Kerala High Court
Rajeev vs Sate Of Kerala on 31 January, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:7744
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 31ST DAY OF JANUARY 2025 / 11TH MAGHA, 1946
CRL.A NO. 75 OF 2019
AGAINST THE JUDGMENT DATED 17.05.2018 IN SC NO.394
OF 2014 OF ADDITIONAL SESSIONS COURT - V, KOLLAM
CP NO.60 OF 2013 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -I, KOLLAM
APPELLANT/ACCUSED:
RAJEEV, AGED 38 YEARS,
A/O VAMADEVAN, KAREEPRA VEEDU, K.P.NAGAR,
CHUTTARUVILA MUKKU, KILIKOLLOOR VILLAGE,
FROM NEAR PALKULANGARA TEMPLE,
KILIKOLLOOR VILLAGE, KILIKOLLOOR CHERRY,
KOLLAM DISTRICT.
BY ADVS.
C.RAJENDRAN
SRI.B.N.HASKAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE,
ERAVIPURAM POLICE STATION, KOLLAM,
THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682 031.
ADV. SRI. ALEX M THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
23.01.2025, THE COURT ON 31.01.2025 DELIVERED THE
Crl. A. No.75 of 2019 2 2025:KER:7744
FOLLOWING:
JUDGMENT
Jobin Sebastian, J.
The sole accused in S.C. No. 394/2014 on the file of the Additional Sessions Judge-V, Kollam has preferred this appeal challenging the judgment of conviction and order of sentence passed against him for offence punishable under Section 302 of the Indian Penal Code. 2. The prosecution case can be epitomized as follows:
On 03.01.2013, CW10, deceased Mukesh's wife, visited the ration shop where the accused was working as a helper to purchase sugar. However, the accused refused to give sugar and consequently, there occurred a wordy altercation between CW10 and the accused. Following the same, in the evening, the accused abused CW10 in filthy language. Upon knowing the same, Mukesh, the deceased in this case, who is CW10's husband, reached near the shop room situated on the northern side of Palkulangara temple, where the accused resides on rent, and questioned the accused. Then the accused threatened to do away with the deceased and with an intention to kill Mukesh stabbed below the left shoulder with a knife. Thereafter, the injured Mukesh managed to return to his house from the spot with the stab injury by riding his Hero Honda Motorcycle bearing registration No. KL-02-AK- 4563 and reached the courtyard of his house. When he got off the motorcycle, he collapsed Crl. A. No.75 of 2019 3 2025:KER:7744 down. Then CW3 and CW8 took the injured to N.S. Hospital Palathara and from there to Medical College Hospital, Thiruvananthapuram. From there the injured was taken to Ananthapuri Hospital for better management. Thereafter, on 04.01.2013 at 1.20 p.m., the injured succumbed to the injuries while undergoing treatment. Hence, the accused is alleged to have committed the offence punishable under Section 302 of the Indian Penal Code.
3. On completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court-I, Kollam. As the case was one triable exclusively by the Court of Session, the learned Magistrate after complying with all the necessary formalities committed the case to the Court of Session, Kollam. After taking cognizance, the learned Sessions Judge made over the case to the Additional Sessions Court -IV, Kollam. Thereafter, the case was transferred to the court of Additional Session Judge-V, Kollam for trial.
4. The prosecution, in its bid to prove the charge levelled against the accused had examined 19 witnesses as PW1 to PW19. Exts.P1 to P28 were exhibited and marked and MO1 to MO9 were produced and identified. Contradictions in the 161 statement of prosecution witnesses brought out from the side of the defence were marked as D1 and D2.
After completion of prosecution evidence, when the accused was questioned under Section 313 of the Cr.P.C., he denied all the incriminating Crl. A. No.75 of 2019 4 2025:KER:7744 materials brought out against him in evidence. Thereafter, the accused was directed to enter on his defence. But no defence evidence was adduced.
5. After trial, the accused was found guilty of the offence punishable under Section 302 of the IPC and convicted. The accused was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) with a default clause to undergo rigorous imprisonment for a period of one year.
6. The genesis of this case is a quarrel that erupted between the deceased's wife and the accused at a ration shop where the accused was working as a helper. The dispute began when the accused refused to give sugar to the deceased's wife. According to the prosecution, there occurred a wordy altercation between both of them, and following the same, the accused shouted abuse at the deceased's wife after reaching in front of her house. Upon knowing about the incident, the deceased reached near the rented room of the accused where he was residing, and questioned the accused. Due to the said vengeance, the accused is alleged to have stabbed the deceased with a knife. The incident in this case allegedly occurred on the night of 03.01.2013 at 10.30 p.m., and the injured succumbed to his injuries at 2.30 p.m., on the following day, while undergoing treatment.
