Partly allowed

Priyan v. State of Kerala

Kerala HC17 Sept 2020CRL.A/763/2016

Case brief

AI extract

What is this about?

Convictions for murder, attempted murder and disappearance of evidence arising from knife attacks on a son and his intervening father were upheld. The court reduced the Section 307 IPC sentence from life imprisonment to four years, maintained the remaining conviction and sentence, and directed concurrent substantive sentences.

What did the court decide?

Section 307 IPC life sentence reduced to four years' imprisonment; substantive sentences directed to run concurrently.

Priyan Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942

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CRL.A.No.763 OF 2016

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AGAINST THE ORDER/JUDGMENT IN SC 161/2013 OF ADDITIONAL SESSIONS COURT, IRINJALAKUDA

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AGAINST THE ORDER/JUDGMENT IN CP 8/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS , KODUNGALLUR

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CRIME NO.1290/2011 OF Kodungallur Police Station , Thrissur

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APPELLANT/ACCUSED:

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PRIYAN AGED 29, S/O.PEETHAMBARAN, ARIMBULLY HOUSE, MADAVANA DESOM, ERIYAD VILLAGE, THRISSUR.

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BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682 031

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R1 BY PUBLIC PROSECUTOR

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OTHER PRESENT:

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SRI. SU NAZAR, SR. PUBLIC PROSECUTOR SRI. ALEX M. THOMBRA, SR. PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2020, THE COURT ON 17-09-2020 DELIVERED THE FOLLOWING:

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JUDGMENT

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Dated : 17^th day of September, 2020

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M.R. Anitha, J.

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Appellant is the accused in S.C.No.161/2013 of Additional Sessions Judge, Irinjalakuda. By the impugned judgment he has been convicted and sentenced by the court below under Secs 302, 307 and 201 IPC.

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The prosecution case in short is as follows :

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On 24.9.2011 at about 7.45 pm the accused, PW1, PW3

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and CW4 assembled at the rear compound of Thythara temple and there occurred some wordy altercation between the accused and PW3. It was questioned by PW1. The accused thereupon had a quarrel with PW1 and people assembled there sent him away from there. Out of that enmity, accused at 8.45 pm came near the house of PW1,

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while he was about to go by his motor cycle, and stabbed at his left side of abdomen and left leg with MO1 knife. Then

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deceased came to the spot and intervened. There upon

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accused stabbed him fatally below the left chest and on the back of left shoulder by MO1 and caused instant death of

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the deceased. He gave a false confession initially resulting

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in recovery of MO10 knife and subsequently gave Ext.P10(a) disclosure statement leading to recovery of MO1

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and it has been done with the intention of escaping from a possible conviction.

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On the side of prosecution, PWs 1 to 19 were examined and Exts.P1 to P19 were marked. MO1 to MO10 were identified and marked. After the closure of the prosecution evidence accused was questioned under Sec.313(1)(b) Cr.P.C. He denied all the incriminating facts and circumstances put to him and also filed an additional statement making a total denial of the prosecution case. Exts.D1 to D6 are contradictory statements marked during the crossexamination of prosecution witnesses. Apart from that, no defence evidence was adduced. Thereafter on hearing both

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sides, the court below convicted and sentenced the appellant to undergo rigorous imprisonment for life and to pay fine of Rs.75,000/- in default to undergo rigorous imprisonment for six months under Sec.302 IPC; imprisonment for life and to pay fine of Rs.60,000/- in default to undergo rigorous imprisonment for five months under Sec.307 IPC and also found guilty under Sec.201 IPC, no separate sentence was awarded.

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Aggrieved by the conviction and sentence passed against the appellant/accused, he came up in appeal for the various grounds stated in the memorandum of appeal.

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Heard the learned counsel for the appellant/accused and the learned public prosecutor. Lower court records were called for and perused.

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PW1 is the victim who gave Ext.P1 FIS and on the basis of the same, PW9 who was the SHO, Kodungallur, on 25.9.2011 registered the FIR which is marked as Ext.P7.

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Thereafter PW19 the Circle Inspector of police, Kodungallur

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took charge of the investigation, conducted the inquest and prepared the scene mahazar, arrested the accused and questioned him and two recoveries were effected as per the disclosure statement given by the accused. Ext.P5(a) is the initial disclosure statement given by him, based on which MO10 knife was recovered by describing in Ext.P5 seizure mahazar in the morning of 26.9.2011. But on showing MO10 weapon to PW1, he stated that it was not the weapon used by the accused and on questioning the accused further, he gave Ext.P10(a) disclosure statement and based on which MO1 knife was recovered by describing in Ext.P10 seizure mahazar. Thereafter he produced the property list, Ext.P16 series, and got the site examined by the Village Officer, PW17, through whom Ext.P12 scene plan was marked. PW18 is the doctor who examined PW1 at Medical College hospital, Surgery department and issued Ext.P13 wound certificate. PW10 is the Assistant Professor and Deputy Police Surgeon, Medical College hospital, Thrissur during

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the relevant time who conducted the postmortem on the body of the deceased and issued Ext.P8 postmortem certificate. Ext.P18 is the forwarding note for forwarding the articles to the chemical examiner's laboratory and Ext.P19 is the Chemical Examiner's report. Thereafter the final report was filed by PW19 against the accused.

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The fact that death of the deceased was homicide is not seen disputed. Nevertheless a suggestion seen put during cross-examination to PW3 that injury was caused to PW1 by hit of a vehicle. But prosecution examined PW10 the doctor who conducted postmortem on the body of the deceased and Ext.P8 is the postmortem certificate. The antemortem injuries noted as per Ext.P8 certificate is as follows:

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“1. Incised penetrating wound of 3 cm long, oblique on left side of chest, upper inner end 10.5 cm outer to midline and 18 cm below collarbone. Upper end was blunt and lower end sharply cut. The wound entered chest cavity through the intercostal space between 4^th and 5^th ribs with infiltration of blood around. Wound had cut the pericardium (3cm long) and entered the cavity of

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left ventricle though the anterior wall (4.5 cm long) near the inter ventricular septum. The pericardial cavity contained 100 ml of blood. Chest cavity contained 500 ml of blood and 200 gms of blood clots. The thickness of chest wall including subcutaneous tissues and muscle was 1 cm, thickness of rib – 0.8 cm and left ventricular wall – 2 cm. The wound was directed backwards, inwards and downwards. The total minimum depth was 3.8 cm. Wound also cut the anterior surface of left lung on its lower lobe (5x1x1cm), lung collapsed (2cm long).

