Johny, C.No.1175 vs State Of Kerala on 7 July, 2021

[Cites 28, Cited by 2]

Kerala High Court

Johny, C.No.1175 vs State Of Kerala on 7 July, 2021

1. The documents before us reveal the murder of an ill-fated unfortunate woman named Elizebeth@ Mani, by her own son, merely because of the reason that, she could not fulfill his demand of money for his personal needs. The son of the deceased was tried as an accused in S.C No 408/2014 by the Additional Sessions Court-I, Alappuzha and stands convicted for the offences punishable under Sections 341, 324 and 302 of Indian Penal Code. The sentence imposed is imprisonment for life and a fine of Rs 5,000/-. This appeal is filed by the accused challenging the conviction and sentence.

2. The prosecution case is as follows: On 28.05.2013, at 3.45 P.M, the accused came to Srambickal House, House No 1/579 of Mararikulam South Grama Panchayath, where the deceased was living along with her husband Wilson (PW2), and demanded money from her for his personal needs. As she conveyed that she does not have any money to give him, he got infuriated, took out a knife and stabbed on the chest of the mother. Even though she was taken to hospital, with the help of neighbours, by PW2 and his daughter(PW6), who joined them enroute, she succumbed to the injuries on the way. The accused was arrested on the very same day itself.

3. The FIR was registered as Crime No 485/2013 by the Mannanchery Police, on the basis of the First Information Statement given by a Ward member of the Grama Panchayath at 7 P.M on the very same Crl.Appeal No.1190 of 2016 3 day. After investigation, the Circle Inspector, Mararikulam, submitted charge sheet before Judicial First Class Magistrate-II, Alappuzha for the offences mentioned above. Learned Magistrate, after completing the procedural formalities committed the same to the Sessions Court as per proceedings in CP 24/2014. Before the Sessions Court, the prosecution examined PWs 1 to 16, Exts P1 to P24 were marked and MO's 1 to 8 were identified. Ext D1 contradiction in the statement under section 161 Cr.P.C of PW2 was also marked. Thereafter the accused was examined under section 313 of Cr.P.C and all the incriminating evidence were brought to his notice, but he denied the same and reiterated that he is innocent of all the allegations. He also filed a written statement in his defense, by invoking his right under section 233(2) of Cr.P.C, which forms part of the records. In the said statement, he stated as follows; PW2 (Wilson, who is his father) a drunkard used to manhandle him and the other members of his family from his childhood itself. He was brought up under the protection of Rev Fr John Kurishinkal and Fr Thobiyackal of St Augustine Church, Mararikulam and his mother used to visit him in the church. After the death of Fr Thobiyackal, he returned to his house and even at that time, the character of PW2 remained the same. Therefore he left the house, attended various jobs at various places and visited his mother occasionally. The accused was thereafter denied entry to the house by PW2, despite a complaint filed by deceased before the police in this regard. He also alleged about certain incidents of quarrel by Sebastian, the husband of PW6, (sister of accused), with PW2, which ultimately led to the stabbing of the said Sebastian by PW2. He also referred to the arrest of Crl.Appeal No.1190 of 2016 4 PW2 consequent to the said incident and settlement of the said case, by giving Rs 1,50,000/- to the said Sebsatian, which amount was procured by selling their house at Makki colony. Thereafter, father (PW2) and sister (PW6) attempted to appropriate the remaining amount from the sale proceeds of their house at Makki Colony, with the help of the said Sebastian, but mother objected to the same. He also stated that he was not present in the place of occurrence and when he came to know about the death, he questioned PW2 and the said Sebastian, which led to a quarrel between them, and during which, the police picked him up. Later, due to the influence of PW2 and Sebastian, police implicated him in the case as an accused. However, none of the said contentions were substantiated, and this was a completely new case, which was not even put to PW2 and PW6 while they were being cross-examined.

4. The Sessions Court, found the accused guilty on evaluation of the evidence and hence this appeal is filed.

5. Heard Smt.Vijayakumari R., learned State Brief for the appellant/accused and Smt.Ambika Devi S., the Learned Special Government Pleader(Atrocities Against Women and Children). Learned Counsel for the accused asserts that, the accused is innocent of the allegations and he is implicated in a false case. According to her, the evidence of PW2 who is the sole eye witness, cannot be relied upon, as he is an unreliable witness. He was not present at the time of the alleged incident. PW2 and PW6, the father and sister of the accused respectively, were in inimical terms with him and he was implicated in the offence due to Crl.Appeal No.1190 of 2016 5 the same. Similarly PWs. 3 and 4 are planted witnesses and no reliance can be placed upon them. The learned Counsel disputed the recovery of the MO's, particularly, MO1 knife as well as MO2 and MO3 dress of the accused; as manipulated evidence. It is argued that there is inordinate delay of 9 months in submission of charge sheet which indicates that the case was falsely foisted. There is overwriting in the statement recorded of PW2 throwing suspicion on the date recorded. The presence of PW2 is not proved and there is discrepancy as to what was uttered by him after the incident, as stated by PWs 3 to 5 who came to the spot immediately thereafter. Per contra the Learned Special Government Pleader, would support the findings in the judgment of the Sessions Court and consequential conviction and sentence.