7. This is a case in which there is no direct evidence to prove the Crl. A. No.75 of 2019 5 2025:KER:7744 occurrence. The deceased in this case is none other than the first cousin of the accused. In the absence of direct evidence, the prosecution relies on circumstantial evidence to substantiate the charge levelled against the accused. The recovery evidence as well as the scientific evidence also were relied upon by the prosecution to prove the accused's guilt.
8. When a close relative of both the deceased and the accused was examined as PW1, he had given evidence as follows:- The deceased in this case is his sister's son while the accused is his brother's son. On 03.01.2013, at 11.00 p.m., a call came to his wife's (PW6) mobile phone, and the said call was attended by him. The accused who was on the other end of the phone stated that he stabbed Mukesh, the deceased in this case, near to Palkulangara Temple ground. Then PW1 reprimanded the accused and instructed the accused to end the call. Upon receiving the said call when he was about to go to the house of the deceased, he received another call from one Aneesh Kumar. Then Aneesh Kumar informed PW1 that the injured Mukesh told him that he had been stabbed by the accused. The said Aneesh Kumar also requested PW1 to make an enquiry. At around 11.15 p.m., when he reached at the house of Mukesh, he saw Mukesh entering the courtyard of the said house by riding a motorbike. Thereafter, Mukesh got off the bike and fell to the veranda. Then PW1 rushed near to Mukesh and asked what had happened. Then Mukesh told "രാജീവ് കുത്തി". Thereafter, Mukesh was taken to N.S. Hospital Crl. A. No.75 of 2019 6 2025:KER:7744 in a car and as the condition of Mukesh was critical he was referred to Medical College Hospital, Thiruvananthapuram. Feeling that the injured was not getting proper care and attention from the said hospital, Mukesh was shifted to Ananthapuri Hospital, Thiruvananthapuram. On the next day, at around 1.00 p.m., the doctor of Ananthapuri Hospital reported that Mukesh had passed away.
9. PW2 and PW3 are the witnesses to the inquest report, which is marked as Ext.P2. During the examination, both witnesses admitted their signatures in the Ext.P2 inquest report.
10. When a common relative of both the accused and the deceased was examined as PW5, he testified that both the deceased and the accused were his close relatives. He is a Civil Police Officer. On 03.01.2013, at 1.00 p.m., while he was on duty, at Pamba, Mukesh, the deceased in this case called him over the phone and told him that he is standing in front of the shop room where the accused resides. Mukesh further told that for the last two days, the accused had been picking quarrels with his wife and his mother-in-law, and he reached the shop room of the accused to ask about the same.
11. Then PW5 advised Mukesh to return home and assured that he would speak with the accused after coming back from Pamba on Saturday. Thereafter, though PW5 attempted to call Mukesh five times, Mukesh did not answer. When PW5 again called, Mukesh answered the call Crl. A. No.75 of 2019 7 2025:KER:7744 and told him that "രാജീവ് എന്നെ കുത്തി, വീട്ടിൽ വിളിച്ചു പറ". PW5 then contacted PW1 and informed him about the matter told by Mukesh.
12. On the next day, PW5 took leave and came back to his house. Upon knowing that Mukesh, the injured was undergoing treatment in the ICU at Ananthapuri Hospital, Thiruvananthapuram, he went there. At around 1.20 p.m., it was learned that Mukesh had passed away. During the period of occurrence in this case, Rajeev, the accused in this case, was working as a helper in a ration shop. When the deceased's wife (PW7) visited the said ration shop to purchase ration items, the accused refused to give the ration items and hence, there occurred a wordy altercation. Following this incident, the accused after reaching the house of PW7, abused her and her mother in filthy language. Moreover, the accused abused the wife of Mukesh from the house of one Usha. It was upon knowing about these incidents that the deceased approached the accused to ask about it.