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Incised wound 5cm long on top of left shoulder at the upper pat of left upper arm. Transverse on a railing of 3cm on its frontage. There was beveling and outwards.

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Injury No.3 noted on KPF 102 was not present. It was dirt.”

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The doctor also deposed that injury noted in Ext.P8 can be

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caused by MO1 knife and cause of death is also injury No.1. During cross-examination though questions were put with regard to the measurements of the wound and the possibility of inflicting such an injury with MO1 knife on a glance through injury No.1 it could be seen that it is a deep penetrating wound and it entered the cavity of left ventricle.

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So that itself would prove the force with which the injury was

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caused. During cross-examination it was also deposed by

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PW10 that death may cause soon after the injury and both lungs are damaged and injury to lungs was due to drag of knife from the body. So the postmortem certificate and the evidence of PW10 the doctor would leave no room for any doubt to conclude that the death of the deceased was due to injury No.1 caused and the doctor also opined that it could be caused with MO1 knife. So we do not have any hesitation to conclude that the death of the deceased was homicide.

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The main contention of the learned counsel for the appellant/accused (the appellant, hereinafter, would be referred as 'accused') is that the entire case revolves upon the evidence of PW2 who is the sole eye witness and injured and he has given three different versions inconsistent with each other and without any independent corroboration, his sole evidence cannot be relied upon to

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find the accused guilty in a grievous crime of 307 and 302 IPC. He would further contend that Prosecution failed to prove the presence of light at the place of occurrence and hence the identity of the accused is not proved. He would also contend that none of the witnesses identified the accused during examination and that also caused prejudice to the accused. It is also his contention that none from the house of deceased and neighbours were examined and that would create doubt about the prosecution case. He would further contend that recovery of weapon under Sec.27 of the Evidence Act and the evidence attached thereto are inadmissible and hence, according to him, the conviction and sentence passed against the accused is totally unsustainable.

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The learned public prosecutor on the other hand, would contend that PW1 was seriously injured and the incident took place at 8.45 pm on 24.9.2011 and FIS was given at about 1.00 am on 25.9.2011 and hence he could not state

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the facts in detail at the time of giving FIS and that cannot be said as fatal to the prosecution. There is no possibility of any dispute regarding identification of the accused because he is a friend of PW1 and there is no material deviation in the statement given by PW1 either in FIS or chief examination or in cross as has been contended by the learned counsel. There is also evidence of PW2 to 4 in corroboration with the evidence of PW1 and there is no reason whatsoever to make any interference with the conviction and sentence passed by the court below and hence he seeks for a dismissal of the appeal.

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The first and foremost aspect is about the admissibility of the evidence of PW1, the sole eye witness and injured. On going through the FIS it is seen that it has been recorded at 1.00 am on 25.9.2011.

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According to the learned counsel for the accused, during evidence PW1 gave a different version that while he was coming by bike accused restrained him and he fell down

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from the bike. Then accused stabbed him at the abdomen

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and leg. It is not stated in Ext.P1 that accused restrained the bike and he fell down from the bike. Further, he would contend that the accused has stated on one occasion that himself and his father sustained injury in two places. He would also contend that accused admitted during cross examination on one occasion that his father had not seen himself sustaining injury. So according to the learned counsel that would belie the prosecution case that on seeing the accused stabbing him the father tried to intervene and thereupon the father was stabbed.

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In order to ascertain the above aspect it would be necessary to analize the statement given by PW1 in Ext.P1 and his chief and cross examinations. On looking at the FIS it could be seen that it was given at about 1 a.m on the immediate next day i.e within 4 ¼ hours after sustaining the serious injuries to him and even at that time he stated about their assembly at the temple compound though the time was

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stated as 5.30 instead of 7.30 and subsequent altercation

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between PW3 and accused also has been narrated. Again he stated that people assembled there send him away and he went to his house and thereafter accused called over phone and abused him using filthy language and there was some exchange of filthy language between them and sometime after accused called him and he went out of the house and there was a push and pull between them and accused stabbed him and on seeing that the father tried to intervene and thereupon the father was stabbed. Immediately he rushed to the temple area for calling the colleagues but he fell down etc.

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In chief examination one thing in variance from FIS is with regard to the motor cycle and accused coming from his back and restraining him and himself falling down and accused stabbing him on his abdomen and leg and on seeing the same father came and he was stabbed. It is true that at the time of giving FIS he did not mention about the

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motorbike. But when he was questioned regarding the same

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he categorically stated that at the time of giving Ext.P1 FIS he cannot state the same in detail. In the scene mahazar prepared there is a reference with regard to a motorcycle. The evidence of PW18, the CMO in surgery department, Medical College hospital, Thrissur and Ext.P13 wound certificate would prove that he had sustained an incised wound of 3x1x6 cm on left flank below costal margin extending into the muscle plane and also an incised wound of 5x2x1 cm on left leg and according to the doctor the injuries are serious in nature and may cause death and it is near the kidney. So it would show that he had sustained serious injury and it is within 4 ¼ hours that he gave the FIS. So it might not have been possible for him to give a detailed narration of the incident. During the end of chief examination he has also stated that while he was about to go out of the house that accused came and stabbed him. So the fact that the incident happened while he was proceeding

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from his house is consistently stated by him during his evidence. At the time of giving FIS he has stated that accused came to his house and called him and thereafter he went out of the house. So that cannot be taken as a material inconsistency. Moreover the altercation which was taken place in the temple compound at 7.30 p.m and his return to the house and subsequent exchange of abusive words between him and accused has been stated by him during his evidence in cross examination also. Anyway the fact that the incident occurred in front of the house of PW1 and accused came there and stabbed him on the way situated in front of the house of PW1 remain static by the version of PW1 at the time of giving FIS and during evidence.

