Partly allowed

Kurian, S/O.Varkey v. State of Kerala

Kerala HC1 Oct 2019CRL.A/207/2004

Case brief

AI extract

What is this about?

A fatal chopper assault during a sudden quarrel attracted Section 304 Part II rather than Part I IPC. The court rejected private defence, upheld convictions under Sections 324 and 326, and partly allowed the appeal by altering the homicide conviction and reducing imprisonment, with substantive sentences running concurrently.

What did the court decide?

Homicide conviction altered to Section 304 Part II IPC with five years' rigorous imprisonment; Sections 326 and 324 terms reduced to one year and six months, concurrently; set-off granted.

Kurian, S/O.Varkey Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

¶4

TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941

¶5

CRL.A.No.207 OF 2004

¶6

SESSIONS CASE NO.390/2002 OF SESSIONS JUDGE, EKM

¶7

APPELLANT/ACCUSED:

¶8

KURIAN, S/O.VARKEY AANIKKUZHIYIL HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE

¶9

BY ADVS. SRI.B.RAMAN PILLAI SRI.ANIL K.MOHAMMED SRI.R.ANIL SRI.DELVIN JACOB MATHEWS SRI.GEORGE PHILIP SRI.RAJU RADHAKRISHNAN

¶10

RESPONDENT/COMPLAINANT:

¶11

STATE, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

¶12

PUBLIC PROSECUTOR SRI.MADHU.K.P.

¶13

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.08.2019, THE COURT ON 01.10.2019 PASSED THE FOLLOWING:

Crl.A.No.207/2004

“CR”

R.NARAYANA PISHARADI, J

¶18

************************ Crl.A.No.207 of 2004

¶19

Dated this the 1^st day of October, 2019

¶20

J U D G M E N T

¶21

The appellant is the sole accused in the case S.C.No.390/2002 of the Court of Session, Ernakulam. Conviction entered and sentence passed against him under Sections 326 and 324 and the first part of Section 304 of the Indian Penal Code are assailed in this appeal.

¶22

The prosecution case is as follows: There was a case registered against the appellant alleging that on 01.06.1999 he had committed rape on the daughter of PW1. On 19.08.1999, the appellant went to the house of PW1 to have a talk of settlement of the aforesaid case. Boss, the son of the sister of PW1, then reached the house. He was totally opposed to any compromise in the matter. A wordy altercation took place between him and the appellant. They went out of the house of

¶23

Crl.A.No.207/2004

¶24

¶25

PW1 and reached the nearby pathway. Then, the appellant took out a chopper, which was concealed behind his body under the shirt, and he struck a blow with it on the neck of the deceased. He also assaulted PW1 to PW3 with the chopper and beat PW1 and PW4 with a stick and caused hurt to them. The deceased

¶26

was taken to a hospital but he succumbed to the injury sustained on the neck. The incident took place at about 19.00 hours on 19.08.1999.

¶27

PW21 Sub Inspector recorded Ext.P1 first information statement of PW1 at 22.00 hours on 19.08.1999 at the hospital. On the basis of that statement, Ext.P21 first information report was registered as Crime No.108/1999 of Oonnukal police station. PW23 Circle Inspector conducted the investigation of the case. After completing the investigation, he filed charge sheet against the appellant for the offences punishable under Sections 302, 326 and 324 of the Indian Penal Code.

¶28

The trial court framed charge against the appellant for the offences mentioned above. The accused pleaded not guilty

¶29

Crl.A.No.207/2004

¶30

¶31

and claimed to be tried.

¶32

During the trial of the case, PW1 to PW23 were examined and Exts.P1 to P22 and MO1 to MO5 were marked on the side of the prosecution.

¶33

The appellant filed a statement after his examination under Section 313 Cr.P.C. In the aforesaid statement, he pleaded as follows: The rape case registered against him was false. At the instance of PW1 and his relatives, he had gone to the house of PW1 for having a talk of settlement of that case. Both sides agreed to settle the aforesaid case. When he came out of the house of PW1 and reached the pathway, he was attacked by some persons and he sustained injuries on his body. He could obstruct some of the blows and somehow he escaped from there. There was a melee occurred in darkness. He was not armed with chopper or any other weapon. He is innocent.

¶34

On the side of the appellant, two witnesses were examined as DW1 and DW2 and Exts.D1 to D21 were marked. Ext.C1 document was also marked at his instance.

¶35

Crl.A.No.207/2004

¶36

¶37

8. The learned Sessions Judge found that the prosecution

¶38

was able to prove the alleged incident beyond reasonable doubt. Learned Sessions Judge rejected the plea of private defence raised by the appellant. However, the learned Sessions Judge found that there was grave and sudden provocation from the deceased which deprived the appellant of his power of self control and that the act of the appellant causing fatal injury to the deceased does not amount to an offence punishable under Section 302 I.P.C but it only amounts to an offence punishable under the first part of Section 304 I.P.C. Learned Sessions Judge also found that the appellant committed the offences punishable under Sections 324 and 326 I.P.C. Thus the appellant was convicted of the offences punishable under Sections 324 and 326 and the first part of Section 304 I.P.C. He was sentenced to rigorous imprisonment for a period of ten years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 304 Part I I.P.C and to undergo

¶39

Crl.A.No.207/2004

¶40

¶41

rigorous imprisonment for different terms and also to pay fine for the offences punishable under Sections 324 and 326 I.P.C. The substantive sentences of imprisonment were ordered to be run concurrently.

