Sunil Kumar @ Suni vs The State Of Kerala on 31 March, 2012

[Cites 43, Cited by 1]

Kerala High Court

Sunil Kumar @ Suni vs The State Of Kerala on 31 March, 2012

Accused 1 and 2 in SC No. 382/09 on the file of Additional Sessions Judge-I, Mavelikkara are the appellants. They challenge judgment dated 31/3/2012 by which they were convicted for offences punishable under Sections 450, 326, 341, 115, 307, 302 read with Section 34 of Indian Penal Code (IPC). They were sentenced to undergo imprisonment for life and to pay a fine of `50,000/- each for the offence u/s 302 IPC and in default of payment of fine to under RI for 18 months each. They were sentenced to undergo RI for 10 years for the offence under Section 307 IPC and to pay a fine of `25,000/- each in default of payment of fine to undergo RI for one year each. No separate sentence was imposed for the offence under 326 of IPC. They were also sentenced to undergo RI for 3 years each for the offence under 450 IPC.

2. The case against the appellants were charge sheeted in CRA No.768/12 -:2:- respect of an incident that occurred at 6.45 pm on 3/2/2007. According to the prosecution, the first accused along with accused 2 and 3 criminally trespassed into the courtyard of PW2's house with a sword and inflicted injuries on PW's1, 2, and 5 and commited murder of Kochupennu.

3. Kochupennu is the wife of PW2 and mother of PW1, PW4, PW5 and PW6. The prosecution alleges that at about 6 pm on 3/2/2007, 1st accused while coming in a motor cycle deliberately hit Kochupennu with the handle of the motor cycle. On seeing this PW5 came running with a sickle and brandished at 1st accused and he got injured. This incident sparked another incident at 6.45 p.m. by which the first accused armed with a deadly weapon along with accused 2 and 3 had come to the house of PW2 and inflicted injury with the sword stick on the right hand of PW2. He suffered fracture to the bone of the upper arm and also cut injury to the muscles of the upper arm. The first accused with the very same sword stick caused cut injuries on the left hand and left forehead of PW5. He further inflicted cut injuries with the sword stick on the left forehead and left forearm of PW1, who also suffered fracture to the bones of the forehead and left forearm. CRA No.768/12 -:3:- 2nd accused Gireesh caught hold of Kochupennu on her hand and the 3rd accused on her hair and restrained her. The 3rd accused directed the first accused to do away with Kochupennu. The first accused caused a cut injury with the sword stick on the middle left side of the head of Kochupennu causing fracture to the skull bone and brain matter oozed out through the injury. The injured were taken to the hospital and Kochupennu succumbed to the injuries at 5 am on 4/2/2007.

4. Crime No.59/2007 was registered on the basis of a statement given by PW1. After conducting investigation, final report was filed before the Judicial First Class Magistrate I - Chengannur and the matter was committed to the Court of Sessions, Alappuzha. Charge was framed and explained to the accused. They pleaded that they were not guilty. Prosecution examined PWs 1 to 19 and placed reliance on Exts.P1 to P27 and identified material object, MO1. The accused was questioned under Section 313 Cr.P.C. They denied the incriminating circumstances and examined DW1 and DW2 and marked Exts.D1 to D9(e). Court below found that accused 1 and 2 were guilty. 3rd accused was acquitted by giving the benefit of doubt. CRA No.768/12 -:4:-

5. Learned counsel for appellants raised several contentions in order to highlight that the prosecution was unable to prove the case beyond reasonable doubt. On the other hand, learned Public Prosecutor supported the judgment of the Court below and argued that the prosecution had clearly proved the offence against the accused and no interference is required in the matter.

6. Following are the main contentions urged by the learned senior counsel for the appellants. The following are the contentions urged by the counsel for appellants.

(i) The genesis of occurrence has not been correctly stated and proved by the prosecution.

(ii) Evidence of PW1 is not in accordance with the statement given in Ext.P1, First Information Statement (FIS).

(iii) All the injured persons who are eye witnesses to the incident have given three different versions.

(iv) The motive alleged is not proved.

(v) The injuries on the accused are not explained.

(vi) Court had relied upon 161 statement which cannot been treated as evidence.

(vii) Complicity of second accused to the crime is not CRA No.768/12 -:5:- proved.