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The next aspect pointed out by the learned counsel is with regard to the injury sustained by the father and the admission of PW1 that his father has not seen the accused stabbing him. But it is to be noted that in the FIS, in chief-

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examination and also during cross-examination the consistent version of PW1 is that it is after the accused stabbed him the father came and it is thereupon the accused stabbed the father. Prosecution has no case that after stabbing the father there was any attack by the accused upon PW1. So also though during crossexamination he stated that himself and father sustained injury at different places he has consistently stated that it is after the father sustained injury that he rushed towards the temple area to call the colleagues. It is true that during one occasion in cross examination he stated that on sustaining injury by him he was sitting and then his father came and there was some push and pull in between the father and accused and accused stabbed the father and he fell down. So the deceased might have reached the spot on hearing the cries of PW1 and that is the reason why PW1 stated that father and himself sustained injury at different places. The above inconsistencies cannot be made use of by the

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accused to efface the prosecution case in toto when there is clear and cogent evidence by PW1-an injured witness who had seen the accused stabbing his father who has reached

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the spot to intervene so as to prevent the accused from attacking his son.

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In this context it is relevant to quote Raghunath Singh @

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Manna & Ors. v. State of U.P. [1969 (3) SCC 188]

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wherein it has been held that contradictions and inaccuracies must be sufficient in nature to cast doubts on the substantial parts thereof. It is also held that in the absence of cogent grounds or compelling circumstances it is unable to come to a finding different from that reached by three out of the four Judges who heard the appeals. In that case two ladies were murdered and husband of one among them was attempted to be murdered and the question arose whether the evidence of Rameshwar Singh the husband of

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one among them is admissible or not. It is relevant in this context to extract paragraph No.21 of the judgment which

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reads as follows:

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"The rejection of Rameshwar Singh's testimony with regard to the presence of Amar Nath Singh or of his versions that the first information report was dictated at his house while the Sessions Judge found that it was laid at the police station or the comment of the Sessions Judge that the investigation in the case was not above board or the variance about the time of the occurrence as between 11 and 12 O' clock in the first information report and between 10 and 11 O' clock as given in one of the so-called dying declaration or of the disparity in the statements about the exact nature of the weapons used, whether they were all pharsas or whether some of them were gandasas, are not, in our opinion, matters sufficient to discredit the main version of Rameshwar Singh with regard to the commission of the crimes for the appellants."

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It is also relevant in this context to quote Ugar Ahir &

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Ors. v. The State of Bihar [AIR 1965 SC 277]

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wherein while dealing with Section 5 of the Indian Evidence Act and the maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law

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nor a rule of practice and it is the duty of the Court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. It is relevant in this context to extract paragraph No.6 of the judgment which reads as follows:

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"6. The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence doer not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. That is what the courts have done in this case. In effect, the courts disbelieved practically the whole version given by the witnesses in regard to the pursuit, the assault on the deceased with lathis, the accused going on a bicycle, and the deceased wresting the bhala from one of the appellants and attacking with the same two of the appellants, the case that the accused attacked the witnesses, and the assertion of the

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witnesses of their being disinterested spectators. If all this was disbelieved, what else remained? To reverse the metaphor, the courts removed the grain and accepted the chaff and convicted the appellants. We, therefore, set aside the conviction of the appellants and the sentence passed on them.”

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It is further relevant to quote Mani @ Udattu Man & Ors v.

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State Rep. By Inspector of Police [2009 KHC 5567 SC] wherein also while dealing with Section 302 in a murder trial it has been held that the maxim “falsus in uno falsus in omnibus” has no application in India and the witness or witnesses cannot be branded as liar(s). It is also held that 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. It is also held that falsity of material particular would not ruin it from the beginning to end. Paragraph No.4 of the abovesaid judgment is relevant in this context to be extracted, which reads as follows:

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"4. It is the duty of the Court to separate grain from

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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 particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witness or witnesses cannot be branded as liar(s). The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of the rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. 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 what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. State of U.P.) In a given case, it is always open to a Court to differentiate the accused who had been acquitted from those who were convicted where there are a number of accused persons. (See Gurcharan Singh And Another v. State of Punjab, AIR 1956 SC 460) . The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead - stop. Witnesses just

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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. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. ( See Sohrab s/o. Beli Nayata and Another v. The State of M.P. 1972 (3) SCC 751 and Ugar Ahir & Ors. v. State of Bihar, AIR 1965 SC 277 ). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, 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 essential details presented by the prosecution completely from the context and the background against which they are made, the only available curse to be made is to discard the evidence in toto. ( See Zwinglee Ariel v. State of M.P., AIR 1954 SC 15 and Balaka Singh & Ors. v. State of Punjab, 1975 (4) SCC 511. As

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observed by this Court in State of Rajasthan v. Smt. Kalki & Anr., 1981 (2) SCC 752, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. The courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted in Krishna Mochi & Ors. v. State of Bihar & Ors., 2002 (6) SCC 81 and in Sucha Singh v. State of Punjab, 2003 (7) SCC 643. It was further illuminated in Zahira H. Sheikh v. State of Gujarat, 2004 (4) SCC 158, Ram Udgar Singh v. State of Bihar, 2004 (10) SCC 443, Gorle S Naidu v. State of A.P., 2003 (12) SCC 449, Gubbala Venugopalaswamy v. State of A.P ., 2004 (10) SCC 120 and in Syed Ibrahim v. State of A.P ., 2006(10) SCC 601.”

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So coming back to the fact and circumstances of this

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case even though there are some discrepancies in the evidence of PW1, the substratum of the prosecution case

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remains intact and it is difficult to conclude that the

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inconsistencies brought out during the evidence of PW1 is fatal to the entire prosecution case.

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With regard to the absence of statement in the FIS with regard to the motorbike and his evidence that while he was about to go out of the house the accused came and attacked him it is to be noted that it is well settled that an FIR cannot be an encyclopedia. It is relevant in this context

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to quote Jitender Kumar v. State of Haryana Sunil

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Kumar and Anr v. State of Haryana [AIR 2012 SC

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2488] wherein while dealing with a murder trial and the scope of Section 157 Cr.P.C., it has been held that every omission in the FIR may not be so material so as to unexceptionally be fatal to the case of the prosecution. In that case an accused was not named in the FIR and it was held that FIR was lodged on the basis of only a part of the incident seen by the informant in which one of the accused was not present (appellant) and no mention of the

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appellant's name in FIR adds credibility to prosecution case.

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In this case, while PW1 was cross-examined and questioned with regard to the omission to state about the motorcycle and the fall, he categorically stated that at that stage he was not in a position to narrate the matters in detail. So the absence of reference with regard to the motorcycle in the FIS will not be fatal to the facts situation of this case especially because the incident took place on the way in front of the house of PW1 which would prove the prosecution case that accused came to the place of occurrence out of the altercation which occurred at the temple compound at 7.30 p.m. So whether PW1 went by motorcycle or whether he went by walking or whether he was called from his house by the accused and he came out etc. are immaterial.