¶42

Heard Sri.B.Raman Pillai, learned senior counsel for the appellant and also the learned Public Prosecutor and perused the records.

¶43

PW20 is the doctor who conducted autopsy. His evidence, along with Ext.P20 postmortem certificate issued by him, reveals that the deceased had sustained only the following injury.

¶44

“Incised gaping wound 13 x 4 x 7 cm on the left side of neck. Its front end was 7.5 cm behind chin and 4.5 cm above the inner end of collar bone and 2 cm outer to midline. Its back end was placed 8.5 cm below the posterior hair line margin and 2 cm to the left of midline. The muscles, blood vessels and nerves of the neck were cut. The 7^th cervical vertebra showed a cut fracture 2 x 1.5 cm, the spinal cord was exposed and its fibres showed laceration.”

¶45

PW20 has deposed that death of the deceased was

¶46

Crl.A.No.207/2004

¶47

¶48

due to the above mentioned injury sustained on the neck. There is no reason to disbelieve his evidence in this regard. The evidence of PW20 is not challenged by the defence on any ground. His evidence proves that the deceased had died due to the injury sustained on the neck, which is mentioned in Ext.P20 autopsy report. This is a clear case of homicide.

¶49

PW1 to PW7 are the occurrence witnesses examined by the prosecution to prove the alleged incident. PW1 is the sister of the mother of the deceased. PW2 is the mother of the deceased. PW3 is the daughter of PW2. PW4 is the husband of PW1. PW5 is a neighbour of the deceased. PW6 is the wife of the deceased. PW7 is the son of PW1 and PW4.

¶50

Out of the above mentioned seven occurrence

¶51

witnesses examined by the prosecution, PW4 to PW7 turned hostile to the prosecution. They denied having seen the incident. PW4 has deposed that he sustained injury on his left hand due to

¶52

beating with a stick. But he would say that he did not see who had beaten him. PW5 has also deposed that he did not see the

¶53

Crl.A.No.207/2004

¶54

¶55

incident. He has categorically stated that he did not see the appellant striking any blow on the deceased with a chopper. PW6, though she was the wife of the deceased, completely turned hostile to the prosecution. She also deposed that she did not see the incident. PW7 would say that he only saw the deceased being taken to the hospital. There is nothing in the evidence of PW4 to PW7 to find that the appellant had caused the fatal injury on the body of the deceased.

¶56

PW1 has deposed that on 19.08.1999, at 18.00 hours, the appellant came to her house and enquired about the deceased. After some time, the deceased reached the house. PW1 has deposed that, at the pathway in front of the house, there occurred a wordy altercation between the appellant and the deceased. The subject matter of their talk was the rape case against the appellant.

¶57

PW1 has categorically stated that she did not see the appellant cutting the deceased. She would say that she came out of the house on hearing sound and she saw the deceased

¶58

Crl.A.No.207/2004

¶59

¶60

lying on the ground. She has stated that she did not see what happened. PW1 has deposed that she sustained injury on her head. She would say that the appellant cut on her head with a chopper and caused the injury.

¶61

The prosecution has got a case that the appellant had caused hurt to PW1 by beating her with MO5 stick. But, PW1 has stated that she did not receive beating with any stick.

¶62

PW1 has deposed that she had given statement, as contained in Ext.P1, to the police. She admitted her signature in Ext.P1 first information statement.

¶63

PW1 was declared hostile to the prosecution. There is nothing in her evidence to find that the appellant had cut the deceased with a chopper and inflicted the fatal injury on him.

¶64

Ext.P15 is the wound certificate issued by Dr.K.I.Kuriakose, the doctor who had eamined PW1 at the hospital at 20.30 hours on 19.08.1999. Since Dr.K.I.Kuriakose who issued Ext.P15 certificate could not be examined, another doctor who was familiar with the handwriting and signature of

¶65

Crl.A.No.207/2004

¶66

¶67

Dr.K.I.Kuriakose, was examined as PW19 to prove the certificate. Likewise, Exts.P19 and P16 wound certificates issued by Dr.K.I.Kuriakose in respect of PW2 and PW3 were also got marked through PW19. It is seen that the defence had objected to the marking of the wound certificates issued by Dr.K.I.Kuriakose through PW19.

¶68

The prosecution could not examine Dr.K.I.Kuriakose because he was sick and not in a position to appear before the court. PW19 has deposed that Dr.K.I.Kuriakose was aged 70 years at that time. It was in such a situation that the prosecution

¶69

got the wound certificates marked through PW19 who was working in the same hospital and who was familiar with the handwriting and signature of Dr.K.I.Kuriakose.

¶70

Section 32(2) of the Indian Evidence Act provides that when a statement, written or verbal, of relevant facts is made by a person in the discharge of professional duty, and if such person has become incapable of giving evidence or his attendance cannot be procured without unreasonable delay, such statement

¶71

Crl.A.No.207/2004

¶72

¶73

is relevant and admissible (See Prithi Chand v. State of Himachal Pradesh : AIR 1989 SC 702 ). A wound certificate, being a document containing the previous statement of a doctor who examined the injured or the patient, can be used only to corroborate his statement under Section 157 or to contradict his statement under Section 145 or to refresh his memory under Section 159 of the Evidence Act. But, Section 32(2) of the Evidence Act is an exception to this principle. If the doctor is not available for examination under the circumstances mentioned in Section 32 of the Evidence Act, the certificate issued by him is relevant and admissible. Section 67 of the Evidence Act speaks of the mode of proof of a document. Under Section 67, if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. When the prosecution is not able to procure the attendance of the doctor who had examined the injured and issued the wound certificate

¶74

Crl.A.No.207/2004

¶75

¶76

without unreasonable delay or expense, a statement coming under Section 32(2) of the Evidence Act has to be proved by one of the various modes prescribed in Section 47 of that Act (See

¶77

Kochu v. State of Kerala : 1979 KLT 550 ).