7. PW1 has given FIS, which is marked as Ext.P1. In Ext.P1, the narration of the incident by PW1 is as under:-

That accused 1 and 2 came to their house at about 6.45 p.m. on 3/2/2007 and inflicted injuries on them viz., himself, his mother Kochupennu, his father Bhaskaran and his brother Prakash. Statement was given by him at about 2.30 a.m on 4/2/2007 while he was in the casualty ward of Medical College Hospital. He further stated that by about 6.30, when he was returning back to his house after work, he saw his father and mother talking to the mother of the first accused. While he was in the verandah, he saw the first accused coming from the southern side. The handle of the motorcycle hit on his mother. Mother cried. 1st accused threatened them. His elder brothers Prasad and Prakash were also in the house. They apprehended that he may come back for creating a problem and so they thought of informing the matter to one Bose, who was a member of Dalit Panthers. He along with his brothers, father and mother went through the western road. A little away, father asked Prakash to change his shirt. Mother got the shirt from Prakash and went CRA No.768/12 -:6:- home. At that time, first accused with second accused came through the pathway. They had 'U?_U^Z' (sword stick) with them. Sunil inflicted an injury with the sword on his mother's head. Mother fell down in the courtyard. PW1, his father, Prakash and Prasad came running. Second accused inflicted a blow on the right hand of his father. A2 (Gireesh) also inflicted a blow with the sword on Prakasan's head. He suffered injury on his head and hand. 1st accused hit him with the sword on his left hand. Father ran into the house. 1st accused went behind him and inflicted an injury on his hand. When Sunil (A1) and Gireesh (A2), saw Prasad running towards them, they ran away. He further stated that his brother Prasad had some doubt that his wife, Sheeja, was having an acquaintance with 1st accused. The mother of 1st accused on the same day had come to their house and talked about the same. Sunil therefore had a grudge. It is in connection with the said issue that they had come with the sword and had inflicted injuries. He also identified MO1.

8. PW1, Pramod in his evidence stated that after the incident which occurred due to the hitting of the bike's handle on Kochupennu, when they reached the courtyard of their house, A1 CRA No.768/12 -:7:- and A2 came with a sword. The first accused inflicted a blow on their father (PW2) who was standing on the southern side. Thereafter, first accused inflicted a blow on Prakasan (PW5), who suffered head injury. PW1 got frightened and went inside the room. Sunil (A1) followed him inside the room and he was hit thrice, with the sword. He also suffered grievous injuries. Mother ran to the road. Gireesh caught hold of mother's hand. A3, caught hold of her hair. First accused inflicted injury on her head and body three four times. At that time, he saw some injury being inflicted on Gireesh. Mother fell down. Thereafter, she did not speak. People in the locality gathered and the accused ran way. All of the injured were taken to Chengannur Hospital. Since the injuries were serious in nature, they were taken to Medical College Hospital. Prakash and father were taken to the observatory block and mother was taken to the ICU. He has given the FI statement. At the time of giving FI statement, he did not know about the death of his mother and a further statement was given to the police after knowing about her death. There was enough light in the locality to see the incident. He also identified MO1 sword. The witness was later recalled and he was further CRA No.768/12 -:8:- cross examined. He was asked as to who was injured first. His answer was that Prakash PW5 got injured. Mother got injured near the well. She fell by the side of the well. Well is near the house. The distance is very small. They have only 4 cents of property inside a colony. When the mother got injured, he was standing near the verandah after getting injured. When he was confronted with Ext.P1, he stated that he does not remember and some of the details were not correct.

9. PW2 is the husband of Kochupennu. In his evidence, he stated that the incident happened at about 6.00 p.m. on 3/2/2007. He got injured by 6.45 p.m. He came back after having a tea. At that time, his wife Kochupennu and son Prakasan (PW5) were there. Both were standing in the courtyard. When he asked them as to why they were silent, he was told that first accused had come at around 6.00 p.m. in a motorcycle and the motor cycle handle was deliberately hit on Kochupennu. She was crying. Prakash (PW5) had a confrontation with the first accused. First accused went back stating that he will take care of them. The younger son Pramod (PW1) came and told that first accused will come for creating problem. They decided to go and meet the CRA No.768/12 -:9:- leader of first accused. When they were standing in front of their house, all the three accused had came. He was standing on the southern side of the house. First accused came running and inflicted an injury on his right hand. He fell down. First accused inflicted a blow on Prakash (PW5). He was attacked two three times and he fell down. Pramod (PW1) went inside the house. He was attacked inside the house. On seeing this, his wife started crying. She got out. When she reached the road on the northern side, A2 went and caught hold of her hands, A3 caught hold of her hair and A3 uttered to the first accused to kill the lady. The first accused ran towards his wife and inflicted cut injuries on her with the sword two three times. 2nd accused also suffered some injuries. Thereafter, the accused left the place. People in the locality came and since the injuries were serious, they were taken to the Medical College Hospital.

10. PW3 is the daughter-in-law of PW2 and Kochupennu. She was a witness to the incident. According to her, by about 6 o' clock in the evening on 3/2/2007, the first accused came in a motor cycle. The handle of the vehicle hit on her mother. She saw PW5 coming towards them with a sickle. A1 told him that he will CRA No.768/12 -:10:- take care of him and went in his motor bike. At about 6.45 p.m. Sunil came with a sword and inflicted injury on the right hand of her husband and inflicted injury on PW5 Prakash. He suffered injury on his hand and head. Thereafter, she corrected herself by stating that Pramod was attacked inside the house. Prakash and father were attacked in the courtyard of the house. On seeing this, mother got frightened and ran towards the pathway. A2 caught hold of mother's hands and the 3rd accused on her hair. On the direction of 3rd accused, the first accused inflicted injury on mother's head. She fell down unconscious. They shouted. People in the locality came and they were taken to the hospital.