13. PW6 deposed that she is a social worker and a Municipal Councillor. The accused in this case is her husband's brother's son, while the deceased, Mukesh, is her husband's sister's son. There occurred a wordy altercation between the accused and the wife of Mukesh, as the accused refused to give ration items to Mukesh's wife, when she approached the ration shop where the accused was working as a helper. Moreover, the wife of Mukesh told her that the accused had been Crl. A. No.75 of 2019 8 2025:KER:7744 spreading scandalous comments about her. On 03.01.2013, at 9.30 p.m., the accused Rajeev visited the factory where PW6 was participating in a strike. When PW6 approached the accused, he claimed that PW6's children attempted to assault him. Then, she instructed the accused to leave the premises. Thereafter, at 10.00 p.m., she found the accused conversing with her two children and Mukesh's wife. Then she asked her children to go to her house and they obeyed. Meantime, the accused also left the place. At around 11.00 p.m., the accused called her twice, but she did not answer. Thereafter, the accused called her son's phone and her husband (PW1) answered. Then PW6 overheard her husband telling the accused to end the call. When she enquired about the conversation, her husband revealed that the accused had stated that "സെന്തിലിനെ കുത്തി പാൽകുളങ്ങര ഇട്ടിട്ടുണ്ട് എടുത്തു കൊണ്ട് പോ". Just then, PW5 called her from Pamba and informed her that the deceased told him over the phone that he had been stabbed by Rajeev, the accused. Immediately, her husband (PW1) and children rushed to the house of Mukesh. Thereafter, her husband and her elder son took Mukesh to the hospital in a car. She also went to the hospital along with the wife of Mukesh.
14. When the wife of the deceased was examined as PW7, she deposed that, the accused in this case is her husband's relative and he was residing in a shop room situated near to the ration shop where he was working as a helper. The incident in this case occurred on 03.01.2013.
Crl. A. No.75 of 2019 9 2025:KER:7744 Prior to the incident on 27.12.2012, she visited the ration shop to purchase sugar where the accused was working. When she demanded sugar for which she was eligible according to her ration card, the accused gave it. When she asked the accused to give her, the sugar that her grandmother was entitled to, the accused refused to give it. Thereafter, on 02.01.2013, when the accused came in front of her house, her grandmother asked the accused why he had not given sugar. Then the accused abused her as well as her grandmother in filthy language. On the next day, the accused again showered abuses against her. She told about the same to her husband, Mukesh and to PW1 and PW6, who are her husband's relatives. When the accused abused her on 03.01.2013, the children of PW1, intervened and sent him away. But, between 9.30 p.m. and 9.45 p.m., the accused returned and verbally abused her again. She immediately informed her husband about the incident. Her husband assured her that he would arrive soon. Meanwhile, PW1 and PW6 intervened and sent the accused away. Thereafter, at around 11.00 p.m., PW5 called him twice over the phone but she was unable to answer as she was then putting her child to sleep. Shortly, thereafter, PW6 called her and when she answered, she heard PW6 and her children crying aloud. Then she rushed to the road and she found a car driving away. Thereafter, she along with PW6 and her son went to the hospital. As her husband's condition was critical, he was referred to Medical College Hospital, Thiruvananthapuram. From there he Crl. A. No.75 of 2019 10 2025:KER:7744 was taken to Ananthapuri Hospital, Thiruvananthapuram for better management. But on the next day, by noon, her husband passed away.
15. The Chief Medical Officer of Memorial Institute of Medical Science at Kollam where the injured was initially taken for treatment when examined as PW12, deposed that on 03.01.2013, at 11.15 p.m., while he was working as CMO of N.S. Hospital, Kollam, he examined one Mukesh and issued a wound certificate. Ext.P7 is the wound certificate issued by him. Referring to Ext.P7 wound certificate, PW12 deposed that on examination, he noted a stab wound on the left infraclavicular region 1 x 1 cm. According to PW12, the alleged history was 'പാൽകുളങ്ങര ക്ഷേത്രത്തിനു സമീപം വെച്ച് പെരൂരുള്ള മണികണ്ടത് വീട്ടിൽ രാജീവ് എന്നയാൾ കട്ടിയുള്ള എന്തോ ആയുധം കൊണ്ട് കുത്തിയതിൽ വെച്ച്' (at 11.30 p.m., on 03.01.2013). The doctor opined that the injury noted by him could be caused as alleged. During cross-examination, the Doctor testified that the history of the injury was stated to him by a bystander named Sasidharan (PW1).
16. The doctor who treated the injured at Ananthapuri Hospital, Trivandrum was examined as PW13. The treatment certificate issued by him was marked as Ext.P8. According to PW13, the patient had a stab injury on the chest and because of that stab injury the patient had pneumothorax and hemothorax and the patient's blood pressure was low upon the arrival at hospital. According to PW13, the patient died on Crl. A. No.75 of 2019 11 2025:KER:7744 04.01.2013 at 1.20 p.m.