¶78

The evidence of PW19, along with Ext.P15 wound certificate, shows that PW1 had sustained an incised injury over the vault of the scalp having a depth of two inches. It is stated in Ext.P17 discharge summary issued from the hospital in respect of PW1 that there was fracture to her frontal bone.

¶79

No doubt, medical evidence corroborates the evidence

¶80

of PW1 that she sustained injury on the head with a chopper. However, her evidence that the appellant inflicted the injury on her head with a chopper, cannot be accepted as reliable and trustworthy. She has only made a bald statement in the witness box that the appellant cut her on the head with a chopper. She has not stated anything about the circumstances under which the appellant attacked her with a chopper. She has not stated that she had gone to the spot where the appellant and the deceased

¶81

Crl.A.No.207/2004

¶82

¶83

were engaged in a wordy altercation. She is completely unaware as to how and in what manner the deceased had sustained the fatal injury on the neck. PW1 would even state that she did not see the injury on the neck of the deceased. It is not at all safe to place implicit reliance upon the testimony of such a witness.

¶84

PW1 has stated on cross-examination that her statement was recorded by the police on 20.08.1999 and that she signed Ext.P1 statement only on that day. However, PW21 Sub Inspector has given evidence that he recorded Ext.P1 statement at 22.00 hours on 19.08.1999. As noticed earlier, PW1 has admitted that she had given a statement to the police as contained in Ext.P1. She also admitted her signature in it. She is a witness won over by the defence. In such circumstances, based on the evidence given by her that she gave the statement to the police only on 20.08.1999, it cannot be found that Ext.P21 first information report is an ante-timed document.

¶85

PW2 is the mother of the deceased. She has deposed

¶86

Crl.A.No.207/2004

¶87

¶88

that the incident took place at 19.00 hours on 19.08.1999. She would say that she saw the appellant and the deceased talking with each other at the way in front of her tharavad house about the rape case registered against the appellant. The deceased was not amenable to compromise the case against the appellant. PW2 has deposed that the appellant took out the chopper which was kept inside his shirt and he struck the deceased on the neck with it. Thereafter, the appellant cut Giji (PW3) with the chopper. PW2 would say that, thereafter, the appellant also cut her with the chopper and caused injury to her on the left and the right thumbs and the left and the right wrists. PW2 identified MO1 in the court as the chopper used by the appellant. PW2 has further deposed that it was when the appellant waved the chopper after inflicting the blow on the deceased that Giji (PW3) sustained injury. PW2 has stated on cross-examination that she did not see anybody at the spot who was armed with any stick. She would say that she did not see the appellant beating any person with any stick.

¶89

Crl.A.No.207/2004

¶90

¶91

Ext.P19 wound certificate, which was proved through

¶92

PW19 doctor, shows that PW2 was examined by the doctor at the hospital at 20.30 hours on 19.08.1999. Ext.P19 shows that PW2 had sustained lacerated injury on both hands between thumb and index finger and that the thumbs of both hands had displaced. Ext.P19 shows that, on X-ray examination it was revealed that, there was fracture to the left metacarpal bone and there was near total amputation of the right hand thumb.

¶93

Medical evidence corroborates the testimony of PW2 that she sustained injury on the thumbs of both hands. But, there is no medical evidence to prove that she had sustained any injury on her wrists.

¶94

PW3 is the daughter of PW2 and the sister of the deceased. She has deposed that the incident took place on 19.00 hours on 19.08.1999 at the way in front of the tharavad house. PW3 has stated that wordy altercation occurred between

¶95

the appellant and the deceased regarding the rape case registered against the appellant. PW3 has deposed that the

¶96

Crl.A.No.207/2004

¶97

¶98

appellant took out the chopper which was kept behind his shirt and struck on the neck of the deceased with it. PW3 would say that the appellant also cut her with the chopper and she sustained injury above the left ear. PW3 identified MO1 in the court as the chopper which was used by the appellant. She has deposed that the appellant also cut PW1 with the chopper. PW3 has stated on cross-examination that she did not see anybody assaulting PW4. PW3 would further state that she did not see PW1 sustaining injury during the incident.

¶99

Ext.P16 wound certificate, which was proved through

¶100

PW19 doctor, shows that PW3 was examined by the doctor at the hospital at 20.30 hours on 19.08.1999. Ext.P16 certificate shows that PW3 had sustained an incised irregular shaped deep injury over the parietal region, just above the left ear, measuring 10 inches long. Thus, medical evidence corroborates the testimony of PW3 that she had sustained injury above the left ear with a chopper.