11. PW5 is Prakash who was also injured in the incident. He also narrated the incident. He further stated that he heard that his brother's wife Sheeja and the first accused were having some relationship. His brother scolded his sister-in-law. She went to her house with the children. By about 5.00 p.m., his brother Prasad and Sunil had a confrontation. Thereafter, when the mother was walking through the road, first accused came in a motor bike and hit on her. PW5 and A1 had a fight. He retorted by saying that he will take care of them and went in the motorcycle. In the evening, CRA No.768/12 -:11:- when their father came back after work, he informed the matter to the father. They talked to the mother also. Pramod PW1 also came after work. They decided to inform the matter to Bose, leader of first accused. When they were waiting at their house, first accused came with a sword and inflicted blows on him and father several times. Pramod was inside the house. Father and PW5 fell down. He identifies MO1. He entered the room and attacked Pramod PW1. Mother ran out and reached the pathway. 3rd accused caught hold of her in hair. Brother of first accused caught hold of her hands. 3rd accused asked first accused to kill her. The first accused inflicted a blow on his mother. She fell down. At this time, he saw Prasad (PW6), their bother coming from a distance. Thereafter, he does not remember anything.

12. The first incident is spoken by PW3 and PW5. They deposed that the 1st accused came in a bike and deliberately hit their mother (Kochupennu) with the handle of the bike. PW3 deposed that on seeing the incident PW5 came running with a sickle. PW5 deposed that he had a quarrel with 1st accused. Sunil (A1) uttered to PW5 that "he will come back take care of him", and proceeded further in his motorbike.

CRA No.768/12 -:12:-

13. The second incident happened at 6.45 p.m. Accused 1 to 3 came together. A1 had a sword with him. He attacked PW1, PW2, PW5 and Kochupennu. PW1, 2, 5 and Kochupennu suffered severe injuries. Kochupennu fell down unconscious and later died in the hospital.

14. In Ext.P1, FI statement, the first overt act was Sunil (A1) inflicting a blow on their mother. Second overt act was by Gireesh (A2) inflicting cut injury on the right hand of father. Third overt act is also by Gireesh (A2) who attacked PW5 on his head and hand. Fourth overt act is by the first accused inflicting injuries on PW1. Fifth overt act is by Sunil (A1) chasing father inside the house and inflicting a cut injury on the father's hand. When Prasad (PW6) came, accused 1 and 2, left the place.

15. Apparently, the name of 3rd accused was not mentioned in the FI statement. He had only stated that the mother of first accused had come to their house knowing about the doubt expressed by PW6 in regard to the relationship his wife Sheeja had with first accused. On account of the said incident, first accused had enmity with the members of their family. While giving FI statement, PW1 has not mentioned about the presence CRA No.768/12 -:13:- of A3 during the said incident. But when he was examined before Court, her presence was specifically mentioned and further the incident spoken to by him was that A1 was having the sword. First, A1 attacked their father (PW2), who fell down due to the injury, then he attacked PW5, Prakash, he chased PW1 inside the house and attacked him with the sword. As far as A2 is concerned, he was holding Kochupennu's hands and it is thereafter A1 inflicted injury on the head of Kochupennu with the sword.

16. Further, in Ext.P1, FI statement, it was stated that PW1, PW2, PW5 and Kochupennu decided to meet Mr.Bose and they proceeded through the road on the western side. After a while, father asked Prakash (PW5) to change his dress. Mother took his dress and went back home. It is at that time they saw Sunil and Gireesh coming through the pathway to their house. It is argued that in the evidence PW1 did not say about the aforesaid incident whereas according to them, they only decided to go to meet Bose. They were all in their house.

17. Similarly, PW2 deposes that while he was standing on the southern side of the house, first accused came and inflicted CRA No.768/12 -:14:- an injury on his right hand with a sword. He fell down. A1 attacked PW5 two, three times. PW1 went inside the house. He was also attacked. Wife came from the house crying and thereafter she was attacked. PW3 deposed that 1st accused attacked PW5 and PW2 in the courtyard. PW! went inside the house. He was attacked inside the house. Mother got down and ran towards the pathway on the northern side where she was attacked. PW5's version is that 1st accused had come and attacked him and his father (PW2) several times They were standing in the courtyard. PW1 was inside the house. He was attacked inside the house. It is thereafter that the mother was attacked.

18. Before Court, all these witnesses have a consistent case. PW2 and PW5 were attacked while they were in the courtyard of the house. PW1 was attacked inside the house and mother thereafter near the pathway.

19. Of course, there is clear disparity between the sequence of events spoken to by PW1, 2, 3 and 5 before Court in comparison with Ext.P1 statement.