17. The Village Officer, who prepared a scene plan after visiting the crime scene was examined as PW17 and the scene plan prepared by him was marked as Ext.P11.
18. The Station House Officer, Killikolloor police station when examined as PW18 deposed that it was he who recorded the FIS given by PW1, and the said FIS was marked as Ext.P12. According to PW18 on the strength of the said FIS, he registered the present case and Ext.P13 is the FIR so registered by him.
19. The Circle Inspector of Police, Iravipuram, who conducted the investigation in this case when examined as PW19 deposed as follows:- On 04.01.2013, he took over the investigation in this case. As part of the investigation, he visited the crime scene and prepared Ext.P14 scene mahazar. The blood-stained soil and soil which was not stained with blood were collected from the crime scene by him for sending the same for FSL examination. On 01.04.2013, after the death of the deceased, he filed a report before the jurisdictional Magistrate, adding Section 302 of the IPC, and Ext.P15 is the said report. On 04.01.2013, he conducted inquest and Ext.P2 is the inquest report. Thereafter, he forwarded the dead body for postmortem examination. On 07.01.2013, at 7.00 p.m., he arrested the accused from the KSRTC bus stand, Kollam. The arrest memo, inspection memo, and custody memo prepared by PW19 were marked as Exts.P17 to Crl. A. No.75 of 2019 12 2025:KER:7744 P19 respectively. According to PW19, on interrogation, the accused made a disclosure statement, and on the strength of the disclosure statement given by the accused and as led by the accused, he reached near the office of Palkulangara Temple and thereafter, the accused took and produced a broken knife from a bushy area of the temple compound near to the office of the temple. The said knife was taken into custody as per Ext.P6 seizure mahazar. When the knife and its handle were shown to PW19, he identified it and marked as MO2. According to PW19, the said knife and its handle were produced before the Court as per Ext.P21 property list. Thereafter, he visited the house of the deceased. Blood stains were collected from the motorcycle kept in the courtyard of the said house as well as from the veranda of the house. Moreover, blood stains were collected from a pair of chappals found at the crime scene and the said chappals were also seized after describing it in Ext.P5 seizure mahazar. The blood-stained rubber chappals so seized were identified by PW19 and the same were marked as MO5 series two in number. Thereafter, the dothi and the shirt worn by the accused at the time of the commission of the offence were recovered by PW19 from the house of the accused. The said items were recovered on the strength of the statement given by the accused and as the same were taken and produced by the accused from his room. Ext.P5 is the mahazar by which the said shirt and dothi were seized. PW19 identified the dothi and shirt which were marked as MO8 Crl. A. No.75 of 2019 13 2025:KER:7744 and MO9 respectively. Thereafter, on the strength of the statement given by the accused, the motorcycle used by the accused for fleeing from the spot after the commission of offence was also recovered from the courtyard of the house of the accused's friend named Shyamlal to where PW19 was led by the accused. The mobile phone used by the accused was also recovered from there. Ext.P26 is the mahazar by which the motorcycle and mobile phone were recovered. The FSL report received after examination of the thondi articles in this case was marked as Ext.P28 through PW19.
20. As already stated, this is a case in which the prosecution mainly relies on circumstantial evidence to prove the guilt of the accused. The law was set in motion in this case on the strength of Ext.P1 FIS given by the father of the deceased to the Station House Officer, Kilikolloor Police Station. However, the said first informant was not examined as a witness as he was no more when the trial of this case commenced. The FIS given by the father of the deceased was marked through PW18, the SHO, Kilikollur, who recorded it, and the FIR consequently registered was marked as Ext.P13. The incident in this case was allegedly occurred on 03.01.2013, at 11.00 p.m. The FIR was registered on 04.01.2013 at 10.00 a.m. Initially, the FIR was registered alleging commission of offences punishable under Sections 341, 506(ii), and 307 of the IPC. Following the demise of the deceased, Section 307 of the IPC was deleted and in its Crl. A. No.75 of 2019 14 2025:KER:7744 stead, Section 302 of the IPC was incorporated.
21. As already mentioned this case is admittedly devoid of direct evidence to establish the occurrence and hence, the prosecution is banging on circumstantial evidence to prove the accused's guilt. Before delving into the circumstances brought out in the evidence in this case, it is apposite to examine the guiding principles governing the evaluation of such evidence. It is trite that each and every incriminating circumstance must be reliable and clinching and the circumstances so proved, must form a chain of events in which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible.