¶101

The evidence of PW2 and PW3 is consistent to the effect

¶102

Crl.A.No.207/2004

¶103

¶104

that the appellant inflicted the fatal injury on the neck of the deceased with MO1 chopper. There are no material contradictions in their evidence on that aspect. Their evidence is also consistent to the effect that the appellant struck them with the chopper, causing injury to them. Medical evidence corroborates the testimony of PW2 that she sustained injuries on the thumbs of both hands with a chopper. There was near total amputation of her right thumb. Medical evidence also corroborates the testimony of PW3 regarding the injury sustained by her.

¶105

While appreciating the evidence of a witness, the approach must be whether the testimony of the witness, read as a whole, appears to have a ring of truth. Once that impression is found, it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out and evaluate them. Minor discrepancies on trivial matters, not touching the core of the case, cannot be given undue importance. When the trial court, before whom the witnesses gave evidence, had the opportunity to form the opinion

¶106

Crl.A.No.207/2004

¶107

¶108

about the general tenor of such evidence, the appellate court, which had not that benefit, will have to attach due weight to the appreciation of evidence by the trial court. It would not be proper for the appellate court to reject the testimony of witnesses on the ground of variations or infirmities on trivial details. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short - coming from which no criminal case is free. What is to be considered is whether the inconsistencies or contradictions go to the root of the matter or whether they pertain to insignificant aspects.

¶109

The discrepancies in the deposition of witnesses may occur due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to their life. Discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination. Such

¶110

Crl.A.No.207/2004

¶111

¶112

discrepancies are hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case. Very often, witnesses make improvements at the trial in order to give a boost to the prosecution case. Then, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to make attempt to separate the chaff from the grain. When scanning the evidence of various witnesses, discrepancies in details, contradictions in narrations and embellishments in inessential parts, cannot militate against the veracity of the core of the testimony, if there is an impression of truth in it. The court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Although the benefit of every reasonable doubt should be given to the accused, the court should not reject trustworthy evidence on grounds which are fanciful or in the nature of conjectures.

¶113

PW2 and PW3 are witnesses closely related to the deceased. PW2 is the mother and PW3 is the sister of the

¶114

Crl.A.No.207/2004

¶115

¶116

deceased. It does not mean that they are interested witnesses. Their evidence cannot be discarded merely on account of their relationship with the deceased.

¶117

A close relative, who is a natural witness, cannot be regarded as an interested witness. The term ‘interested’ postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason (See Kartik Malhar v. State

¶118

of Bihar: (1996) 1 SCC 614 and Dalbir Kaur v. State of Punjab : AIR 1977 SC 472 ). Ordinarily, a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. The mere fact of relationship, far from being a foundation for false implication is often a sure guarantee of truth (See Dalip Singh v. State of Punjab: AIR 1953 SC 364 ). There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate

¶119

Crl.A.No.207/2004

¶120

¶121

the accused ( Harbans Kaur v. State of Haryana: AIR 2005 SC 2989 ). A close relative cannot be characterised as an

¶122

“interested” witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence.

¶123

PW2 and PW3 are witnesses who got injured in the incident. Therefore, their presence at the spot of the incident at the relevant time, cannot be doubted. The testimony of an injured witness has its own relevance and efficacy. The injured witness stands on higher pedestal than an ordinary eye-witness. The fact that the witness sustained injuries at the time and place of occurrence lends support to his testimony that he was present during the occurrence. Normally, injured witnesses would not implicate wrong persons to the crime so as to allow the real culprits to escape unpunished. The testimony of the injured

¶124

Crl.A.No.207/2004

¶125

¶126

witness is accorded a special status in law . The testimony of an injured witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant in order to falsely implicate someone. He will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Convincing evidence is required to discredit an injured witness. Deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies. (See Abdul Sayeed v State of M.P : (2010)10 SCC 259 ).

¶127

Of course, PW2 and PW3 have not given evidence regarding the entire incident alleged by the prosecution. There are also minor embellishments in their evidence. They have not deposed with regard to the presence of PW4 at the spot of the incident. Even if it is accepted that part of their testimony is not reliable, it is not a sufficient ground to discard their entire

Crl.A.No.207/2004

evidence.

The maxim 'falsus in uno, falsus in omnibus' (false in one thing, false in everything) is not a sound rule to be applied in India. It is the duty of the Court, in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then the court should uphold the prosecution case to the extent it is considered safe and trustworthy (See Ranbir v. State of Punjab : AIR

¶132

1973 SC 1409 ).

¶133

Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conviction can be maintained. It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material

¶134

Crl.A.No.207/2004

¶135

¶136

particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" is merely a rule of caution. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not a mandatory rule of evidence. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respect as well. One hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishment. An attempt has to be made to separate truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing

¶137

Crl.A.No.207/2004

¶138

¶139

essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto (See Jayaseelan v. State of Tamil Nadu : AIR 2009 SC 1901 ).

¶140

In the instant case, the presence of PW2 and PW3 at the spot of the occurrence at the relevant time cannot be doubted. They are witnesses who got injured in the incident. The testimony of PW2 regarding the injuries sustained by her is partially corroborated by medical evidence. The testimony of PW3 regarding injuries sustained by her is fully corroborated by medical evidence. The evidence of PW2 and PW3 is consistent as to the act of the appellant inflicting the fatal injury on the neck of the deceased with MO1 chopper. There is no material discrepancy or contradiction in their evidence on that aspect . If the evidence of PW2 and PW3 is appreciated as a whole, it can be found that it has got a ring of truth. There is no sufficient ground to disbelieve their evidence that the appellant inflicted the fatal

¶141

Crl.A.No.207/2004

¶142

¶143

injury on the neck of the deceased with MO1 chopper and also that he caused hurt to them by cutting with that weapon.