6. Before proceeding to consider the case on merits, we shall first examine the contention taken by the learned counsel for accused that there is delay of nine months in submitting the charge sheet and the delay has not been explained by the prosecution. According to the learned counsel, charge sheet under section 173 Cr.P.C should have been filed within 90 days. Since it is filed beyond the said period, there is delay and it is a cooked-up case. It is true that, charge sheet is dated 13.02.2014 and the same is submitted before the Judicial First Class Magistrate Court-I, Alappuzha on 17.02.2014, whereas the date of occurrence as well as the registration of FIR were on 28.05.2013. As per section 173(1) of Cr.PC, every investigation under Chapter XII of Cr.P.C shall be completed without unnecessary delay. Sub section (1-A) of section 173 provides that, Crl.Appeal No.1190 of 2016 6 investigation in relation to an offence under sections 376,376-A, 376-AB,376-B,376-C,376-D,376-DA, 376-DB or 376-E of Indian Penal code shall be submitted within 60 days. Section 173(3) provides that as soon as the investigation is complete, a police report in the prescribed manner is to be forwarded to a Magistrate, who is competent to take cognizance thereof. As per the above provisions, no time limit is prescribed for completing the investigation, with respect to the offences other than those mentioned in section 173(1-A)). As the offence under section 302 of IPC is not among the offences mentioned in section 173(1-A), the time limit prescribed therein is not applicable. The provision applicable in this case is section 173(1), which provides for completion of the investigation, without "unnecessary delay". So the question to be considered is whether there is unnecessary delay in completing the investigation. It is true that the proviso to section 167 (2) of Cr.P.C stipulates a period of 90 days for completing the investigation. The period prescribed in section 167 (2) is a statutory stipulation affecting the detention of the accused and in no manner, it curtails the right of the police to investigate. This is particularly so, as the period of investigation is governed by section 173 of Cr.P.C, and it does not provide for any time limit for offences other than those mentioned in section 173(1-A). The only stipulation therein is that the investigation has to be completed without unnecessary delay. Of course , section 468 of Cr.P.C provides for a period of limitation for taking cognizance of certain offences. However, section 468 does not prescribe any period of limitation for the offences punishable with imprisonment for Crl.Appeal No.1190 of 2016 7 life. This being a case involving an offence punishable with imprisonment for life, what is applicable is section 173(1) and thus, the police were only under an obligation to complete the investigation and submit the charge sheet without unnecessary delay.

7. The expression "unnecessary delay" is subjective in nature, as it depends upon various factors and it may vary from case to case, depending upon the factual scenario, of each case. As mentioned above, in this case, the date of occurrence is on 28.05.2013 and the registration of FIR was also on the very same day, whereas the final report was submitted on 17.02.2014, which is after 264 days of the date of occurrence. While considering the question as to whether the period of 264 days amounts to unnecessary delay, the period of limitation mentioned under section 468 of Cr.P.C will have some relevance. It is to be noted that, the period of limitation prescribed therein is three years for offenses punishable with imprisonment for a term not exceeding three years and the said provision does not prescribe any period of limitation for offences punishable with imprisonment for a term exceeding 3 years. When the period of three years has been prescribed as a limitation for taking cognizance of an offence punishable with imprisonment not exceeding three years, the period of 264 days in filing the charge sheet alleging an offence attracting punishment for a term exceeding three years, cannot be treated as a period which vitiates the investigation or further proceedings based on the same. However if there are other materials, which show that the investigation is bad, it can be considered. We also take note of the fact Crl.Appeal No.1190 of 2016 8 that, the accused has no case that any prejudice was caused to him due to such delay. He did not even avail the benefit of statutory bail under section 167 of Cr.P.C, for reasons best known to him, despite the fact that he was eligible for the same owing to non-filing of charge sheet within the time prescribed in the said provision. Therefore the contention regarding the delay in filing the charge sheet is liable to be rejected.

8. In view of the above, the issue has been scaled down to the question whether there were any other reasons to infer falsity in the investigation. In this regard, the learned counsel for the accused points out that, there is an overwriting in the statement under section 161 Cr.P.C of PW2. We have carefully perused the original records to ascertain the same. There is a correction on the date of the statement of PW2. The date on which the said statement recorded was 21.08.2013, but the same is seen corrected as 31.05.2013, so as to suit the prosecution case; allege the accused. However, on examining the said statement, it can be seen that, at page 2 thereof, it is recorded as follows, "കഴിഞ്ഞ ച ൊവ്വൊഴ്ച (28.5.2013) ഞൊന്‍ വീട്ടില്‍ ഉണ്ടൊയിരുന്നു.". The date "28.05.2013" is referred to as the previous Tuesday of the date on which the said statement was recorded. From the calendar of 2013, it can be seen that 28.05.2013 was indeed a Tuesday, which happened to be the previous Tuesday of 31.05.2013 as well. From this, it can be safely concluded that, the said statement was recorded on 31.05.2013 itself. There is yet another aspect which makes the contention of the learned counsel for the accused in this regard, unsustainable. In addition to the statement dated 31.05.2013(disputed Crl.Appeal No.1190 of 2016 9 statement), a further statement of PW2 was recorded by the police on 05.02.2014. In the said statement, there is a clear reference to the statement made by PW2 on 31.05.2013. In the deposition of PW2, he specifically stated that he had given statements before the police on two occasions. Further, during the cross examination, PW16(investigation Officer) denied the suggestion made by the learned counsel for the accused that there were corrections made in the statements of PW2 and P6 under section 161 of Cr.PC. As the said suggestion referred to the correction made in the statement of PW6 as well, we verified that also. We find that the same is also a very minor correction and it would not in any manner create a shadow of doubt as to the date of the same. Considering all the above aspects, we are of the view that, the contention raised by the learned counsel in this regard is not sustainable and the corrections done, can only be treated as correction of clerical errors and they do not have much significance and is not fatal to the prosecution.