22. In Sarad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622] the Hon'ble Apex Court discussed the nature, character, and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under:
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
Crl. A. No.75 of 2019 15 2025:KER:7744
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
23. A similar view has been reiterated by the Apex Court in Bodh Raj alias Bodha v. State of Jammu and Kashmir [AIR 2002 SC 3164], State of Uttarpradesh v. Satish [AIR 2005 SC 1000] and Subramaniam v. State of Tamilnadu [(2009) 14 SCC 415].
24. In cases built upon circumstantial evidence a complete and unbroken chain of evidence is a requisite. This chain must inevitably lead to the conclusion that the accused, and none other than the accused, could have committed the offence. In other words, to sustain a conviction, circumstantial evidence must be comprehensive and incapable of explanation of any hypothesis other than the guilt of the accused. Thus, such evidence must not only be consistent with the accused's guilt but also inconsistent with his innocence.
25. Keeping in mind the above, while coming to the evidence adduced in this case, it is to be noted that one of the crucial witnesses examined in this case is PW1. Admittedly, the deceased in this case is the son of PW1's sister, while the accused is the son of PW1's brother. During Crl. A. No.75 of 2019 16 2025:KER:7744 examination before the Court, PW1 deposed that on the alleged date of the incident at around 11.00 p.m., the accused made a phone call to his wife's phone and it was PW1, who answered the said phone. According to PW1, the accused then told that 'സെന്തിലിനെ പാൽകുളങ്ങര അമ്പലത്തിന്റെ മൈതാനത്തു കുത്തിയിട്ടുണ്ട്, വേണമെങ്കിൽ എടുത്തു കൊണ്ട് പോ'. Of course, the said statement will amount to an extrajudicial confession. However, when the Investigating Officer was examined, he testified that such a statement was not given to him by PW1 when PW1's statement was recorded under Section 161 of Cr.P.C. during the investigation. The omission to state such a material thing in the previous statement given to the police is a material one which will amount to contradiction. So we are of the considered view that the testimony of PW1 that the accused made an extrajudicial confession to him cannot be believed.
26. The evidence of PW1 further reveals that upon knowing about the incident, when he rushed to the house of the injured and while reached there, he found the deceased entering the courtyard of his house by riding a motorbike and collapsing down in the courtyard after dismounting his motorbike. According to PW1, he then approached the deceased and asked what happened, and then the injured told him that "രാജീവ് കുത്തി". Hence the crucial question to be considered is whether the statement of the deceased made to PW1 that "രാജീവ് കുത്തി" will come within the purview of a statement under Section 32(1) of the Indian Crl. A. No.75 of 2019 17 2025:KER:7744 Evidence Act and can be treated as a dying declaration. However, it would be premature to address this question without first determining whether the evidence of PW1 that such a statement was made by the injured to him is convincingly proven, to act upon it. Though during the chief examination, PW1 testified that the deceased told that "രാജീവ് കുത്തി", when the investigating officer, who recorded the statement of PW1 was examined as PW18, he deposed that such a statement was not given to him by PW1. Notably, no attempt is seen made from the side of the Prosecution to seek any clarification from the Investigating Officer during the re-examination. The said omission creates serious doubt as to whether the deceased made a statement to PW1 that "രാജീവ് കുത്തി".
27. It is true that during the chief examination of PW1, a portion of a statement in the 161 note of PW1, which reads as follows "രാജീവ് കുത്തിയതായി ചെറുതായി പറഞ്ഞു കേട്ടു" was marked as Ext.P1 subject to the objection of the defence counsel. Undisputedly, the said statement ought not have been marked in evidence as it forms part of the witness statement under Section 161 of the Cr.P.C., which is inadmissible. The trial court appears to have disregarded the specific bar contained under Section 162 of the Cr.P.C. and erroneously marked the statement. Therefore, Ext.P1 statement cannot be relied upon to prove that the deceased told to PW1 that it was the accused who stabbed him. Hence, we have no hesitation in holding that the prosecution failed to establish that the Crl. A. No.75 of 2019 18 2025:KER:7744 deceased made a statement to PW1 prior to his death regarding the cause or circumstance of his death.