¶144

PW23 Circle Inspector, who conducted the investigation of the case, has deposed that he seized the chopper, which was suspected to be involved in the commission of the offence, as per Ext.P11 mahazar. However, MO1 was not shown to PW23 during his examination and it was not got identified by him as the chopper which was seized by him. The chopper was seized from an open space in the compound of the house of a stranger. It is stated in Ext.P11 mahazar that PW23 got information that the chopper was lying at the place mentioned therein. PW23 has not given any evidence as to the person who gave such information or how he got such information or who had pointed out the chopper to him.

¶145

PW8 was examined by the prosecution to prove that the appellant was seen proceeding from the spot of the incident with a chopper and a stick in his hands. PW8 is the brother of the deceased. He has deposed that he saw the deceased lying on the

¶146

Crl.A.No.207/2004

¶147

¶148

ground with injury, but he did not see the appellant striking the deceased. PW8 has deposed that he saw the appellant proceeding from the spot of the incident with a chopper and stick in his hands and there was blood on the chopper. PW8 would however say that the appellant waved the chopper towards him and he (PW8) avoided the blow and that he (PW8) caught hold of the appellant and took the chopper from his hand and threw it away to the nearby compound.

¶149

The evidence of PW8 is not at all reliable and trustworthy. PW8 had not given statement to the police that he seized the chopper from the possession of the appellant and threw it away. It is a material omission which affects the credibility of the evidence of PW8.

¶150

PW16 is an attestor to Ext.P11 mahazar prepared by PW23 for seizure of MO1 chopper. PW16 also did not identify MO1 in the court as the chopper seized by the police. As per Ext.P11 mahazar, the chopper was seized from the compound of the house of a person. But, PW16 has deposed that he signed

¶151

Crl.A.No.207/2004

¶152

¶153

Ext.P11 mahazar at the police station. PW16 was not declared hostile to the prosecution. In these circumstances, his evidence is not useful to the prosecution in any manner.

¶154

The evidence of PW8, PW16 and PW23 gives an impression that seizure of MO1 chopper by PW23 as per Ext.P11 mahazar from the compound of the house of a stranger was artificial. As noticed earlier, PW23 has not given evidence as to how he got information that the chopper was lying at the place mentioned in Ext.P11 mahazar. PW8 was questioned by PW23 only on 21.08.1999. As per Ext.P11 mahazar, the chopper was seized on 20.8.1999. Therefore, PW23 could not have got information regarding the chopper from PW8.

¶155

The fact that, evidence regarding the seizure of MO1 chopper is not reliable and trustworthy, does not affect the credibility of the evidence of PW2 and PW3 in any manner. PW2 and PW3 have identified MO1 in the court as the chopper used by the appellant to attack them and the deceased. Their evidence in that regard has not been challenged in the cross-examination.

¶156

Crl.A.No.207/2004

¶157

¶158

In this context, it is to be pointed out that, in a given case, if direct evidence regarding the occurrence is convincing and clinching, non-recovery of the weapon of offence itself may be immaterial (See Yogesh Singh v. Mahabeer Singh : AIR 2016 SC 5160 )

¶159

PW9 was examined by the prosecution to prove that the appellant was seen proceeding from the spot of the incident with MO5 stick in his hand. PW9 has deposed that he saw the appellant coming with MO1 stick in his hand and that he (PW9) caught hold of the appellant and there occurred a scuffle and then the appellant threw away the stick.

¶160

PW23 has given evidence that on the basis of the information given to him by the appellant, along with the appellant, he reached the place where the appellant had put the stick and that the appellant took the stick and gave it to him and that he (PW23) seized it as per Ext.P8 mahazar. PW13 is an attestor to Ext.P8 mahazar. He identified his signature in it. He has deposed that he saw the police seizing the stick.

¶161

Crl.A.No.207/2004

¶162

¶163

According to the prosecution case, PW1 and PW4 are the persons who had sustained injury on account of beating given by the appellant with MO5 stick. However, PW1 has deposed that she did not sustain any injury due to beating with any stick. PW4, who would say that he had sustained injury on account of beating with a stick, has deposed that he could not state who had beaten him with the stick. PW4 also did not identify MO5 in the court as the stick with which he was beaten. Since there is absolutely no evidence to find that the appellant had beaten PW1 or PW4 with any stick, the evidence regarding the recovery MO5 stick has no relevance in the case.

¶164

PW10 has deposed that he reached the spot of the incident hearing a cry and then he saw the deceased lying there with injury on his neck. PW10 would say that he saw PW2 and PW3 there with injuries on their body. PW10 has deposed that PW2 then stated that Kurian (the appellant) had cut the deceased.

¶165

The trial court has found that PW10 is a natural and

¶166

Crl.A.No.207/2004

¶167

¶168

truthful witness. The trial court has found that, the evidence of PW10 regarding the statement made by PW2 that the appellant cut the deceased, is relevant as res gestae under Section 6 of the Indian Evidence Act.

¶169

Section 6 of the Evidence Act states that facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration (a) to the said section is important and it is extracted below:

¶170

"A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating or so shortly before or after it as to form part of the transaction, is relevant fact."