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In corroboration with the evidence of PW1 prosecution examined PWs 2 to 4 who reached immediately after PW1 and father sustained injury. Prosecution case itself is that

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PW2 and PW3 were also present at the temple compound while PW1 and accused assembled there for rejoicing. The evidence of PW2 is that he was also present at the temple compound and heard the altercation and the intervention by PW1 whereupon there was quarrel between PW1 and the accused and he sent them away and thereafter he heard the cry of PW1 and he rushed to the place from where the sound was heard and saw PW1 lying on the road leading to the house of PW1.

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PW3 also deposed about the incident took place in the temple compound and quarrel in between PW3 and accused. He also deposed that initially there was quarrel in between himself and accused and PW1 intervened and thereafter there was exchange of words between them and they were send away. He also heard the cry of PW1 and rushed to the spot. PWs 2 and 3 deposed in corroboration that on reaching there PW1 told that accused stabbed him and his father. Both of them also deposed that though they

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rushed to the house of PW1 the father was not seen and

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while they returned he was found lying on the base of a coconut tree with stab injuries. PW2 also deposed that though he called deceased touching him, there was no movement and both of them were taken by an autorickshaw to Modern Hospital, initially and PW1 was further taken to Medical College Hospital. PW2 also deposed that PW1 was lying on the road in front of the house of PW4.

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PW4 deposed that on 24.09.2011 during night while she was watching T.V. she heard a cry from the western pathway and found a person falling down and she rushed to the spot and saw PW1 and on asking him he stated that accused stabbed him and his father. She also stated that PW1 and father were taken to hospital. Ext.P13 wound certificate of PW1 would show that he had been taken to hospital by Ratheesh (friend) who has been cited as CW4 though was not examined. So the fact that PW1 and father have been taken to the hospital by friend also would

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corroborate with the evidence of PWs 2 and 3 that immediately at the time of incident on hearing the cry of PW1 both of them rushed to the spot. Though PW1 did not state about PW4 while giving FIS it has been stated categorically in the FIS also that for calling people he rushed to the temple compound but he fell down on the way. During cross-examination he stated that it is at the time of fall that Pw4 came. When he was questioned that it has not been stated in the FIS by him, he categorically stated that it has been stated subsequently. That fact is not further challenged also. PW2 also stated that PW1 was lying on the way in front of the house of PW4. During cross-examination also he stated that the house of PW4 is nearby the place of occurrence and further he stated that her house is also nearby the way. PW4 also stated during cross-examination that the distance from the way to her house is 20-25 feet and by looking from the house she saw a person falling down and she also stated that blood was oozing from the

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wound of PW1 and she cried aloud. She also denied the

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suggestion that PW1 was not in a position to speak and she reiterated in cross-examination that it is PW1 who told about

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the stab. Ext.P12 scene plan and the evidence of PW17 would prove that the distance from the place of occurrence to the temple compound is only 100 mtrs. So it is in between the house of PW4 situated. Hence it is quite probable that PWs 2 and 3 who were there in the temple compound even after PW1 returned to his house be present in the compound and would have rushed to the spot on hearing the cry of PW1.

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There is some more significance to the evidence of PWs 2 and 3 when they state that PW1 told them that accused stabbed him and his father. It is contemporaneous and immediately after sustaining injury by them and hence forms part of the same transaction of sustaining injury to PW1 and his father and hence is admissible under Section

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6 of the Indian Evidence Act. It is relevant in this context to

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quote S.6 of the Indian Evidence Act (here in after called as

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the Act)which reads as follows:

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“6. Relevancy of facts forming part of same

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transaction.- Facts which, though not in issue, are so connected with a fact in issue as to from part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.”

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Illustrations:

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(a) A is 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 a relevant fact.

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…...........”

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25. It is apposite to quote Kurian v. State [2019 KHC 741]

¶146

wherein while dealing with S.6 of the Act it has been held by this Court that Sec. 6 is an exception to the general rule that hearsay evidence is not admissible. For giving such hearsay

¶147

evidence within the ambit of Sec. 6 what is required to be established is that the statement sought to be admitted is forming part of res gestae must have been made contemporaneously with the acts or immediately thereafter.

¶148

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¶149

PW1 at the time of giving FIS itself stated that while he was rushing towards the temple compound he fell down on the way. Further he stated that to them he informed about the stabbing of the father. He also stated that his friends PWs 2, 3 and CW4 took his father and himself in the autorickshaw to the hospital. PWs 2, 3 and 4 deposed in corroboration that PW1 stated to them that accused stabbed him and his father. But during evidence Pw1 did not state that he told to Pw4 that accused stabbed him and father. So the statements of PW1 and the evidence of PW2 and 3 that Pw1 told them that accused stabbed himself and father immediately after the occurrence at the place of incident is contemporaneous and forms part of the same transaction and hence will come within the purview of res gestae and hence is admissible under Section 6 of the Indian Evidence Act. On evaluating the evidence of PW2 though some portions of his 161 statement has been marked as D1 to D5, his evidence that he has gone to the temple compound

¶150

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¶151

for the get together and quarrel was going on there could not be successfully challenged though there is some discrepancies regarding the time when he reached there.

¶152

So also during cross-examination of PW3 nothing could be brought out to challenge his testimony in chief examination that there was an altercation between PW1 and the accused in the temple compound and all of them sent them away. His evidence that he went to the temple compound along with the accused and there was a quarrel between him and the accused and then PW1 intervened, thereupon there was a quarrel between PW1 and accused is a fact stated by PW1 even at the time of giving FIS. So he is a person who had been present with the accused and PW1 in the temple compound and he also rushed to the place of occurrence on hearing the cry of PW1 and he also stated that PW1 was lying on the way in front of the house of PW4. He also stated that on reaching the spot PW1 told him that accused stabbed him and his father. So the evidence of

¶153

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¶154

PW3 is clear and cogent to support the prosecution case regarding the incident took place at the temple compound and himself reaching the spot on hearing the cry of PW1 and PW1 telling him that accused stabbed him and father.