28. The star witness examined by the prosecution to prove its case is the evidence of PW5. The evidence of PW5 reveals that he is a Civil Police Officer and both the deceased and accused in this case are his close relatives. According to PW5, he came to know about the incident while he was on duty at Pamba. PW5 testified that on 03.01.2013, Mukesh, the deceased in this case, called him over the phone and informed that Mukesh was standing in front of the shop room where the accused is residing. Mukesh, further told that, the accused had been picking quarrels with his wife and her mother and in order to ask about the same, he reached near the shop room of the accused. Then PW5 advised Mukesh to return home assuring that he would speak with the accused after reaching from Pamba on Saturday. Thereafter, though PW5 attempted to call Mukesh five times, he did not attend the calls. When PW5 called again, Mukesh answered the phone and told him that "രാജീവ് എന്നെ കുത്തി, വീട്ടിൽ വിളിച്ചു പറ" Thereafter, he contacted PW1 and informed him about the matters told by Mukesh. The statement of Mukesh, the deceased in this case, made to PW5 that it was the accused who stabbed him will undoubtedly come within the purview of Section 32(1) of the Indian Evidence Act as a dying declaration. While considering the reliability of PW5's testimony, it is significant to note that PW5 is a close relative of Crl. A. No.75 of 2019 19 2025:KER:7744 both the accused and the deceased in this case. There is no indication that he had any vested interest in the outcome of this case. In other words, there is nothing to show that PW5 harbored any grudge or animosity towards the accused that would motivate him to implicate the accused in a serious case like this. Even the accused has no case that PW5 has any animosity towards the accused. Therefore, in the absence of any apparent motive for false implication the evidence of PW5 need not be doubted.
29. Furthermore, when another common relative of the accused and the deceased was examined as PW6, she also testified that immediately after the alleged incident, PW5 contacted her over phone from Pamba and informed her that Mukesh told PW5 that the accused had stabbed him. This evidence of PW6 lends corroboration to PW5's testimony regarding the alleged statement made by the deceased to him.
30. In view of Sec.32(1) of Indian Evidence Act, when a statement is given by a person, written or verbal, to the cause of his death or any of the circumstances resulting in his death in which, case of that person's death comes into question is relevant. When such a dying declaration is proved to be true, it is well settled that, the same can form basis for a conviction even without corroboration. While dealing with the relevancy of a dying declaration, the Hon'ble Supreme Cout in Ravi Kumar v. State of Tamil Nadu [AIR 2006 SC 1448] held that, "The admissibility of dying declaration is based upon the Crl. A. No.75 of 2019 20 2025:KER:7744 principle that sense of impending death produces in man's mind, the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon consideration that the declarant has made it in extremity, when the maker is at the point of death and when every hope of this world is gone when every motive to the falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth.
Notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The court has always to be on guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The court has also to see and ensure that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore the court in order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, has to look for the medical opinion. Once the court is satisfied that the declaration was true and voluntary, it undoubtedly can base its conviction on the dying declaration without any further corroboration. it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely the rule of prudence."
31. Keeping in mind the above, while coming to the evidence in this case it could be seen that the dying declaration was allegedly made by the victim after sustaining a stab injury allegedly inflicted by the accused. The evidence establishes that after being stabbed the injured victim rode his motorbike to his house with the stab injury, and collapsed in the courtyard while dismounting. Absolutely there is no material to show that Crl. A. No.75 of 2019 21 2025:KER:7744 the dying declaration was tainted or coerced, rather it appears to have made voluntarily. The proved facts that after attending the phone call made by PW5 and telling PW5 that it was the accused who stabbed him, the injured went to his house by riding his motorbike itself demonstrates that he was in a fit state to make a statement regarding the cause of his death. Significantly, the dying declaration in the present case was made by the victim, immediately after he was inflicted with a stab injury and subsequently, he went to his house by riding his motorbike. Resutlantly, there is no chance to get a certification by doctor regarding the state of mind or body of the victim.
32. In Lekshmanan v. State of Maharashtra [2002 Cri.LJ.4095 (SC)], it was held that, "The absence of a medical certificate of fitness does not render a dying declaration to be unaccepted. What is essentially required is that the person who records it must be satisfied that, the injured person was in a fit state of mind. Truthful dying declaration can be assured even otherwise".
Moreover, it has come out in the evidence of PW5 that before the incident in this case the deceased telephoned him and told that he was standing in front of the shop room where the accused is residing. The deceased further told that for the last two days, the accused is picking up frequent quarrels with the deceased's wife and mother and it is for asking about the same he reached the shop room of the accused. This evidence Crl. A. No.75 of 2019 22 2025:KER:7744 of PW5 is also relevant under Section 32 of the Indian Evidence Act. The above-said statement obviously portrays the circumstances of the transactions which later resulted in the death of the deceased in this case. Therefore, we have no hesitation in holding that a conviction can be sustained solely on the strength of the dying declaration given by the deceased to PW5, who is a common relative of both the accused and the deceased.