¶171

The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae. Section 6 of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible. For bringing such hearsay evidence within the ambit of Section 6, what is required to be

¶172

Crl.A.No.207/2004

¶173

¶174

established is that the statements sought to be admitted, as forming part of res gestate, must have been made contemporaneously with the acts or immediately thereafter. 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 on fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. It is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter. But, if there was an interval, however slight it may be, which was sufficient enough for fabrication, then the statement is not part of res gestae (See

¶175

Gentela Vijayavardhan Rao v. State of A.P : AIR 1996 SC 2791 ).

¶176

PW10 had not seen the incident. He reached the scene

¶177

Crl.A.No.207/2004

¶178

¶179

immeadiately after the incident. He saw the deceased lying on the ground with injury on the neck. At that time, if PW2 had told PW10 or if she had volunteered, that the appellant cut the deceased, the statement so made by her would be relevant and admissible under Section 6 of the Evidence Act. But then the court must be assured of two aspects, that is, reliability of the evidence and accuracy of the contents of the pronouncement.

¶180

The testimony of PW10 that, he heard PW2 saying

¶181

that the appellant cut the deceased, cannot be accepted as reliable and trustworthy. The reason is that PW2 has not given any evidence that she made such a statement after PW10 reached the scene of the incident. What PW2 has stated in the cross-examination is that when the appellant cut her, she cried aloud stating that Kurian (the appellant) cut. Admittedly, PW10 was not present at the spot of the incident when the appellant assaulted PW2 with the chopper. The trial court has misread and twisted the evidence of PW2 and PW10 to find that PW2 had made a voluntary statement that the appellant cut the deceased.

¶182

Crl.A.No.207/2004

¶183

¶184

PW10 has categorically stated on cross-examination that it was when he asked PW2 as to what happened that PW2 told him that the appellant cut the deceased. Therefore, it cannot be found that PW2 had made any voluntary statement that the appellant cut the deceased. At any rate, PW2 has not given any evidence that she made such a statement at the spot of the incident after PW10 reached there. In these circumstances, the evidence of PW10 only proves that he saw the deceased lying on the ground with injury on the neck and that he saw PW2 and PW3 also there with injuries on their body.

¶185

Learned senior counsel for the appellant contended that the trial court has erroneously rejected the plea of private defence of body raised by the appellant. Learned senior counsel also contended that the appellant had sustained injuries during the incident, but the prosecution failed to explain the cause of the injuries sustained by him and also that the prosecution has suppressed the origin and genesis of the occurrence.

¶186

Section 96 I.P.C declares that nothing is an offence

¶187

Crl.A.No.207/2004

¶188

¶189

which is done in the exercise of the right of private defence. Section 97 I.P.C states that a person has a right, subject to restrictions, to defend his body as well as property against specified offences. Section 100 I.P.C deals with the circumstances under which private defence of the body extends to causing death of the aggressor. Section 101 I.P.C deals with cases where such right does not extend to causing of death. Section 102 I.P.C deals with the commencement and continuance of the right of private defence of person.

¶190

The appellant had not specifically raised the plea of private defence before the trial court. But, it is not necessary for the accused to specifically plead in so many words that he acted in self defence. In order to make out a case of private defence, the accused need not plead it in specific terms. If the circumstances justify an inference with regard to such a right, the Court must examine that possibility as well (See Udaykumar

¶191

v. State of Maharashtra : AIR 2008 SC 2064 ). If the circumstances show that the right of private defence was

¶192

Crl.A.No.207/2004

¶193

¶194

legitimately exercised, it is open to the court to consider such plea. It is trite that in a given case, the court can consider it even if the accused has not taken that plea, if the same is available to be considered from the materials on record. Even the absence of such a plea in the statement under Section 313 Cr.P.C will not disentitle the accused of that right, if it can be made out otherwise.

¶195

The plea raised by the appellant in the written statement filed by him is that when he came out of the house of PW1, after having the talk of compromising the rape case registered against him, some persons attacked him and as a result, he sustained injuries on his body. But he has specifically pleaded that he was not armed with any chopper. The suggestion made to PW1 in the cross-examination is that the deceased, armed with a chopper, had followed the appellant when he went out of the house of PW1 and that the deceased had entered into an altercation with the appellant. A suggestion on similar lines was made to PW2 and PW3 also in the cross-

Crl.A.No.207/2004

examination.

In this context it is to be considered whether the appellant had sustained any injuries during the incident that occurred. If the deceased had attacked the appellant with any chopper or other weapon, the appellant would have sustained severe injuries. But, there is absolutely no evidence to find that he had sustained any injuries which could have been caused by a sharp edged weapon. If he had sustained any such injuries he would have undergone treatment in a hospital. There is no medical evidence to find that the appellant had sustained injuries which could have been inflicted by a sharp edged weapon.

¶200

The appellant had surrendered before the court on 23.08.1999. Thereafter, on 03.09.1999, PW23 Circle Inspector had obtained the appellant in his custody. It was during the period when the appellant was in police custody, he was examined by a doctor. Ext.D21 is the wound certificate issued by the doctor after examining the appellant at 14:50 hours on 03.09.1999. Ext.D21 wound certificate shows that the appellant

¶201

Crl.A.No.207/2004

¶202

¶203

had sustained the following injuries: (1) A scar on the occipital area of scalp. (2) Abrasion, 3 x 2 cm, below left elbow, partially healed. (3) A scar, 1 ½ x 1 cm, on the dorsum of left wrist. (4) A scar, 1 x 1cm on the dorsum of left hand. (5) A scar, ½ x ½ cm, on the dorsum of left third knuckle. (6) A scar (1cm) near the tip of the left index finger. The doctor has noted in Ext.D21 certificate that the above injuries were about two weeks old.