¶155

The evidence of PW4 also supports the version of PW1 that accused stabbed him and his father. So the evidence of PW1, 2, 3 about the statement of PW1 that the accused stabbed him and his father as stated earlier is immediately after the incident and forms part of the incident and hence is admissible under Section 6 of the Act.

¶156

The learned counsel for the accused would also content that Pw1 did not state about Pw4 coming to the spot. But as stated earlier he categorically stated during cross examination that when he ran to temple property for calling friends, he fell down and there Lalitha (Pw4) came. Pw5 who took Pw1 and the deceased to the Hospital also deposed that while watching the TV he heard the sound of a lady and when he went there he saw Pw1 lying with injuries

¶157

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¶158

on the way of Pw4. It is pertinent to note that there is not even suggestion to Pw2 to 5 that they have got any ill will towards the accused. On the other hand PW2 to 5 are the most natural and probable witnesses. So we don't find any justifiable reason to disbelieve them.

¶159

The learned counsel for the accused also contents about the failure of prosecution to examine anybody from the house of the deceased. But the inquest report would show that the wife of deceased died before 3 years of the incident and he is living in the house with two sons. The other son might not have been present in the house at the time of incident and that may be the reason why deceased himself went out of the house on seeing the incident. So non examination of anybody from the house of PW1 will not create any doubt. The learned counsel further contends about the non examination of the neighbours. But PW4 is a neighbour. Pw5 is also a neighbour who reached the place where Pw1 fell down on hearing the alarm. With regard to

¶160

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¶161

the six neighbours made mention of in the mahasser, the Pw19 the I.O. would state that he questioned the neighbours noted in the scene mahasser, but they have not witnessed the incident and hence were not cited as witnesses. That seems to be a plausible explanation also.

¶162

The learned counsel for the accused also vehemently argued about the absence of light at the place of occurrence. According to him witnesses gave contradictory version with regard to torch held by PW2 and the place of occurrence is also full of trees with shadows. He would also contend that PW2 and PW3 would depose that though PW1 told them that his father was stabbed and they proceeded towards the house of PW1, they could not see the deceased lying on the base of coconut tree. That would indicate that there was no light at the place of occurrence otherwise they could have seen the deceased lying under the coconut tree. 32. It is true that there is some discrepancy in the evidence of

¶163

PW2 in this regard. He would depose in cross-examination

¶164

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¶165

that he heard the alarm at 8.45 p.m and he was not holding torch. But he added that mobile torch was there. He also denied his statement that he was holding torch and it is marked as Ext.D4 and his statement given to the police that he had seen PW1 in the light of torch is marked as Ext.D6. Further he would say that he obtained torch from the house of PW1. So the inconsistent version of Pw2 with respect to torch would leads to an inference that he was not having any torch with him. But it is to be noted that PW1 even at the time of giving FIS would state that the incident was seen by him from the light of his house and the houses situated on the south and west. That is reiterated by him during his evidence also. From the scene mahazar also that fact has been revealed. Moreover PW4 and PW5 would state that they were watching the T.V. and at that time they heard the cry. So that would indicate that there was power supply at the time of incident. Since the incident was also at 8.45 p.m, there would be every chance of putting on the light in all

¶166

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¶167

houses at that time. It has also come out in evidence that

¶168

the house of PW1 is situated very nearby the way lying in front of the house where the incident occurred. So the light from the house would definitely will fall on the way. Moreover, the accused is not a stranger and is a friend of PW1 and PW2 and PW3. So being a friend of PW1 there would not be any difficultly for him to identify the accused even if the light was dim. During his evidence PW1 categorically stated that he has been in acquaintance with the accused for the last ten years. So the contention that Pw1 could not identify the accused due to absence of light is not acceptable.

¶169

The learned counsel for the accused would next contend that there is no dock identification of the accused by PW1 to PW4 and that is fatal to the prosecution. In this context the learned counsel would take my attention to Vayalali

¶170

Girishan & Ors. v. State of Kerala [2016 KHC

¶171

204]. In that in a criminal trial under Sections 302, 149

¶172

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¶173

Section 34 IPC and Section 3 and 5 of Explosive Substances Act and 27(1) of the Arms Act, 1959 it has been held that the absence of identification of the accused at the dock during examination is fatal. In that case Sessions Judge merely recorded the rank number of the accused in the charge and no effort was taken by him to certify in the deposition that person referred by witness as one of the members of the unlawful assembly is the person standing in the dock. In that circumstance, it was held that it cannot be said that witness was referring to a particular accused whose name finds a place in the charge or to some other person. Hence it was held that there was no proper identification of the accused and for such lacuna accused is entitled for benefit of doubt. But on going through the facts situation of that case it is seen that the prosecution case was that accused 25 in number formed an unlawfully assembly and threw bomb on the jeep in which the victims were travelling which resulted in the death of two persons

¶174

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¶175

and injury to others. Paragraph No.43 and some part of paragraph 44 are relevant in this context to be extracted which reads as follows:

¶176

“43. Recalling the discussion with regard to the presence, participation and fixation of identity of the accused, we hold that the evidence of PW1 to 4 are convincing as regards the incident and there is no reason to doubt their version as regards the involvement of accused Nos.1, 2, 12 and 15. But we are distressed to note that in the case of the other accused, the learned Sessions Judge has adopted a very callous approach. Undoubtedly, substantive evidence is the identification of the accused by the witness before the Court. But in the instant case, the deposition of the witnesses only reveals that the learned Sessions Judge has merely recorded the rank number of the accused in the charge and no effort is seen undertaken to certify in the deposition, with exactitude and certainly, that the person referred by witness as one of the members of the unlawful assembly which perpetrated the horrendous act is the person who was standing in the dock. We are unable to discern for certain as to whether the witness was referring to the particular accused whose name finds a place in the charge or to

¶177

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¶178

some other person. Obviously the witness will not be aware of the rank number of the person standing in the dock in the array of the accused. There is absolutely no clue available from the deposition either, as the Court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. The Apex Court as well as this Court, time and again, have reminded the Trial Courts, the importance of recording in the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude. This is all the more important in a case of this nature where most of the accused are attempted to be roped in on the reason that they were members of the unlawful assembly and they had shared the common object. Unfortunately, there is no specific endorsement in the deposition of the eye witnesses that the accused numbering 25 standing in the dock were identified by the witness in any acceptable manner known to law and the Court was satisfied by the identification. In other words, it does not appear from the evidence that the accused was specifically pointed out by their name or specific feature and an endeavour was made by the Court to individually

¶179

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¶180

fix each of the accused as being present at the scene of crime so that their complicity as members of an unlawful assembly in prosecution of the common object could be fixed. We have to mention that the identification of the accused in Court, which was conducted in an omnibus and perfunctory manner, cannot be held to be reliable to establish the complicity of accused Nos.3 to 11, 13, 14 & 16 to 25 and to hold them vicariously liable for the offence under S.302 r/w.149 of the IPC.