33. The learned counsel for the appellant vehemently argued that if such a statement was made by the injured after the incident to PW5, it was very well possible for the prosecution to prove the said fact by retrieving and producing the call records of the phones used by PW5 as well as the deceased. According to him in the absence of such evidence, the oral evidence of PW5 cannot be acted upon. We do agree that if call records were produced, the same would have lent corroboration to the evidence of PW5, which stated that, there was a telephonic conversation between the deceased and PW5 after the incident. However, the non-production of call details can be treated only as laches in the investigation. It is trite that faulty investigation is not a ground to acquit an accused or to disbelieve the evidence of a witness that is otherwise convincing. The Hon'ble Supreme Court in State of Karnataka v. Yarappa Reddi [1993 KLT 496 (SC)] held as follows:-
"Conclusion of the court in a case cannot be allowed to Crl. A. No.75 of 2019 23 2025:KER:7744 depend solely on the probity of investigation. It can be a guiding principle that, as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation".
It is well settled that, even if the investigation is illegal or even suspicious, the rest of evidence must be scrutinised independently of the impact of it. Otherwise criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casually for the wrongs committed by the investigating officers in a case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit in investigating officer's suspicious role in the case."
34. Needless to say, the question of corroboration arises only when the substantive evidence is doubtful. We have already found that the testimony of PW5 that, immediately after the incident the injured informed him over the phone that "രാജീവ് എന്നെ കുത്തി" is convincing and reliable. Though PW5 was subjected to roving cross-examination nothing was brought out to discredit or disbelieve the evidence of PW5. As PW5 will come within the category of wholly reliable witness, there is no need to search for corroboration. Nevertheless, as already stated the evidence of PW6 that immediately after the incident PW5 contacted her and informed that the deceased stated to PW5 that it was the accused who stabbed the deceased, will lend corroboration to the case of PW5. Therefore, the Crl. A. No.75 of 2019 24 2025:KER:7744 non-production of call records has no significance in this case.
35. The doctor who conducted the autopsy when examined as PW14 deposed that on 05.01.2013, while he was working as Assistant Professor in Forensic Medicine at NCH, Thiruvananthapuram, he conducted post-mortem examination of the body of the deceased and issued Ext.P9 postmortem certificate. Referring to Ext.P9, the doctor deposed that he had noticed the following antemortem injuries in the post-mortem examination:-
"1. Stapled incised penetrating wound 2cm long oblique on front of left side of chest, with its rounded upper out end, 6cm below top of shoulder and 12 cm outer to midline with gaping margins. Its lower inner end was sharply cut and showed tailing for a length of 1cm directed downwards and inwards. The chest cavity was seen penetrated by cutting through the 1st intercostal space and terminated on the outer surface of upper lobe of left the right for a total minimum depth of 2cm. Left chest cavity contained 500 ml of fluid blood and 100 gm of clot.
2. Incised surgical wound 2cm long, oblique on outer aspect of left side of chest, lower inner end 15cm outer to midline and 20cm below top of shoulder, entering the chest cavity between III and IV ribs.
3. Abrasion 1 x 0.4 cm horizontal on left side of lower lip 1.5 cm inner to left angle of mouth.
4. Abrasion 0.3 x 0.2 cm on tip of left shoulder.
5. Linear abrasion 4cm long oblique on front of left side of chest, upper outer end 11cm outer to midline and 10cm below collar bone.
Crl. A. No.75 of 2019 25 2025:KER:7744
6. Abrasion 1.5 x 1cm on front of left side of chest 2.5cm outer
to midline and 14cm below collar bone.
7. Abrasion 1 x 0.2 cm, horizontal on front of left side of chest,
6cm outer to midline and 20cm below collar bone."
Referring to Ext.P9 postmortem certificate, the doctor opined that the death was caused due to the incised penetrating wound sustained to the chest which is shown as injury No. 1 in the postmortem certificate. When the doctor was confronted with MO2 knife, he opined that the injury No. 1 noted by him can be inflicted by using a weapon like MO2. A conjoint reading of the evidence of PW14, the Doctor, and Ext.P9, the post-mortem certificate issued by him reveals that the death of Mukesh was a homicide.