¶204

There is absolutely no evidence to find that the aforesaid injuries were sustained by the appellant during the course of the incident. The injuries sustained by the appellant were trivial and superficial in nature. If he had been attacked by several persons, as alleged by him, he would have sustained more severe injuries.

¶205

Even if it is accepted that the appellant had sustained the injuries mentioned in Ext.D21 wound certificate during the course of the same incident, non-explanation of the injuries by the prosecution need not be fatal to the prosecution case. The prosecution is not obliged to explain the injuries on the person of

¶206

Crl.A.No.207/2004

¶207

¶208

the accused in all cases and in all circumstances. It depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused ( Bhaba Nanda Sarma v. State of Assam : AIR 1977 SC 2252 ). Non-explanation of injuries by the prosecution will not affect the prosecution case where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries (See Siri Kishan v. State of Haryana : (2009) 12 SCC 757 ). If the defence has not put questions to the prosecution witnesses regarding the injuries sustained by the accused, there will not be any occasion for the prosecution witnesses to explain the injuries on the person of the accused ( Ramlagan Singh v. State of Bihar : AIR 1972 SC 2593 ).

¶209

It is true that where serious injuries are found on the

¶210

Crl.A.No.207/2004

¶211

¶212

person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution two conditions must be satisfied: (1) that the injuries on the person of the accused must be very serious and severe and not superficial; (2) that it must be shown that these injuries must have been caused at the time of the occurrence in question

¶213

( Jagdish v. State of Rajasthan : AIR 1979 SC 1010 ). It is not an invariable rule that the prosecution has to explain the injuries sustained by the accused. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubt. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of obligation of the prosecution to explain the injuries sustained by the accused will not arise. When

¶214

Crl.A.No.207/2004

¶215

¶216

the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused (See

¶217

Hare Krishna Singh v. State of Bihar : AIR 1988 SC 863 ).

¶218

In Onkarnath Singh v. State of U.P : AIR 1974 SC

¶219

1550, it has been held as follows:

¶220

"Such non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinise their evidence with care. Each case presents its own features. In some case, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in

¶221

Crl.A.No.207/2004

¶222

¶223

the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established“ .

¶224

In the instant case, there is no reliable evidence to

¶225

find that the appellant had sustained the injuries noted in Ext.D21 wound certificate in the same incident. Even if it is assumed that he had sustained those injuries in the same incident, the aforesaid injuries were minor and trivial and superficial in nature and non-explanation of those injuries by the prosecution is not fatal to its case in view of the convincing and reliable evidence given by PW2 and PW3.

¶226

The appellant was carrying MO1 chopper with him. The deceased was not armed with any weapon. When death is caused, the person exercising the right of private defence of body must be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting. Here, the appellant was not under any reasonable apprehension of death or grievous hurt. The right of private defence is a defensive right. It is neither a right of aggression nor of reprisal. There is no right of

¶227

Crl.A.No.207/2004

¶228

¶229

private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger which is not self created. Necessity must be present, real or apparent (See Laxman Sahu v. State of Orissa:AIR 1988 SC 83 ). True, there is evidence to find that there was wordy altercation between the appellant and the deceased. Ext.C1 certificate of chemical analysis of the viscera of the deceased would indicate that the deceased had consumed alcohol. But, the fact remains that the deceased was not armed with any weapon and that the appellant had no apprehension of death or grievous hurt being caused by the deceased. The appellant was the aggressor. Then he cannot claim right of self defence. The right to defend does not include a right to launch an offensive or aggression. In my view, the trial court has rightly rejected the plea of private defence of body made by the appellant.

¶230

The appellant had examined two witnesses on his side

¶231

as DW1 and DW2. DW1 was examined by the appellant to prove

¶232

Crl.A.No.207/2004

¶233

¶234

that it was at the instance of the father of the deceased that the appellant had gone to the house of PW1 to settle the rape case registered against him. It is immaterial whether the appellant had gone to the house of PW1 on his own initiative or at the instance of the relatives of the victim of rape. What is material is the presence of the appellant at the time and place of the alleged incident which stands not disputed by him.

¶235

DW2 has deposed that when he heard a hue and cry from the pathway, he came out of his house to the courtyard and looked and then he heard the sound of a melee and that there might have been 10 to 12 persons there. DW2 has categorically stated on cross-examination that he did not see the incident in which the deceased sustained injury and that he does not know under what circumstances the deceased had sustained injury. In view of this categoric statement made by DW2, his evidence is not helpful to the appellant to prove the plea of private defence raised by him.

¶236

Crl.A.No.207/2004

¶237

¶238

The evidence of PW2 and PW3 proves beyond

¶239

reasonable doubt that the appellant caused grievous hurt to PW2 and simple hurt to PW3 with MO1 chopper which is a deadly weapon. The aforesaid acts of the appellant constitute the offences punishable under Sections 324 and 326 IPC. Therefore, conviction of the appellant by the trial court for the offences punishable under Sections 324 and 326 IPC is liable to be confirmed.

