an auto to the Karunagapally Government Hospital, where he was reported dead later. He identified MO1 and MO2. PW3, the daughter of PW1, also deposed in tune with the evidence given by PW1.

12. The learned counsel for the appellant submitted that it has come out in the evidence that PW1 was not on good terms with the appellant, and hence, his evidence cannot be relied on. The counsel further submitted that PW5 spoke against the appellant at the instance of PW1. We are unable to subscribe to the said argument. PW5 deposed that PW1 and the appellant were on cordial terms. It is settled that the credibility of a witness is not to be judged merely on the basis of his strained relationship with the accused1. PW5 categorically deposed that she has the same bond towards the appellant and the deceased. No mother 1 Kapildeo Mandal & Others v. State of Bihar, AIR 2008 SC 533 Crl.Appeal No.1129/2018 -:12:- would unnecessarily implicate her own son in the murder of her other son. Her evidence appears to be quite natural and reliable. She deposed the way in which the appellant assaulted the deceased and the nature of the weapon (MO2) which had been used and part of the body of the deceased where the injury was inflicted. She identified the weapon before the police as well as before the court. There is nothing to disbelieve the evidence of PW5. Nothing has been elicited in the cross-examination of PWs1 and 3 also to disbelieve their evidence regarding the incident. PWs1, 3 and 5 have given reliable, consistent and credible versions of the crime, and their evidence inspires confidence. All of them identified the appellant at the dock as well as MO1 and MO2 weapons. On perusal of their evidence, we could not find any material contradictions or omissions. It is pertinent to note that their presence at the place of the incident was not challenged by the defence during cross-examination. Therefore, we hold that the evidence of PWs1, 3 and 5 can be safely relied on to prove the incident and to fix the culpability on the Crl.Appeal No.1129/2018 -:13:- appellant. Ext.P1 FIS given immediately after the incident corroborates the testimony of PW1.

13. Much reliance is placed by the prosecution on the statement of the deceased made to PW1 that it was the appellant who stabbed him. PW1, PW3 and PW5 clearly deposed that immediately after the incident, the deceased came out of the house and told PW1 that the accused/appellant stabbed him. PW1 has stated so in Ext.P1 as well. The said portion in the FI statement has been separately marked as Ext.P1(a).

14. Sections 6 and 32 of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae. The essence of the doctrine of res gestae is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of Crl.Appeal No.1129/2018 -:14:- such statement or fact in relation to the fact in issue. It is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter2. Illustration (a) to the said section is important, and it reads thus: "A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by - standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."

15. Section 32 of the Evidence Act deals with the cases in which statement of relevant fact by person who is dead or cannot be found etc., is relevant. Clause (1) of Section 32 makes relevant what is generally described as a dying declaration. It essentially means a statement made by a person as to the cause of his death or as to the circumstance of the transaction resulting in his death. The principle on which this species of evidence is admitted in evidence is indicated in legal maxim “Nemo 2 Gentela Vijayavardhan Rao and Another v. State of A.P., AIR 1996 SC 2791 Crl.Appeal No.1129/2018 -:15:- moriturus praesumitur mentire” - a man will not meet his maker with a lie in his mouth.

16. Though a dying declaration is entitled to great weight, it should be of such a nature as to inspire full confidence of the court in its correctness. The court must be satisfied that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant3. If the court finds that the incriminatory dying declaration brings out the truthful position, particularly in conjunction with the capacity of the deceased to make such declaration, the voluntariness with which it was made was established, and the other evidence supports its contents, it can be acted upon4. Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence5. Dying declaration can be the sole basis