9. When coming to the merits of the case, it can be seen that, the prosecution case is relating to the murder of the deceased by the accused with MO1 knife. Ext P13 is the postmortem certificate . The doctor who conducted the postmortem and issued Ext P13, was examined as PW15. She specifically explained the nature of injury sustained by the deceased, which is specifically mentioned in the Ext P13 certificate. The details of the injury are as follows:

"Incised penetrating wound 3.2 X 1cm on the left side of chest, oblique, its lower inner end being 17cm below top of shoulder and 9cm midline and 3.5cm below anterior axillary folder; both the ends Crl.Appeal No.1190 of 2016 10 were sharply cut. The wound entered the left chest cavity by piercing the Vth costal space, 5cm outer to midline making a clean cut through the medial aspect of middle lobe of left lung, terminated by piercing the left ventricle (3.5 X 1cm) 2cm above its apex. The tract was directed medially and inwards for a depth of 7cm. The left lung was partially collapsed and left chest cavity contained 600 ml of fluid blood and 200 ml of blood clot."

10. The cause of death is stated as follows: "Death was due to the penetrating injury sustained to the chest." Thus, it is evident from Ext P13 certificate and the deposition of PW15 that, the death of the deceased was due to the stab injury. From the above, it is clear that the death of the deceased was a homicide. The learned counsel for the accused highlighted certain discrepancies about the injury as recorded in Ext P13 and also about the possibilities/impossibilities in arriving at the conclusion that the weapon used to commit the crime was MO1. We shall deal with the said contentions at the later part of this judgment, for convenience.

11. As we have found that this is a case of homicide, that takes us to the next question as to whether it is the accused, who committed the said heinous act, as alleged by the prosecution. The crucial evidence, which formed the basis of the findings of the Sessions Court were the depositions of PW2 to PW6. PW2 is an eyewitness and the evidences of PWs 3 to 6 corroborate the evidence of PW2.

12. In this case, the proceedings were set into motion by PW1, who was a Ward Member of the Grama Panchayath. She had not witnessed the incident and according to her, while she was attending a meeting of Crl.Appeal No.1190 of 2016 11 Kudumbasree, she came to know about the incident and immediately she went to the spot. When she reached the spot she saw the deceased being lifted on to an autorickshaw to be taken to the hospital. Later, she went to the Mannachery Police Station and Ext P1 FIS was recorded and Ext P2 FIR was registered, accordingly. While being examined as PW1, she deviated from her FIS in so far as denying having seen the deceased being taken to the hospital but admitted her signature in the FIS. The learned counsel for the accused would specifically refer to the deviation. The Learned Counsel for the accused would further point out that, in Ext P1 she stated that, at the time of the incident, PW2 was not at the spot. However, when she was questioned during her examination about the above mentioned aspects, she denied having made any statements to that effect, before the police. She was declared hostile to the prosecution. Merely because of the reason that, PW1 was a hostile witness, her entire evidence cannot be discarded. It is well settled principle of law that, such part of the evidence of a hostile witness which is found to be credible, could be taken into consideration and it is not necessary to discard the entire evidence. [2019(8) SCC 333(Sudru V State of Chattisgarh) and 2012 (4) SCC 327 (Bhaiju @ Karan Singh V. State o M.P)] The evidence of PW1 would prove that, she reported the incident to the police upon getting information as to the commission of crime. The intimation to police and recording of Ext P1 FIS were clearly stated by PW1 and therefor so much of the contents of the FIS stands proved. There is no legal bar in accepting the evidence to that extent, even though she was declared as a hostile witness. As she is Crl.Appeal No.1190 of 2016 12 admittedly not an eyewitness to the incident, she is not expected to provide any evidence with regard to the details of commission of crime and also as to the persons who were present at the scene of occurrence during the relevant time. Hence, the discrepancies highlighted by the learned counsel for the accused, with regard to the evidence of PW1, are not having any significance.