¶181

We are afraid that it would result in travesty of justice if we were to hold the accused guilty against whom no specific overt acts are alleged and in respect of whom the identification of Court is extremely sketchy in view of the deficiencies noted above. We note that there are only general allegations against them and we hesitate to convict all of them on such vague evidence. In spite of a meticulous search we are unable to find any reasonable circumstances to lend assurance to hold those accused guilty.''

¶182

The facts and circumstances of the case in hand is entirely

¶183

different from the one cited above. In this case, there is only one accused and there is specific evidence by PW1 that accused has been shown to him and he is in acquaintance

¶184

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¶185

with the accused for the last ten years. It is true that PW2 to PW4 also did not specifically identified the accused at the dock during examination. But they were not witnesses who witnessed the incident. But we make it clear that we may not be misunderstood for laying down the proposition that dock identification of the accused does not matter at all. But from the evidence of PW2 and PW3 it is clear that they would make specific reference with regard to PW1 and accused form the time of incident which took place at the temple compound when there was altercation between PW2 and the accused and also between accused and PW1 due to the intervention of PW1 in the quarrel between PW3 and accused. It would indicate that accused and PW1 to PW3 are quite familiar to each other and have assembled and rejoiced together in connection with the marriage of the sister of their colleague in the temple compound. So the failure of dock identification do not appear to be fatal in this case. In this context it is relevant to quote Joseph

¶186

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¶187

Thomas v. State of Kerala [2020 (4) KLT 193]

¶188

wherein it has been held that an identification of accused in

¶189

the dock is essential in criminal trials when the offender is not previously known to the witness.

¶190

The next challenge of the learned counsel was with regard to the recovery of MO1 knife alleged to have been used by the accused for the commission of offence. He would contend that eventhough prosecution case is that MO10 is

¶191

recovered as per the first disclosure statement Ext.P5(a) made at 8.30 a.m on 26.09.2011 and Ext.P10 recovery mahazar was prepared at 4.00 p.m on the same day on recovery of Mo1, in the remand report Ext.P14 there is no whisper with respect to the recovery made. So that creates doubt with regard to the recovery of MO1.

¶192

PW8 is the witness in Ext.P5 recovery mahazar who was the police personal working in traffic unit in Kodungalloor police station as on 26.09.2011. He would state that at the time when accused produced MO10 knife and Ext.P5

¶193

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¶194

seizure mahazar prepared he has been present with the investigating officer. He was also a witness in Ext.P6 which is the seizure mahazar for seizing the shirt and dhothy (MO2 and MO3 respectively) worn by the accused at the time of occurrence which has been seized at the police station.

¶195

PW11 is also the witness in Ext.P5 recovery mahazar and he also identified MO10 as the knife produced by the accused. PW13 is the witness in Ext.P10 recovery mahazar which has been prepared while recovering MO1 from the almirah of the house of the accused. He is a neighbour of the accused also. During cross examination he deposed that it is at 4 p.m police came to the house of the accused and he also identified MO1 as the knife recovered on that day. Nothing was brought out to discredit the testimony of Pw13 during cross-examination. 38. The main attack of the learned counsel for the accused with respect to MO1 knife and the recovery leading to the same

¶196

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¶197

as stated earlier is that both the recoveries were effected prior to the production of the accused before the court along with the remand report but there is no whisper about the recovery of the weapon in Ext.P14 remand report. But it is to be noted that even in the remand report there is specific mention that the accused is changing his version with regard to the weapon used and detailed questioning is necessary. So probably at the time when the remand report was prepared and accused was produced before the court, the investigating officer himself might not have been sure whether the accused would again change his version .If he state about the recovery of the weapon and if at all the accused change the version and speaks about another weapon that would efface the entire recovery of the weapon used for the commission of offence. It has been stated by the PW19 the investigating officer that after recovery MO10 knife and showing the same to the victim the victim informed that it was not the weapon used and hence on the same

¶198

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¶199

day accused was further questioned. So the investigating officer cannot be found fault with for not making mention of the recovery of MO1 or MO10 in Ext.P14 remand report. That is the reason why a specific charge under Section 201 IPC has also been added for causing disappearance of evidence for pointing out a wrong weapon initially with the intention of saving him from the legal punishment. If the arguments so advanced by the learned counsel is accepted, any unscrupulous offender can very well overcome Section 27 recovery by pointing out a wrong weapon initially. MO1 is clearly identified by PW1 during evidence. However chemical examination report which has been marked as Ext.P19 would show that item No.12 which is MO1 knife though subjected to examination to ascertain the presence of blood, its origin and group ,the report would state that though blood was detected in item No.12 (MO1) its origin could not be ascertained for want of sufficient quantity. It is also to be remembered in this context that the prosecution

¶200

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¶201

case itself is that with MO1 knife accused stabbed pw1 and also the deceased. But the blood grouping of the deceased alone was done. The possibility of finding blood of both on it also cannot be ruled out. The learned counsel also contends about the delay in forwarding MO1 to court for about 1½ months. But no question seen to have put to PW19 in that regard. Anyway since the origin and group of the blood detected in MO1 could not be determined the recovery of MO1 knife as per Ext.P10 mahazar is not of much relevance.