20. But it is relevant to note that Ext.P1, FI statement was given at 2.30 in the morning on 4/2/2007. PW1 (Pramod) was CRA No.768/12 -:15:- also injured. The entire incident would have been over within a short time. In that short time, when all the family members are being attacked, he may not actually remember as to from where they were being attacked. All of them clearly speak about the presence of A1 and A2. Of course, in the FI statement, presence of A3 is not mentioned. But the presence of A1 and A2 has been clearly mentioned. FI statement was given by him when he was in the hospital, injured and during midnight hours. His condition was that he had injury on his head and his left hand. The injured were initially taken to the Chengannur, Government Hospital and thereafter were taken to the Medical College Hospital. When an injured is giving a statement, the sequence of events as to who was initially attacked etc., may not be known to him immediately. The situation would have been so tense and they may not immediately recollect as to what happened in that terror situation. The situation was that two persons, one holding a sword and other having a weapon came and inflicted severe injuries on all the members of the family including their mother.

21. The learned counsel for the appellants placed reliance upon the following judgments to contend that a discrepancy in the CRA No.768/12 -:16:- FI statement will speak out the falsity of the case. He also relied upon the following judgments:-

(i) Ishwar Singh v. State of Uttar Pradesh (AIR 1976 SC 2423). Paragraphs 7 and 9 being relevant reads as under:-

"7. We therefore find it difficult to accept that the trouble started in the way suggested by the prosecution witnesses. The defence case is that on February 13, Mahabir had demolished the drain constructed by Ishwar Singh and on February 14, Satyapal, Dharmpal, Jaipal, Pritam, Mahabir Singh, Ghanshyam and two other persons came in a body and attacked Brahm Singh and Harpal. The defence version, which was sought to be proved by D. W. 4 Gangan, adds that the incident took place on the vacant land in front of Mahabir's house. According to this witness, Satyapal had a ballam, Mahabir had a bhalla and the rest had lathis. The witness also says that Chauhal Singh was not present there and no one died at that spot. Dr. R. K. Jain who was on emergency duty in P. K. Sharma Hospital, Meerut, on February 14, 1973 was examined as D. W. 1. His evidence is that he medically examined Brahm Singh on February 14 and found ten injuries on his person like contusions, abrasions, lacerated wound, and a swelling 10 cms. x 8 cms. on front side of the right knee. Dr. R. C. Bhatia (D. W. 2) Radiologist in P. L. Sharma Hospital who took x-ray photograph of Brahm Singh's right knee, says that the x-ray plates showed that Brahm Singh's "right patella bone CRA No.768/12 -:17:- fractured into several pieces." Dr. V. P. Aggarwal (D. W. 3), Medical Officer in the same hospital, examined Harpal on February 14 and found 11 injuries on different parts of his body including contused wounds on the top and the left side of his head, Harpal was admitted to hospital and his head injuries were kept under observation. The prosecution witnesses who were injured are P. W. 1 Mahabir and P. W. 2 Satyapal. Mahabir had a contusion on the left thigh and a skin deep lacerated wound on his right thumb. Satyapal had six injuries on his person including contusions, abrasion, a lacerated wound and a skin deep incised wound on the left side of his forehead caused by some sharp-edged weapon. As already stated, the other witnesses named in the F.I.R. who had also received injuries were not produced. Post-mortem examination of Chauhal Singh, deceased, revealed one "sharp punctured wound 2 cm. x 1 cm. x chest cavity on the left side of chest", and several abrasions, one lacerated wound 2 cm. x 1/2 cm. bona deep and traumatic swelling 13 cms. x 11 cms. on the left side of the head. According to the doctor the punctured wound was caused by some sharp and piercing weapon and the lacerated wound and the swelling were caused by some blunt weapon. The infirmities in the prosecution case make it difficult to believe that the trouble originated in the manner alleged by the prosecution. Having regard to the injuries sustained by some of the prosecution witnesses and also by two of the accused, it seems that there was a free CRA No.768/12 -:18:- fight between the two sides. The defence version of the occurrence may not also be quite true, but considering all the circumstances we do not think it is possible to say with any certainty that the accused were the aggressors though undoubtedly the prosecution side got the worse of it after the fight was started. If really the accused were not the aggressors, no case either under Section 147 or Section 148 of the Penal Code can be maintained against them, and then it is for the prosecution to prove the individual assaults of which there is no evidence. The conviction of appellants Ilam Singh, Harpal, Brahm Singh and Deep Chand under Section 326, Section 324 and Section 323 of the Penal Code, founded against each of them on the basis of Section 149 of the Code is not therefore sustainable. "

"9. We have pointed out that the trial Court in convicting the appellants overlooked certain significant features of the case, namely, the inordinate and unexplained delay in dispatching the first information report to the Magistrate; the difference in the account given by the prosecution witnesses and as appearing from the first information report of the occurrence; the absence of any statement in the first information report as to the injuries received by some of accused, and the non-examination of material witnesses. The High Court in affirming the Judgment of the trial Court also failed to advert to these circumstances. We do not therefore think that the case against the CRA No.768/12 -:19:- appellants has been proved beyond reasonable doubt. The appeals are accordingly allowed and the order of conviction and the sentences passed on the appellants are set aside. We direct that the appellants be set at liberty forthwith."