13. The next is PW2, whose testimony is crucial as he is an eye witness. According to him, accused was a person addicted to alcohol and cannabis. He never was in his proper sense. Though he used to go for fishing earlier, lately he abstained from any work and was just a wanderer. The accused was never in good terms with any one and he often ill-treated his parents and made constant demands for money. PW2 would further point out that, some years prior to the incident in question, PW2 was stabbed by the accused and he was under treatment for two months in the Medical College Alappuzha, including treatment in the ICU for six days. It is further stated by him that, he did not submit any complaint with respect to that incident, as his wife(deceased) had pacified him on the ground that the act was committed by their own son. He would further state that, the accused stabbed his son-in law as well, on one occasion and in connection with the said incident, PW2 was also arrested. Later, the said case was settled between the parties. PW2 would also point out two other incidents of stabbing by the accused, i.e on one occasion, the brother of one George was stabbed and, on another occasion, the accused stabbed a tea shop owner named Vavachan. On both occasions, no complaints were submitted since Crl.Appeal No.1190 of 2016 13 people were afraid of the accused. Even though the accused married a girl, the said relationship lasted only for a month, as the bride went away due to ill treatment of the accused. Earlier, the deceased and PW2 were residing in a house situated in Makky Colony and two years prior to the incident, they sold the house for Rs. 3 Lakhs. Out of the said amount, Rs 75,000/- was given to the accused as his share. He spent all the said amount being unwilling to do any job and resumed demand of money from his parents. The accused is not staying with them and he used to wander without doing any job. PW2 would further state that, on 28.05.2013 he did not go for fishing as he was not well and was resting inside the house. In the morning, the accused came home and asked for money to the deceased mother, but she said she had no money. Then he asked for food and she provided him with food. Thereafter he left by stating that he will come again. Later he came to the house at about 3 P.M and asked for food and she again gave him food. After having food, he left and at 3.45 he came back again and was served with tea by the deceased. Then he asked for Rs 7,000/- to the deceased, which she refused, pointing out that his father was ill and she had no money. At that time, PW2 was lying down inside the house. On hearing this, accused got infuriated and shouted that I will stab you to death and thereupon, PW2 came outside. When he came out he saw the accused standing with a knife and stabbing the deceased on the left side of the chest, by stating that "ഇതു നിനക്ക് ഇരിക്കചട്ട". Due to the impact, the deceased stumbled and fell near a coconut tree. Seeing this, PW2 cried loudly and upon hearing the same, people gathered and among them there were Simon Crl.Appeal No.1190 of 2016 14 ( PW3), his son Sebastian (PW4) and wife Kochuthressia, who are the immediate neighbours of PW2. Seeing the people gathering, the accused retracted to northern side and ran away. Thereafter deceased was taken in an autorikshaw to Thayyil Junction and from there she was taken in an Ambulance to Taluk Hospital, Cherthala. While transferring the deceased to the Ambulance, the elder daughter of PW2, named Saleena(PW6) also joined him, who reached there, upon getting information. She also accompanied him to take the deceased to the Hospital. After examination, the doctors declared that she was brought dead. PW2 identified MO1 knife, MO2 and MO3 dress worn by the accused, MO's 4,5 and 6 dress worn by the deceased and MO's 7 and 8 dhothies , which were used for tying the injury on the body of the deceased.

14. On examination of the evidence of PW2 as a whole, it can be seen that, he had given a precise and graphic description of the sequence of events, as to the incident. Specific contention of the learned counsel for the accused is that, the evidence of PW2 is not at all believable, as he was in inimical terms with the accused. The learned counsel further points out that, PW2 was not present at the relevant time in the scene of occurrence. According to her, PW1 and PW6, who have supported the evidence of PW2, are in inimical terms with the accused and hence it is not safe to base a conviction on such evidence.

15. In support of the said contention the learned counsel is relying upon the judgment rendered by the Honourable Supreme Court in Edward Vs Inspector of Police (AIR 2015 SC 2374 = 2015 (11) SCC 222) . Crl.Appeal No.1190 of 2016 15 We are of the view that, the said judgment is not at all helpful to accused. In paragraph 8 of the said judgment it is observed as follows:

"With regard to contention for the appellant where he has stated that the single eye -witness is inimical towards the accused, in the case of Dalip Singh and others Vs State of Punjab, 1954 SCR 145, it has been held by this Court that, it is true when feelings run high and there is personal cause for enmity, there is tendency to drag in an innocent person against whom witness has a grudge but foundation must be laid for such criticism and each case must be judged and governed on its own facts. In this case we do not see any evidence of eye witness to be inimical towards the accused."

16. From the reading of the above observation, it is evident that, there must be some evidence on record which establishes that there is enmity between the witness and the accused, and the said enmity is the sole reason behind the statements of such witnesses. In the judgment reported in AIR 2001 SC 3173 = 2001 (1) SCC 318 (Anil Rai Vs State of Bihar) this question was more specifically considered. At paragraph 18 of the said judgment, it is observed as follows:

"There is no doubt that PWs 1,2,5 and 6 relied upon and believed by the trial as well as the High Court are not friendly to the accused persons on account of previous existing enmity between them. The admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding Crl.Appeal No.1190 of 2016 16 the existence of enmity. Where enmity is proved to be a motive for the commission of crime, the accused cannot urge that despite proof of motive of the same, the witness proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon may be instrumental for false involvement or for the witnesses inferring and strongly believe that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eye witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for commission of crime cannot be a basis to discard or reject the testimony of the eyewitnesses, the deposition of whom is otherwise consistent and convincing."

17. Thus, the existence of enmity by itself cannot be taken as a ground to disregard the evidence of a witness, if it is found in a scrutiny that, the said evidence is otherwise convincing and consistent.