¶202

But it is to be noted that apart from MO1 prosecution also seized the lungi and shirt worn by the deceased at the time of incident and also the shirt and dhothi worn by the accused and also the shirt worn by PW1. PW1 identified MO2 and 3 as the shirt and dhothi of the accused and MO4 as the shirt worn by him at the time of the incident and MO7 as the dhothi of the deceased. As per forwarding noteExt.P18, item Nos. 1 & 2 are the lungi and 'kaili' seized at

¶203

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¶204

the time of inquest among them item No.2 is the saffron colour dhothi worn by the deceased. Item No.9 is the shirt of PW1, item No.10 is the shirt worn by the accused at the time of incident and item No.11 is the saffron colour dhothi worn by the accused at the time of incident. Item No.2 has been marked as MO7. Item No.9 is marked as MO6 and item No.10 and 11 were marked as MO2 and MO3. As per Ext.P19 FSL Report, MO7 the saffron colour dhothi of the deceased and MO6 the shirt of PW1 and MO2 and 3 the shirt and saffron colour dhothi of accused contained human blood and the blood group in MO7-the dhothi of the deceased alone was detected as 'A' group, but the group could not be determined on any of the other items due to inconclusive test result and insufficient quantity with respect to item No.1, 7, 9 and 11 and item No.3, 4 and 10 respectively. Item No.3 to 8 which are the samples collected by the scientific assistant from the scene of occurrence. The report would show that blood was not detected in item No.5

¶205

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¶206

that is control samples of leaves and sand, item 6, button and item 8, control gauze. It is also reported that soil samples in item No.3, 4 and 5 were found to be similar. Blood group of the deceased was determined as group 'A'.

¶207

So also thread comparison (fibre comparison) of the shirt of Pw1 which is marked as MO6 and that of the shirt of the accused which is marked as MO2 were conducted with that of MO8 the button with fibre and it is produced as item No.6 in Ext.P19. Item No.9 is the shirt of PW1(MO6) and item No.10 is the shirt of accused (MO2) and the test result is that the button and thread covered by item No.6 which is the button with thread seized form the place of occurrence by the scientific assistant at the time of preparation of scene mahazar were found to be identical to the button and thread covered by item No.10 which is the shirt worn by the accused at the time of incident. It is also reported that the button and thread covered by item No.6 (MO8) were found to be not identical to the button and thread covered by item

¶208

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¶209

No.9 which is the shirt worn by PW1 at the time of incident.

¶210

PW1 identified MO8 as the button of the shirt of accused.

¶211

That would constitute a clinging evidence to connect the presence of the accused at the place of occurrence at the time of incident. There might have had some push and pull between PW1 or deceased and accused during the course of attack which might have resulted in falling of button with thread from the shirt of accused.

¶212

The learned counsel for the accused would next contend that no specific question was put to accused with regard to these connecting evidence during the time of his examination. It is true that the Sessions Judge ought to have put to the accused with the above circumstances during his examination for explanation. But the question is whether that alone is sufficient to discard the scientific evidence adduced by the prosecution. Apart from putting a general question with respect to the FSL report Ext.P19 the Sessions Judge has not taken the pain to put the question

¶213

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specifically about the relevant circumstances. In this context

¶215

it is relevant to quote Kalippilakkal Varghese and

¶216

Anr. v. State of Kerala [2020 3 KHC 76] wherein while dealing with questioning under Section 313 Cr.P.C. and the prejudice which would be caused in omitting to put questions to accused during examination,it has been held by this Court that merely because a pointed and specific question as to knowledge and intention was not formulated and put to accused will not result in causing any prejudice to the accused vitiating the conviction, since his opportunity to explain incriminating circumstances cannot be said to be impaired or taken away. In this case, as stated earlier, though no specific question was put to the accused with regard to the presence of human blood in his shirt and dhothi which were marked as MOs 2 and 3, no prejudice as such seems to have been caused since he has specifically denied in this 313 additional statement about his connection with those items. So also with regard to MO8 button also he

¶217

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¶218

has made a total denial whereas from the evidence adduced from the side of prosecution the said shirt was seized after his arrest finding that it was the shirt which was worn by him at the time of incident. PW1 identified the same during evidence also. So the contention of the learned counsel regarding the failure of the Sessions Judge to put questions specifically with regard to the material objects during his examination will not cause any prejudice to the accused since he has filed additional statement expressly denying the connection with those items. So evidence adduced from the side of the prosecution would prove beyond any reasonable doubt the complicity of the accused in the commission of offence of causing death of the deceased Francis and inflicting serious injuries upon PW1. So we do not find any reason whatsoever to interfere with the findings so entered into by the court below. 42. In the appeal memorandum a contention has also raised to the effect that S.201 is attracted only against a person other

¶219

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¶220

than the actual offender. But it is well settled way back from

¶221

Kalwati and Another V state of H.P (AIR 1953 SC

¶222

that S.201 is not restricted to the case of a person who screens the actual offender,it can applies even to person guilty of the main offence. The same principles was

¶223

followed in Shinoj & others V State of Kerala 2019

¶224

KHC 862(DB).

¶225

The next question to be answered is about the intention of the accused in causing the death of the deceased and attempting the murder of PW1. It has been urged in the appeal memorandum and contended by the learned counsel that the injury inflicted is in the heat of moment and in the absence of pre meditation an offence under S.302 will not be attracted.

¶226

The prosecution case itself is that the deceased came to the scene after the accused stabbed PW1 in order to ward him off from the attack and it is at that time the

¶227

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¶228

accused inflicted injury upon the deceased. For the mere

¶229

fact that the deceased came for dissuading the accused from attacking his son he turned towards the deceased and inflicted such a fatal injury on his vital part which resulted his instantaneous death.

¶230

In this context it is relevant to quote Mohd. Mytheen

¶231

Shahul Hameed v. The State of Kerala (AIR 1980

¶232

SC 108). In that case taking note of the cut injuries on the outer table of the scalp and other fatal injuries upon the unarmed deceased by the accused, it has been held that the act of the accused on the deceased was deliberate and

¶233

exceptions II and IV to S.300 is not attracted.

¶234

It is also relevant to quote State of Rajasthan V Dhool

¶235

Singh (2004 CrlLJ 931 (SC) ) wherein it has been held that number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury,the part of body where it is caused,the

¶236

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¶237

weapon used in causing such injury which are indicators of

¶238

the fact whether the respondent caused the death of the deceased with an intention of causing death or not.

¶239

It is also relevant to quote Madhu v. State of Kerala

¶240

(2017 (5) KHC 83) wherein it has been held that extensive nature of injuries would show the force applied by the accused by beating with stick on the head of the injured causing haematoma below the skull and it was also held, the nature of force applied and place where injuries are caused would sufficiently prove intention and knowledge of attributing to cause death and hence it would come under the purview of both first and second limbs of S.300.

¶241

In Mohan Singh and Ors. v. The State of Punjab

¶242

[AIR 1977 SC 1800] while dealing with Section 302 Section 34 and 304 Part II it has been held that when the evidence of the doctor would state that the injuries found on the person of the deceased were sufficient with ordinary course later to cause death Section 304 Part II will not

¶243

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apply.