36. From the line of cross-examination and from the statement given by the accused, it can be seen that the accused is having a case that there occurred a quarrel and a scuffle between Mukesh, the deceased in this case, and one Athul who is the son of PW1 and PW6 inside the house of PW6. During the said scuffle, Athul stabbed Mukesh with a knife, which resulted in his death. According to the accused thereafter, PW1 and PW6 influenced the police and falsely implicated him as the accused in this case. Though a case as stated was canvassed from the side of the accused, no materials whatsoever were produced from his side to substantiate the same. Even though some suggestions were put in that Crl. A. No.75 of 2019 26 2025:KER:7744 line, when PW1 and PW6 were in the box, both witnesses denied those suggestions vehemently. Needless to say, the mere putting of suggestions will not tantamount to proof or not be a substitute for proof. Moreover, from the evidence it is established that the place of occurrence is near to the rented shop room of the accused which is near to Palkulangara Temple. When the watcher of the said temple was examined as PW4, he deposed that on the alleged date of the incident between 10.00 and 10.30 p.m, he heard a conversation from near the place of occurrence and when he watched, he saw one person going to the northern side of the temple by riding a bike and another one going to the southern side of the temple riding another bike. The evidence of PW5 that when he contacted the deceased immediately prior to the incident in this case, the deceased told him that he was standing near the rented shoproom of the accused also needs to be considered at this juncture. Moreover, the evidence of PW19, the investigating officer shows that he collected blood-stained soil (MO3) from the place of occurrence after describing in scene mahazar. Notably, in Ext.P28 FSL report it is mentioned that when MO3 soil which is shown as item No. 4 in the said report was subjected to chemical examination human blood was detected. Therefore, a conjoint reading of evidence of PW4, PW5, and Ext.P8 FSL report clearly establishes that the place of occurrence in this case is near to the rented shop room of the accused near to the Palkulangara Temple and not inside the house of PW1 as Crl. A. No.75 of 2019 27 2025:KER:7744 claimed by the accused.
37. The evidence of PW19, the investigating officer reveals that on interrogation, accused after his arrest, the accused had given a disclosure statement, and on the strength of the said statement PW19 effected the recovery of MO2 knife, the weapon of offence in this case as per Ext.P6 recovery mahazar. The relevant portion in the confession statement of the accused which led to the recovery of MO2 knife noted in Ext.P6 mahazar and proved through PW19 was marked in evidence as Ext.P6(a). PW19 categorically deposed that on the strength of the disclosure statement given by the accused and as led by the accused he reached near the office of the Palkulangara Temple and from a bushy area of the temple compound near the office of the temple, the accused took and produced a knife and its handle to PW19. PW19 identified the said knife and handle and marked as MO2. The recovery of weapon of offence on the strength of the disclosure statement given by the accused will definitely strengthen the case of the prosecution. Furthermore, in the FSL report which is marked as Ext.P28, it is specifically stated that MO2 knife accompanied by its handle which are shown as item Nos.10 and 11 in the said report was subjected to Benzidine test and blood was detected in both the said items. Moreover, in the gel diffusion test, the blood found on the said items were determined to be human in origin. Similarly, Ext.P28, FSL report shows that the dothi (MO8) and shirt (MO9) worn by the Crl. A. No.75 of 2019 28 2025:KER:7744 accused at the time of the commission of the offence and recovered from the house of the accused by PW19, were also subjected to FSL examination and the same are shown as item No. 2 & 3 in the FSL report respectively. In the report, it is mentioned that human blood was detected in item No. 2 dothi. Moreover, though blood was detected in item No.3 shirt, the origin could not be determined as the blood contained was insufficient for determining the origin.
38. In short, after careful consideration, we have no hesitation, in holding that the prosecution has successfully proven the accused's guilt beyond a reasonable doubt. The compelling circumstances meticulously examined above, inexorably lead to the conclusion that it was the accused who murdered the deceased. The fact that the prosecution succeeded in proving the motive behind the commission of the offence will go a long way in proving the case particularly when this is a case built upon circumstantial evidence. The dying declaration made by the deceased to PW5 immediately after the incident is, in itself, sufficient to establish the accused's guilt. As already discussed the evidence of PW5 to whom the dying declaration was made, is credible and trustworthy. Even the accused does not have a case that PW5 harbors any grudge or animosity towards him that would motivate PW5 to implicate him in this case. Moreover, the recovery of the weapon of offence at the instance of the accused will also form a link in the chain of evidence adduced against the accused. The Crl. A. No.75 of 2019 29 2025:KER:7744 scientific evidence also will lend substantial support to the prosecution's case.
39. Hence, we confirm the finding, conviction, and sentence passed by the learned Session Judge in S.C. No.394/2014 on the file of the Additional Sessions Court-V, Kollam, for offence punishable under Section 302 of the Indian Penal Code.
In the result, the appeal stands dismissed.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
DCS/ncd