18. When we apply the aforesaid principles to this case, to examine the contention of the accused regarding the enmity of PW2, first of all we will have to arrive at a conclusion that, there existed animosity between Crl.Appeal No.1190 of 2016 17 PW2 and the accused. We have anxiously considered the evidence of PW2 by keeping the above aspect in mind. It is true that, in the written statement in defense submitted by the accused under section 233(2) of Cr .P.C, he pointed out various circumstances regarding animosity between them. However, apart from the aforesaid statement, there are no materials on record to reasonably infer that, PW2 was keeping enmity against the accused. None of the witnesses have mentioned any thing about PW2, either as a person who maintained an enmity with the accused or as a man of bad character as projected by the accused, despite the fact that, PWs 1,3,4 and 5 are persons having good acquaintance with the family, being neighbours. Similarly, none of the incidents as stated in the written statement of the accused, were mentioned by any of such witness and no attempts were also made by the learned counsel for the accused, to elicit any such information from them, by putting questions during cross examination. Further, PW2 has stated, in response to the question put to him during cross examination, that he stopped drinking at the age of 25 itself. He would further state that, the accused stabbed him once and he sustained serious injuries which forced him to undergo inpatient treatment for two months including treatment in ICU for six days. This incident of stabbing was clearly mentioned by PW6 as well. PW4 also stated that he is aware of the said incident. Despite serious injuries, PW2 had chosen not to submit any complaint against his son, and his explanation for this is that, the deceased never wanted their son to be implicated in a case. Further, from the evidence of PW2 and PW6, it is evident that, the accused was given Rs 75,000/- as his share when their Crl.Appeal No.1190 of 2016 18 house at Makki Colony was sold by PW2. It is also evident that the accused used to visit the deceased in the house of PW2 and there are no materials to arrive at the conclusion that PW2 objected to such visits. Even on the date of occurrence, the accused was served with food and tea on multiple occasions, when PW2 was present in the house. The relationship of the deceased, PW2 and PW6, with the accused are that of mother, father and sister respectively. Unless there are convincing reasons, it cannot be inferred that there is enmity between them. In this case, despite meticulous analysis of evidence, we are unable to find any such reasons to arrive at the conclusion that, there was any grudge whatsoever, on the part of PW2 which would persuade him to implicate the accused in a false case that too for the homicide of the mother.

19. Similarly, the contention regarding the enmity of PW6 also cannot be accepted. Apart from the averments made by the accused in the written statement, there is not even an iota of evidence suggesting any sort of enmity on the part of PW6, who is none other than the sister of the accused. Even though, the learned counsel attempted to bring out a case that PW2 was intending to give the remaining amount from the sale of his house at Makki colony to PW6 as well as to her husband Sebastian and the deceased objected the same etc, there are no materials showing the same. None of the relevant witnesses were cross examined on these aspects and no suggestions were also put to them.

20. On the other hand, there is ample evidence to show that, the accused was a wanderer and a person who will not take any responsibility. Crl.Appeal No.1190 of 2016 19 This aspect is clearly mentioned by PW2 and it is corroborated by the evidence of PW6 as well. PW3 also stated that, the accused used to quarrel with his family members. It is also evident that the accused was present at the scene of occurrence at the relevant time and it is also discernible that, immediately after the incident, he ran away from there. This conduct of the accused is very crucial while evaluating the prosecution case. No responsible person would flee from the spot in such circumstances, when he finds that his mother sustained serious injuries.

21. Further, even if it is assumed for argument sake that, there was some enmity between them, going by the principles laid down by the Honourable Supreme Court in the above judgments, that by itself cannot automatically lead to the conclusion that the evidence of PW2 is as such unreliable. We have also scrutinized the evidence of PW2, on this aspect as well. It is evident therefrom that, he had given clear narration of the sequence of events without any break. The sequence of events as narrated by PW2 is clearly corroborated by the evidence of PW3 and PW4, even though they were declared hostile to the prosecution. In the evidence of PW2, he specifically stated that, hearing his outcry, several persons gathered and among them there were PW3, PW4 and Kochuthressia, who is the wife of PW3 and the mother of PW4. PW3 and PW4, in their evidence have clearly mentioned that, upon hearing the outcry they reached the place of occurrence and thereupon they found the accused, and he ran away from the place. They have also seen the deceased lying injured in a pool of blood. Similarly, PW5, who is another neighbour has also clearly stated in his Crl.Appeal No.1190 of 2016 20 deposition that, he had seen the accused leaving the place of occurrence with a knife in his hand. PW5 has identified MO5 knife as well. All these are valuable pieces of evidence which would corroborate the evidence of PW2 and thereby make his evidence creditworthy, even if existence of animosity between PW2 and accused is assumed; for which assumption we have held, there is no warrant. PW3 and PW4 also though declared hostile that is not a ground to discard the evidence in its entirety and so much of such statements, which supports the prosecution case, can be taken into consideration, if it is otherwise reliable and consistent, as already found by us on the strength of precedents.