¶240

The act of the appellant causing death of the deceased constitutes the offence of culpable homicide. The trial court has found that the appellant had the intention of causing death or causing such bodily injury as is likely to cause death but there was grave and sudden provocation from the deceased which deprived the appellant of his power of self control and therefore, the act of the appellant constitutes only the offence punishable under Section 304 Part I IPC. The State has not filed any appeal against the acquittal of the appellant of the offence punishable under Section 302 IPC.

¶241

Crl.A.No.207/2004

¶242

¶243

The appellant was carrying with him MO1 chopper

¶244

when he went to the house of PW1. But, that fact cannot be found as an indication of his premeditation to cause the death of any person. He would have been very well aware of the fact that he was going to the house of the victim on whom he had allegedly committed rape. Naturally, he would have expected a hostile atmosphere there and as a precaution, he would have taken the chopper with him. But, no untoward incident happened inside the house where the compromise talk took place. The evidence in the case reveals that when the appellant came out of the house of PW1 after the compromise talk and when he reached the pathway in front of the house, the deceased and other relatives of the victim of rape had reached there by following him. There is also evidence to find that there occurred wordy altercation between the appellant and the deceased at the pathway. Ext.C1 report shows that the deceased had consumed alcohol. It is probable that he was intoxicated. The trial court

¶245

Crl.A.No.207/2004

¶246

¶247

has already found that there was grave and sudden provocation from the deceased which might have deprived the appellant of the power of self control. The appellant was in the midst of persons who had a hostile attitude towards him. It was during the altercation that ensued between the appellant and the deceased that the appellant took out the chopper and inflicted the fatal injury on the deceased. There was only a single blow struck by the appellant on the deceased with the chopper. If these circumstances are taken into consideration as a whole, it can be found that the appellant had no intention of causing the death of the deceased or causing any injury as is likely to cause death. He had inflicted the blow on the deceased with the chopper with the knowledge that his act was likely to cause death.

¶248

In order to attract Exception 4 to Section 300 I.P.C, the following ingredients have to be established: (i) The crime must be committed without premeditation;(ii) It must be committed in a sudden fight in the heat of passion upon a sudden

¶249

Crl.A.No.207/2004

¶250

¶251

quarrel;(iii) The offender should not have taken undue advantage;(iv) The offender should not have acted in a cruel or unusual manner (See Sita Ram v. State : AIR 2019 SC 3349 ).

¶252

The matter has to be viewed in this way. It is evident that there was no premeditation. The appellant attacked the deceased in the midst of a sudden quarrel and in the heat of passion. He did not take any undue advantage. He did not act in a cruel or unusual manner. Hence, Exception 4 to Section 300 I.P.C applies. The act of the appellant leading to the death of the deceased, having been done by him with the knowledge that it was likely to cause death, he deserves to be convicted for the offence punishable under Section 304 Part II I.P.C.

¶253

The discussion above leads to the conclusion that conviction of the appellant under Section 304 Part I IPC has to be altered to under Section 304 Part II IPC. Considering the facts and circumstances of the case, imposing a sentence of rigorous imprisonment for a period of five years and a fine of Rs.1,00,000/- on the appellant for the offence punishable under

¶254

Crl.A.No.207/2004

¶255

¶256

Section 304 Part II IPC would meet the ends of justice. The sentence imposed on the appellant by the trial court for the offences punishable under Sections 324 and 326 IPC is also liable

¶257

to be modified and reduced. Imposing a sentence of rigorous imprisonment for a period of one year and fine of Rs.10,000/- for

¶258

the offence punishable under Section 326 IPC and rigorous imprisonment for a period of three months and fine of Rs.5,000/for the offence punishable under Section 324 IPC would be proper in the circumstances of the case.

¶259

In the result :

¶260

(i) This appeal is allowed in part.

¶261

(ii) The conviction and sentence imposed on the

¶262

appellant/accused for the offence punishable under Section 304 Part I IPC are set aside.

¶263

(iii) The appellant/accused is found guilty of the

¶264

offence punishable under Section 304 Part II IPC and convicted thereunder.

¶265

(iv) In supersession of the sentence imposed on the

¶266

Crl.A.No.207/2004

¶267

¶268

appellant/accused under Section 304 Part I IPC, he is sentenced for the offence under Section 304 Part II IPC to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and in default of payment of fine, to undergo rigorous imprisonment for a period of one year.

¶269

(v) The conviction of the appellant/accused under Sections 324 and 326 IPC is upheld. The sentence imposed on the appellant/accused by the trial court for the offences punishable under Sections 324 and 326 I.P.C is modified and reduced. The appellant/accused is sentenced for the offence under Section 326 IPC to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/- (Rupees ten thousand only) and in default of payment of fine, to undergo rigorous imprisonment for a period of three months. He is sentenced for the offence under Section 324 IPC to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 5,000/- (Rupees five thousand only) and in default of payment of fine, to undergo

¶270

Crl.A.No.207/2004

¶271

¶272

rigorous imprisonment for a period of one month.

¶273

(vi) If the fine amount is realised, Rs.1,00,000/-

¶274

(Rupees one lakh only) shall be paid to PW2 Rosa, the mother of the deceased, as compensation.

¶275

(vii) The substantive sentences of imprisonment shall

¶276