(ii) Thulia Kali v. State of Tamil Nadu (AIR 1973 SC

501) Paragraph 12 reads as under:-

"12. It is in the evidence of Valanjiaraju that the house of Muthuswami is at a distance of three furlongs from the village of Valanjiaraju. Police station Valavanthi is also at a distance of three furlongs from the house of Muthuswami. Assuming that Muthuswami PW was not found at his house till 10.30 p.m. on March 12, 1970 by Valanjiaraju, it is not clear as to why no report was lodged by Valanjiarju at the police station. It is in our opinion, most difficult to believe that even though the accused had been seen at 2 p. m. committing the murder of Madhandi deceased and a large number of villagers had been told about it soon thereafter, no report about the occurrence could be lodged till the following day. The police station was less than two miles from the village of Valanjiaraju and Kopia and their failure to make a report to the police till the following day would tend to show that none of them had witnessed the occurrence. It seems likely, as has been stated on behalf of the accused, that the villagers came to know of the death of Madhandi deceased on the evening of March 12, 1970. They did not then know about the actual CRA No.768/12 -:20:- assailant of the deceased, and on the following day, their suspicion fell on the accused and accordingly they involved him in this case. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."

(iii) Meharaj Singh v. State of U.P. [1994 SCC (Cri) 1390] Para 12 of the judgment reads as under:-

"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the CRA No.768/12 -:21:- evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate."

(iv) Asokan v. State of Kerala (2017 (2) KHC 669). Paragraphs 22 and 28 read thus:-

"22. In short, in cases like this, the non -

explanation about the injuries on the accused is an important circumstance and the omission of the same assumes importance when the evidence CRA No.768/12 -:22:- consists of interested or inimical witnesses. Failure to explain the injuries sustained by the accused 1 and 2 in the same occurrence would show that the prosecution has not disclosed the full and true facts regarding the occurrence, transpired at the place of occurrence and it create reasonable doubt about the prosecution case. The suppression of the injuries sustained by the accused 1 and 2 shows that the origin and genesis of the occurrence was deliberately suppressed by the prosecution, especially when the accused persons have not totally denied their presence at the place of occurrence. The medical evidence is to the effect that the injuries sustained by the accused could be caused by a sword and hence the absence to recover the same and material contradiction on the deposition of PW1 regarding the presence of a sword mentioned in his FIS, and the discrepancy in his deposition before Court, could only be treated as fatal to the prosecution case. The definite case of the accused in Ext.X1 is that, they sustained injuries from the hands of PW1 with a sword. But that weapon has not been recovered, though in the F.I statement PW1 has a case that the 1st and 2nd accused had used a sword to inflict injuries on the deceased. Such being the case, the omission on the side of the prosecution to explain the injuries on the person of the 1st and 2nd accused, as well as the suppression about registration of Ext.X1 case and the failure on their part to investigate the case and to submit any final report in the case, assumes importance."

CRA No.768/12 -:23:-

"28. PW17, the investigating officer has effected the recovery of MOs.1 to 3 on the basis of the alleged disclosure statement of the 1st and 2nd accused. Ext.P6 is the relevant portion marked on the side of the prosecution. On going through Ext.P6(a) it could be seen that the recovery was effected on the basis of disclosure statement of the 1st accused alone. But, when PW17 was examined he had deviated from the document relied on by him. As mentioned earlier, the failure of the prosecution in not examining all those material objects assume importance to discredit the entire prosecution version and probabilise the case of the defence that the origin and genesis of the occurrence had been deliberately suppressed and the prosecution has not come out with a true version of the occurrence. It is well settled that when suspicion is created about the genesis and origin of the incident laid down by the prosecution, definitely the benefit should be given to the accused."

(v) Ram Kumar Pandey v. State of M.P. [1975 SCC (Cri) 225] Paragraph 9 reads as under:-

"9. No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9-15 p.m. on CRA No.768/12 -:24:- March 23, 1970, were bound to have been communicated. If his daughers had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."

(vi) Marudanal Augusti v. State of Kerala [1980 SCC (Cri) 985]. This judgment was cited to explain the importance of preparing FIR and dispatching it forthwith to the Magistrate, or else the reason for delay has to be properly explained by the prosecution. It was held that the entire fabric of prosecution case would collapse if the FIR is held to be fabricated.

(vii) Ali @ Aali v. State of Kerala [ILR 2015 (4) Kerala 168] Paragraph 57 reads as under:-

" 57. Another vital defect in the prosecution case is that the very foundation of the prosecution case itself has been shaken. The entire prosecution case is built upon the FIR drawn under S.154 of CrPC and the same is expected to contain the earliest version of the incident occurred in that particular case. Thus an FIR in a criminal case is a vital document. It is now well settled that the principal object of the FIS is to make over a complaint to the police to set the criminal law into motion. It is equally an important object to obtain an early CRA No.768/12 -:25:- information of an alleged criminal activity and to record the same without giving a chance for embellishment or manipulation. It is also a settled position that the FIR is not a piece of substantial evidence and its use is against the maker either for the purpose of contradiction or corroboration. Thus while reiterating the object and use of FIR, we cannot ignore the importance of a document which came into existence immediately after the occurrence, since it is on the basis of that document the machinery for investigation being set in motion. It is on the basis of such a foundation, the entire prosecution case is built up.