22. Another contention put forward by the learned counsel for the accused is that, the accused was not present in the place of occurrence. As discussed above, there are overwhelming evidence in the form of depositions of PW2 to PW5, showing the presence of the accused at the relevant time in the place of occurrence. All of them are witnesses whose presence is quite natural since, all of them were residing in the place of occurrence or in close vicinity thereof. Further, PW3 and PW4 have clearly explained the reason for them being in the place at that hour of the day. Both of them, who are fishermen, have clearly stated that at the time of the incident, they were repairing their fishing net and on that day they have not gone for fishing. Similarly, PW5 has also stated that, on that day he had not gone for fishing. Apart from the above, PW2 specifically mentioned about the presence of PW3 and P4 in the place of occurrence immediately after the incident. In the light of the above crucial evidence, the contention urged by Crl.Appeal No.1190 of 2016 21 the learned counsel for the accused as to his absence at the place of occurrence, is only to be rejected.

23. There is another reason which makes the evidence of PW2 more credible. In the evidence of PW2, he stated that, on seeing the incident, he made an outcry. PW4 and PW5 have clearly stated that this outcry was the reason why they rushed to the place of occurrence. The learned Special Government Pleader points out that, in the evidence of PW4, he has stated that, he heard PW2 saying that, Johny (accused) stabbed the deceased. This statement comes within the scope of section 6 of the Indian Evidence Act, 1872 and it is an admissible statement, despite it being a hearsay evidence, as the principles of res gestae are attracted. The learned Special Government Pleader relies on the judgments reported in 2013 (12) SCC 17 ( State of Maharshtra Vs Kamal Mohammedd Vakil Ansari andd others), AIR 1999 SC 3883 ( Sukhar vs State of U.P), 2011(4) SCC 786 (State of M.P Vs Ramesh andd another) and ILR 2006 (4) Ker 201 ( Biju and another Vs State of Kerala).

24. In the judgment reported in AIR 1999 SC 3883 (Sukhar Vs State of U.P), at para 6, the Honorable Supreme Court was pleased to observe as follows:

"S.6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible.

But for bringing such hearsay evidence within the provisions of S.6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, Crl.Appeal No.1190 of 2016 22 therefore , as forming part of res gestae, must have been made contemporaneously with the acts immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus "Under the present Exception [to hearsay] an utterance is by hypothesis offered as an assertion to evidence the fact asserted (for example that a car brake was set or not set), and only condition is that it shall have made spontaneously, i.e as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that exciting influence continued" "

25. A Division Bench of this Court in Imbayi Vs State ( 1989 (1) KLT 956), set out the essential elements of principles of res gestae as hereunder:

" 13. The essential elements are: (1) The statement or declaration must relate to the main event and must explain, elucidate or in some manner characterize that event, (ii) it must be natural declaration or statement growing out of the event, and not a mere narrative of a past completed affair; (iii) it must be a statement of fact not the mere expression of an opinion: (iv) it must be a spontaneous and instinctive utterance of thought dominated or evoked by the transaction or occurrence itself, and not a product of pre-meditation, reflection or design; (v)Though the declaration or statement need not be coincident or contemporaneous with the occurrence of the event, it must be Crl.Appeal No.1190 of 2016 23 made at such time and under such circumstances as will exclude the presumption that it is the result of deliberation; (vi) it must appear that the declaration or statement was made by one who either participated in the transaction or witnessed the act or fact concerning which it characterizes as to be regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony. Unsworn declaration as part of resgestae depends upon the credibility of the declarant, but derives their probative force from the close connection with the occurrence which they accompany and tend to explain and are admissible as original evidence, although it is frequently stated that they are received under an exception to hearsay rule"

At para 14, of the said judgment it is further observed as follows :

"....................... The statement must be the spontaneous reaction of the person witnessing the crime and forming part of the transaction. Narration of what transpired to third parties will not come within res gestae though admissible under section 157 of the Evidence Act as corroborative. Evidence as to what eye witness said or did at the time of the incident or even evidence of their cries and proof of collateral statements so connected with the facts in issue as to form part of the same transaction are admissible, whether made by witnesses or participants( see Pratapsingh and another Vs State of Madhya Pradesh, AIR 1974 Crl.Appeal No.1190 of 2016 24 SC 778 and Smt Chander Kala Vs Ram Kishan and another, AIR 1985 SC 1268).............."

26. In the judgment reported in 2015 (3) KLT 172 (Ashraf and another Vs State of Kerala) a Division Bench of this court held that, a statement made by the injured as to the identity of the persons assaulted him to a person who came to the place of occurrence immediately after the incident, can be accepted under section 6 of the Evidence Act, apart from the same being admissible under section 32(1) of the Evidence Act.

27. Thus the principle that can be deduced from all the above judgments is that, a hearsay statement can be accepted by applying the principle of res gestae, if it is a contemporaneous statement and interwoven with the facts in issue. In other words, if it is a statement made by the maker thereof, who is either the victim or the person witnessing the incident, spontaneously, while he was under the excitement or shock arising on being part of the incident, it can be accepted as an admissible evidence. Only thing is that, the possibility of afterthought, pre-meditation, design etc should be ruled out.