¶245

In this case, the evidence of the doctor would show that the cause of death is injury No.1 and it is possible to be caused with Mo1 knife. Mo1 is also a knife with 30.5cm length. Evidence of Pw10 and Ext P8 post mortem certificate would prove that injury No1 is incised penetrating wound of 3cm long oblique on the left side of chest and the wound entered the chest cavity through the intercostal space between fourth and fifth ribs. The wound had cut pericardium(3cm long) and entered the cavity of left ventricle through anterior wall (4cm long) near the inter ventricular septum. Wound also cut anterior surface of left lung on its lower lobe (5x1x1cm), lung collapsed(2cm long). There is another incised wound on top of left shoulder also. Evidence adduced in this case also proved that immediately after the stab upon the deceased, PW1 ran towards the temple compound by the time he fell down on the way and PW4 who rushed to the scene and cried aloud and PW2 and 3

¶246

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¶247

rushed to the spot to whom PW1 stated about the stab of

¶248

the accused upon him and his father. Then PWs 2 and 3 straight away rushed towards the house of the deceased and could not find him in the house. Thereupon they returned and then they saw the deceased under the coconut tree lying motionless. On reaching the modern hospital his death was declared. So the evidence in this case would go to show that with out much time gap on sustaining the injury he died. PW10 also deposed that death was due to injury No.1. Doctor also stated during cross-examination that death may cause soon after injury No.1. Both PW1 and deceased were unarmed. But accused had come there armed with MO1 knife and inflicted injury upon PW1 initially and when his father came there on hearing the alarm he turned towards the father and inflicted the fatal injury on his vital part. Infliction of such deep penetrating injury upon the vital parts of the deceased, which resulted in the instantaneous death of the deceased, are indicative of the

¶249

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¶250

intention of the accused of causing the death of the deceased coming with in the third limb of S.300 IPC.

¶251

The next aspect is with regard to attempt of murder of

¶252

PW1. No doubt in order to attract an offence under Sec.307 IPC the court has to find whether the act was done by the accused with the intent or knowledge that under the circumstances of the act that caused death, he would be guilty of murder. The intention is also to be gathered from the attending circumstances and not from the consequences of the act alone.

¶253

Evidence adduced in this case would prove that there had an altercation between accused and PW1, at the temple compound and at the instance of people assembled there, PW1 and accused were sent away from the temple compound and PW1 went to his house. Again accused called him over phone and there was some exchange of words in between them. Thereafter when PW1 was going out from his house the accused came near the house of

¶254

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¶255

PW1 and stabbed him at his abdomen and leg with MO1. Only because his father, the deceased, came there for his rescue, PW1 escaped from the further attack. If the accused had no intention to further attack PW1 on interruption by the deceased, he would have left out him without causing fatal injury on the chest of the deceased. Evidence of PW2 and PW3 also prove that after the quarrel at temple compound, accused and deceased were sent away. In spite of that accused came again near the house of PW1 with MO1 after one hour and inflicted injury at the abdomen and leg of PW1. So the intention or knowledge of the accused by inflicting such deep injury with Mo1 on vulnerable part of body of Pw1 can very well be inferred from the circumstances. PW18 is the CMO in Surgery Department, Medical College hospital, Thiruvananthapuram, who treated PW1 and issued Ext.P13 wound certificate would prove that he sustained 3x1x6 cm incised wound left flank below costal margin extending into muscle plane and another

¶256

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¶257

incised wound 5x2x1 cm left leg medial aspect. PW18 also

¶258

deposed that injuries are serious in nature and may cause death and further that the injury is near the kidney. He also stated that injury can be caused by MO1 knife. So the medical evidence also would lead to an inference that the injury sustained by PW1 are sufficient to cause death.

¶259

It is relevant in this context to quote Antony alias

¶260

Appachan v. State of Kerala (1995 KHC 1421)

¶261

wherein a trial under Sec.307 IPC a dagger blow was aimed at the head of the victim and victim raised hand in bid toward the blow and hand severed from wrist. It was found therein that had the hand not been raised in bid to defend, the aim was the head of the victim. The blow aimed would have clearly spelled out the murderous intent of the appellant. It is held that it is from that angle the guilt of the appellant needs to be viewed rather than the result achieved. Hence conviction under Sec.307 was held to be proper.

¶262

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¶263

It is also relevant to quote Hari Mohan Mandal v.

¶264

State of Jharkhand (AIR 2004 SC 3687) wherein while dealing with Sec.307 IPC and the proof of attempt to commit murder it has been held that the determinative question is intention or knowledge coupled with some overt act in execution thereof and not the nature of injury.

¶265

Paragraph 11 is relevant in this context to be extracted

¶266

which reads as under :

¶267

“It is sufficient to justify a conviction under Sec.307 IPC if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under Sec.307 IPC. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt”.

¶268

In this case also only because of the intervention of the

¶269

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¶270

deceased, father of PW1, he escaped from the further attack of accused. When father interfered he was also stabbed to death by the accused. He also reached the spot with Mo1 Knife and inflicted a deep penetrating injury on his abdomen near Kidney and another incised wound on left leg. PW1 and also deceased were unarmed also. So the intention or knowledge of the accused is explicit in the fact situation of the case. So we do not find any reason to interfere with the conviction under Sec.307 IPC also.

¶271

Next is with regard to the sentence. For the offence under Sec.307 IPC also the accused has been sentenced to undergo imprisonment for life and to pay fine of Rs.60,000/in default to undergo rigorous imprisonment for five months. On an evaluation of the facts and circumstances and the nature of injuries sustained by PW1 we are of the considered view that life imprisonment passed under Sec.307 IPC can be altered to that of imprisonment for four years and to pay fine of Rs.60,000/- in default to undergo

¶272

Crl.A.No.763/2016 62

¶273

rigorous imprisonment for five months. In all other aspects conviction and sentence passed by the court below is maintained. Substantive sentence is also directed to run concurrently.

¶274

In the result, conviction passed by the Additional Sessions Judge is confirmed and sentence passed is altered to the above extent under Sec.386 (b)(iii) Cr.P.C.

Sd/-

A.HARIPRASAD Judge

Sd/-

M.R.ANITHA Judge

Mrcs/Shg

Priyan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Priyan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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