           If there is any shake with respect to such a

           foundation,     the     whole     structure     will

           collapse.xxxxx"

     22. The law in this regard is well settled. In Ishwar       Singh

(supra) the Apex Court after appreciating the evidence observed that it is not possible to say with any certainty that the accused were the aggressors though undoubtedly the prosecution side got the worse of it after the fight was started. If the accused were not the aggressors, no case under Section 147 or Section 148 of the Penal Code can be maintained against them, and then it is for the prosecution to prove the individual assaults of which there is no evidence. It was also held that there was inordinate and unexplained delay in dispatching the first information report to CRA No.768/12 -:26:- the Magistrate; the difference in the account given by the prosecution witnesses and as appearing from the first information report of the occurrence; the absence of any statement in the first information report as to the injuries received by some of accused, and the non-examination of material witnesses. In such circumstances it was held that the case against the accused has been proved beyond reasonable doubt. In Thulia Kali (supra) the Apex Court held that, the First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial.

The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of CRA No.768/12 -:27:- spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. In Meharaj Singh [supra] also a similar proposition was laid down, by stating that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. In Ram Kumar Pandey [supra] it is held that though an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it, omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In Marudanal Augusti [supra], the Apex Court was explaining the importance of preparing FIR and dispatching it forthwith to the Magistrate. In Ali @ Aali [supra], a Division Bench of this Court held that when the entire prosecution case is built upon the FIR drawn under S.154 of Cr.P.C and the same is expected to contain the earliest version of the incident occurred in that particular case. If there is any shake with CRA No.768/12 -:28:- respect to such a foundation, the whole structure will collapse.

23. But each case has to be decided on its own facts. In a case where an injured is giving a statement in a hospital after encountering a terror situation, it has to be considered whether there was a deliberate attempt to give a different version from what has happened at the relevant time.

24. The fact that PW1, 2, 5 and Kochupennu suffered injuries on the relevant date is proved by the medical evidence adduced in the case. PW6 is the son of PW2. On hearing about the incident, he came running and saw his brothers, father and mother severely injured. That was about 6.45 p.m. He went in search of a vehicle. He could not get a vehicle. Thereafter, a person by name Achankunju and another by name Joy, came and took them to the hospital. PW12 was working as Assistant Surgeon of the Community Health Centre, Chengannur. PW12 has examined PW2 at about 7.45 pm and issued Ext.P6 certificate. The injures noted were fracture (humerus) right. He was referred to Medical College Hospital, Kottayam. Alleged cause was recorded as "at 6.45 p.m. U`G`W 5Oy_ U?_U^Z U:nm fUG_OD_W U:nm". PW12 also examined Prakash (PW5) and issued Ext.P7 certificate. Injuries CRA No.768/12 -:29:- noted were "(1) linear incised wound over left forehead. Skull fractured. Brain matter exposed (2) Left forearm almost cut off in the middle. Cut edge of the muscles and bones exposed." The alleged cause was the same. PW12 had also examined PW1 Pramod and issued Ext.P8 certificate. Following were the injuries noticed:- "(1) Incised injury left forehead. Depressed fracture underlying the wound. (2) Abraded injuries over both wrist." The alleged cause is the same. PW12 deposed that there is possibility of the occurrence taking place at the same time. PW12 had also treated one women Kochupennu along with the three injured. Since the injuries were grave, patient was referred to the Medical College Hospital, Kottayam. PW12 also deposed that the injuries referred to in Exts.P6 to P8 could be caused by MO1. In cross examination PW12 stated that Kochupennu was straight away referred to Medical College Hospital and no certificate was issued.

25. PW13 was the Lecturer in Forensic Medicine, Medical College Hospital Kottayam. PW13 conducted postmortem of Kochupennu. Ext.P9 is the postmortem certificate. Following were noticed as the ante-mortem injuries:-

"1. Surgically modified sutured incised wound 16 cm.long surgically placed on the left side of CRA No.768/12 -:30:- forehead and top of head with its lower end 5 cm to the left of midline and overlying the eyebrow. The scalp tissue around the wound was contused involving the full thickness. The skull bone underneath showed a cut fracture, and the dura matter was seen cut. Brain was seen lacerated correspondingly (10x6x4 cm.). Thick subdural and diffuse subarachanoid bleeding was seen on both sides. The gyri of the brain were flat and sulci narrow.

2. Abrasion 2x1 cm. on the left side of head 0.5 cm.above top of ear.

2. Abrasion 1x0.5 cm. on the front of right knee.

3. Abrasion 2x0.5cm. on the front of (Lt.) leg seen below injury No.3.

4. Abrasion 1x1 cm. on the back of left elbow.

Air passages contained blood stained froth. Lungs were congested and oedematous. Stomach contained 50 ml. of bile stained fluid having no unusual smell. Mucosa normal. Uterus and adenexai were atrophic, uterine cavity empty. All other internal organs were pale. Otherwise normal."