28. In this case, PW4 has clearly stated that, when he was in his house and repairing his fishing net, he heard the outcry of PW2 that Johny stabbed the deceased and immediately he rushed to the place of occurrence. Upon reaching there, he had seen the accused with a knife and the deceased was lying in a pool of blood. The statement made by PW4 that, "വില്‍സണ്‍ ചേ ട്ടന്‍ ചേ ച്ചിചയ ചേ ൊണി കുത്തി എന്നു പറഞ്ഞു നിലവിളിച്ചു. ചേ ച്ചി എന്നു പറഞ്ഞത് മണിചേ ച്ചി. മണിചയ ചേ ൊണി കുത്തി എന്നു പറഞ്ഞൊണ് നിലവിളിച്ചത് ." is a very crucial statement as it Crl.Appeal No.1190 of 2016 25 specifically names the accused and it is also indicating the commission of the crime by the accused, even though PW4 had not witnessed the act of stabbing. The said evidence is corroborated by the evidence of PW5, who had also mentioned about the outcry. Therefore the above statement is to be accepted in evidence, by applying the principles of res gestae, as the same was made spontaneously by the bystander (PW2), while he was under

the excitement or shock occasioned from witnessing the incident of stabbing of his wife by his own son.

29. At this juncture, the Learned Counsel for the accused, points out that there are some discrepancies as to the exact words used in the outcry reportedly made by PW2. According to her, as per the deposition of PW4, PW2 stated that "മണിചയ ചേ ൊണി കുത്തി" whereas, what was stated by PW3 about the same is that "മണിചയ കുത്തിചയ" . However, a careful reading of the deposition of PW 3 would reveal that, he was only reporting what PW4 stated to him immediately after the incident. The exact statement made by PW3 in his Chief examination with respect to the same is as follows : "വില്‍സണ്‍ ചേ ട്ടന്‍ മണിചയ കുത്തിചയ എന്ന് പറഞ്ഞു നിലവിളിക്കുകയൊയിരുന്നു; അചേ0ൊൾ എചേ2ൊ പ്രശനം ഉണ്ട്, ആചളല്ലൊം ഓടിക്കൂടുന്നതൊയി മകന്‍ പറഞ്ഞു" Here, PW3 was referring to the matter which was reported to him by his son( PW4) . It was PW4 who had actually heard the said outcry legibly and PW3 identified the nature of the outcry, only when it was reported to him by PW4. Thus, eventhough both the said witnesses were referring to very same incident, both the said statements were distinct in it's degrees, i.e one is direct and another is indirect. It is true that, while being cross examined, PW3 reiterated about the hearing of Crl.Appeal No.1190 of 2016 26 the words "മണിചയ കുത്തി" But this statement, when considered along with the statement which he made in Chief examination, leads to the inference that, his understanding of the nature of outcry was influenced by the reporting of the incident made to him by PW4. Hence, the discrepancy pointed out by the learned counsel, is only a possible difference that may occur when it is communicated from persons to persons at different stages of reporting. Therefore, it cannot be treated as a discrepancy in the evidence of PW4. Similarly, the discrepancy, regarding the words of outcry of PW2, as spoken of by PW5, is also not of much significance. He stated that, he heard the words "കുത്തിചയ, കുത്തിചയ". The possibility that, PW2, under shock of seeing his wife stabbed, repeated the outcry in different forms cannot also be ruled out.

30. The learned counsel for the accused further points out certain discrepancies in the recovery of MO1 knife and MOs 2 and 3, dresses of accused. MO1 knife was recovered as per Ext P5 recovery mahazer, wherein it is mentioned that, the same was recovered from the shrubs on the northern side of the place of occurrence. The factum of recovery was proved by PW5 who attested the mahazer and also by PW16 investigation officer. Such recovery was affected based on the information furnished by accused himself and the said confession statement was marked as Ext P5(a). Such recovery is an admissible evidence under section 27 of the Evidence Act. However, the contention put forward by the learned counsel for the accused is that, northern side of place of occurrence from where the recovery was affected is a sandy beach area where there are no shrubs, as it is impossible that shrubs grow on the beach. This contention cannot be accepted. First of Crl.Appeal No.1190 of 2016 27 all there is no evidence that, entire area on the northern side of place of occurrence is a sandy beach Further, under no circumstances, it can be held that no shrubs will grow in a sandy area. Going by the evidence, it is clear that the place from where the recovery was made , is an area near to human habitation and it is not on the beach. In such area, it is natural to have shrubs, and we have no reason to disbelieve the contents of Ext P5 recovery mahazer. Moreover, PW7 who was one of the attestors of Ext P5 recovery mahazer, has clearly stated that, the knife was recovered from the shrubs on the northern side of the place of occurrence. The knife was identified by PW2 as well, who is an eyewitness. There is nothing to disbelieve the said evidence and hence the contention of the learned counsel in this regard is only to be disregarded.