PW13 deposed that the cause of death was due to the injury sustained to her head. He also stated that the said injury can be caused by MO1.

26. PW14 was working as Lecture in Orthopedics, Medical College Hospital Kottayam. He had issued Ext.P10 discharge certificate of PW2. He has also treated PW5 and the discharge CRA No.768/12 -:31:- certificate is Ext.P11. From the evidence of PW6, it is evident that the injured were initially taken to the Community Health Centre, Chengannur. From the evidence of PW12 and Exts.P6 to P8, it is evident that PW1, 2 and 5 had suffered severe injuries. The discharge certificate of PW2 and PW5 are Exts.P10 and P11, which are proved by PW14. Kochupennu also suffered severe injuries. She was also taken to Community Health Centre, Chengannur. As per the evidence of PW12, she was immediately referred to Medical College Hospital, Kottayam. She died while she was at Medical College Hospital and postmortem was conducted by PW13. The cause of death of Kochupennu was the head injury suffered by her. Therefore, the fact that PW1, PW2, PW5 and Kochupennu suffered injuries at or about 6.45 p.m. at their residence cannot be disputed or rather it is proved. Kochupennu succumbed to the injuries while at hospital. When the aforesaid fact is proved by the prosecution, the next question is whether injuries were caused by the accused.

27. Before considering the appellants' arguments, it is better to evaluate the defence evidence as well. DW1 is Dr.Santhosh Kumar. He was summoned to prove Ext.D7. On 4/2/2007 he was CRA No.768/12 -:32:- working as Senior Lecturer in Surgery, Medical College Hospital, Kottayam. A patient by name Suni (A1) aged 25 years was admitted on the said day. He was treated by Dr.John S. Kurian and was discharged on 18/2/2007. He also proved the case sheet relating to IP No. 5540 of Bineesh, aged 30 years. Witness submitted that he had issued the discharge certificate on 14.6.2007. The entry in the case sheet is marked as Ext.D7. Earlier the court observed that since DW1 was not a party to the treatment certificate dated 4/2/2007 issued in the name of Suni, aged 25 years, it was observed that marking of the document was by mistake and it was recalled. He also stated that case sheet is not written in his handwriting and he cannot identify the handwriting of the person who had written it. He further observed as far as Ext.D7 is concerned, he had seen the patient and examined and after that Dr.John S.Kurian had treated the patient. He had written the OP ticket when the patient came for treatment. In cross examination he stated that discharge certificate was issued on 14/6/2007 ass per Ext.A4 entry.

28. DW2 is Dr.John S. Kurian. He deposed that he was working as Associate Professor at Medical College and Chief of S4 CRA No.768/12 -:33:- Unit. He proved the IP file NO.5540 relating to a patient Gireesh (A2) filed in S4 unit. Address given was C/o Sobha, Kuzhippatharayil Pardanad PO., Chengannur. It was marked as Ext.D8. The admission was on 4/2/2007 and discharged on 19/2/2007. The injuries are noted by House Surgeon which differs from what is written by Dr.Santhosh Kumar who is the Duty Medical Officer in the casualty. He deposed that he was not sure whether all the injuries noted are written in Ext.P7(a). He further deposed that in Ext.D8, Dr.Santhosh Kumar has recorded that the patient was referred from CHC, Chengannur. The OP ticket written by Dr.Santosh Kumar was marked as Ext.D8(a) and the referral letter from Chengannur was marked as Ext.D8(b). The entry by the House Surgeon is marked as Ext.D8(c). He also deposed that there is a difference relating to the injury in the OP ticket as well as in the referral letter. Doctor Santhosh Kumar has recorded that it is an incised dried wound whereas the Doctor who wrote the referral letter has stated that it is an incised wound. The House Surgeon of the OPMS Department states that it is a lacerated wound. In the summary sheet, it is written as multiple soft injury, bronchial asthma. He also proved Ext.D9 certified copy CRA No.768/12 -:34:- of case sheet in IP No.005541 of Medical College Hospital, Kottayam. It relates to the treatment given to Suni (A1), aged 25 years and the address shown ins C./o Bhaskaran, Kuzhippatharayil, Pandanad, Chegannur. Date of admission was on 4/2/2007 and discharged on 18/2/2007. In the reference letter from CHC, Chengannur, injuries were recorded as incised wound left shoulder and incise wound left buttock. The entry is marked as Ext.D9(c). Another OP ticket of dental wing by Dental Surgeon is also enclosed in Ext.P9 which is marked as Ext.P9(b). Ext.P9(c) is also marked. Other OP tickets were marked as Exts.P9(e). In cross examination he stated that haemothoraxy is the result of an injury to chest. He has no wound on the chest. When he was asked whether Sunil got admitted in the hospital for defensive purposes at a late stage, his answer was that he can't form an opinion. When he was further asked whether Suni was subjected to chest examination by x-ray, his answer was that his advice and result was not recorded. He further stated that the size of shoulder injury of Sunil is 2x1x1cm size. Gireesh was treated for bronchial asthma also. When he was asked whether the injures to Gireesh were minor, his answer was that he can't say the depth of CRA No.768/12 -:35:- the injury. In further examination by the defence, he stated that haemothoraxy can be caused by a blunt injury in which event there will not be any external injury.