31. Regarding the recovery of MO2 and MO3 dresses worn by the accused at the time of commission of crime, the learned counsel for the accused would contend that, the same were recovered from the house where the victim resided. She would point out that, as per statements of witnesses, the accused left the place of occurrence, which is in the vicinity of the said house, immediately after the incident. He was arrested from another place on the very same day at a later point of time and none of the witnesses have seen him coming back to the house, to keep the dresses there. On analysis of entire materials in connection with the above, we are of the view that there is some force in the said contention. The recovery made vide Ext P6, of MO2 and MO3 appears to be doubtful. However, that by itself cannot be a ground to hold that, the prosecution failed to prove Crl.Appeal No.1190 of 2016 28 that it was the accused who committed the crime. There are other evidences both direct and circumstantial, pointing out the guilt of the accused.

32. The learned counsel disputes the probability of commission of offence using MO1 knife as well, since the knife recovered was not with a firm handle. According to the learned counsel, it is impossible to inflict an injury of serious nature as reported in the Postmortem report, with a knife with such a handle. However, this aspect is clearly clarified by the PW15 doctor, by stating that, if the weapon is one with sharp edge and sharp tip, the firmness of the handle is not material. PW15, categorically stated that, injury noted in Postmortem certificate can be inflicted by MO1. There is no reason to disbelieve the evidence of PW15.

33. Further contention raised by the learned counsel for the accused is that, going by the nature of injury as mentioned in Postmortem certificate, the injury is seen to have caused by a double edged weapon, whereas MO1 knife is only a single edged weapon. The learned counsel specifically brought our attention to the description of injury in the Postmortem certificate which reads as follows: : "Incised penetrating wound 3.2 X 1cm on the left side of chest, oblique, its lower inner end being 17 cm below top of shoulder and 9 cm midline and 3.5 cm below anterior axillary folder; both the ends were sharply cut...............". However, this is clarified by the PW15 doctor by stating that, if weapon is having sharp tip, such an injury can happen and it can be seen that the MO1 knife is a weapon with sharp tip.

Crl.Appeal No.1190 of 2016 29

34. Apart from the above, learned counsel for the accused highlighted several discrepancies such as, (1) even though the residence of the PW3 and 4 were very close to the place of occurrence, they have not heard any quarrel between the accused and the deceased before the commission of the crime and that they heard only the outcry of PW2, (2) that when they reached the place of occurrence, there were other persons gathered there and (3) the incident occurred at 3.45 P.M but the victim was brought to the hospital only after one and half hours.

35. Regarding the contention that, PW3 and PW4 have not heard the quarrel which led to the stabbing, the crucial evidence is that of PW2. In his evidence, it is clearly mentioned about the communication between the accused and the deceased which occurred just before the incident. Such communication was not stated to be a lengthy quarrel or in loud voice. The accused asked for money and when the deceased refused, he took out the knife and stabbed her. The chances of neighbours hearing the exchange between the mother and son is very less. Moreoever, PW3 stated that the place where he was sitting at the time of accident was about 40 meters distant from the place of occurrence. Hence, this contention cannot be accepted.

36. It is true that, going by the evidence, when PWs. 3 and 4 reached the spot, there were several other persons. However, the veracity of the evidence of the said witness cannot be doubted merely because of that reason. Manner of reaction of people cannot be imagined precisely, as the nature of human conduct and reactions are very complex and it depends Crl.Appeal No.1190 of 2016 30 upon various factors and it varies from person to person. Therefore we are of the view that it is not a crucial aspect which can cast a shadow of doubt on the prosecution evidence.

37. Next contention is with regard to the delay in reaching the hospital. The victim was taken to Taluk Hospital Cherthala. According to PW16 investigation officer, the Hospital is situated about 16 Kms away from the place of occurrence. It is true that, PW16 also stated that it will take half an hour to reach there. But in this case, it is evident that, after the accident, the victim was taken in an autorikshaw to Thayyil junction, and from there, she was taken in an ambulance to the Taluk Hospital, Cherthala. Further, PW3 stated that it took half an hour, to take the deceased in the autorikshaw, as the said vehicle reached the place of occurrence a bit late. The factors such as, the probable delay in arranging vehicles, time taken by the respective vehicles to reach respective spots, time taken to transfer the victim from autorikshaw to ambulance at Thayyil Junction, possible traffic congestions enroute etc, would clearly justify the time taken.

38. Thus on an analysis of all the materials, the conclusions can be summarized as follows; The bad character of the accused is clearly proved through the evidence of PW2, as corroborated by the evidence of PW6. The Sessions Court mainly relied upon the evidence of PW2, who is an eye witness, for finding the accused guilty. The evidence of PW2 is convincing. The sequence of events which led to the incident as narrated by PW2, were corroborated by the evidence of PW3 and PW4. Besides the above, the presence of the accused with MO1 knife is proved by PW5 as well. The Crl.Appeal No.1190 of 2016 31 recovery of MO1 is proved through PW5 and Exts P5 mahazer and P5(a) confession statement. The expert evidence of Ext P15 proves the fact that the injury which resulted in the death of the deceased, was caused by MO1.

In the above circumstances, the only conclusion possible is that, the finding of the Sessions Court, holding the accused guilty and consequential conviction and sentence, are to be upheld. Accordingly the appeal is dismissed by confirming the conviction and sentence passed by the Additional Sessions Court, Alappuzha, in S.C No 408/2014.

Sd/-

K.VINOD CHANDRAN JUDGE Sd/-

ZIYAD RAHMAN A.A. JUDGE pkk

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