29. Ext. D1 is a contradiction from the 161 statement of PW3. In 161 statement, she had stated that on seeing the incident, husband's brother Prakash came with a sickle and inflicted injuries and cut injuries on the left shoulder and head of Sunil. She denied having given such a statement. In Ext.D2 she has given a statement to the police that Prakash (PW5) had inflicted injury on Sunil with the sickle, which was lying in the house of father and mother and she identified the said sickle. Ext.D3 is the contradiction in the evidence of PW5 with reference to his earlier statement under Section 161. Earlier he had deposed to the police that on seeing the incident, he came from the house with a sickle.

30. D4 was the wound certificate of 1st accused issued by the Medical Officer on 3/2/2007. The date and hour of examination was 7.45 hours and the injury noted was linear incised injury over left shoulder and left buttock.

31. Ext.D5 is a portion in the FIS wherein PW1 had stated CRA No.768/12 -:36:- that mother fell down after the injury near the verandah of the house. Ext.D6 is also a portion of the statement in Ext.P1 FIS wherein he had stated that father ran into the house and Sunil went after him inside the house and inflicted cut injury on the father's hand. Ext.D6(a) is body note, which forms part of the FI statement in Crime No. 60/2007 of Chengannur police station. The information was given by Sunil, the 1st accused. In the body note, it is stated that the first accused had injuries on his left shoulder and left buttock. It was seen that he had bandages on his face and nose. Gireesh (A2) had a bandage on his left eye along the head and left shoulder.

32. Ext.D6(b) is the FIR in the crime, in which the complainant is Sunil, the 1st accused and the name of the accused are Prasad, Prakash, Pramod and Rajan. In the FIR, it is recorded that at 6.45 p.m. on 3/2/2007, there was a quarrel between the accused and the informant. The second accused Prakash (PW5) came with a sickle and inflicted injury on the left shoulder and left buttox. The first accused Prasad hit him with a stone. The complainant's brother Gireesh who had come there also was attacked with the sickle. Gireesh suffered an injury on his left eye CRA No.768/12 -:37:- brow and shoulder. The accused 3 and 4 were also involved in the matter and participated in the crime with a common intention.

33. Ext.D7 is a portion of the case sheet relating to IP No.5540 and the case records in IP 5540 relating to the second accused is marked as Ext.D8 and the OP tickets and other details were marked as Exts.D8(a), (b) (c) and (d). It could be seen that he was brought to the Medical College Hospital at 1.15 am on 4/2/2007 as reference from hospital and the discharge summary would show that he had incised wound over left shoulder extending anterior chest, incised wound left eyebrow, upper eyelid, incised wound, left cheek and upper lip (through and through). Ext.D8(b) would show that he was brought to the Community Health Centre, Chengnanur on 3/2/2007 at 10.45 p.m. with linear incised wound starting from left forehead above left eyebrow extending to lower jaw including left eye cornea, another wound 5x1cm over left shoulder and another small incised wound parallel to the front upper lip. Ext.D9 series are the certified copy of case records in IP No.5541 maintained by the Medical College, Hospital in relation to the 1st accused. Exts.D6(a) to D9(e) and evidence of DW1 had been adduced by the defence to prove that CRA No.768/12 -:38:- the accused had also suffered injuries which aspect had not been clearly stated by the prosecution and there is no explanation for the said injuries. In a case where there was a confrontation between two groups of people and the injury suffered by the accused in a case is not explained, it has to be presumed that the prosecution had not proved their case beyond reasonable doubt.

34. Learned Prosecutor would however argue that the injury suffered by the accused were minor in nature and there was a counter case filed which went into trial. Therefore, when another case was already taken against the assailants as alleged, absence of any mention regarding the injury suffered by the accused in the present case will not affect the prosecution case in any manner.

35. But, we are of the view that it was upon the prosecution to give materials regarding the injury suffered by the accused. They ought to have explained as to how those injuries had been caused. It is relevant to note that even in Ext.P1 statement, there was a confrontation between the 1st accused and PW5. When the handle of the motorbike driven by 1st accused hit PW5's mother, he came with a sickle and brandished it against the first accused while he was in his motor bike. This is evident from Exts.D1, D2 CRA No.768/12 -:39:- and D3. However that incident took place at 6 pm. But the first accused while giving Ext.D6(b) FIR had a case that they were attacked by the witnesses with the sickle at 6.45 pm, on account of which they suffered injury. However, they do not mention anything about the injury they inflicted on the witnesses and Kochupennu at 6.45 p.m.

36. The first question to be considered is the genesis of the occurrence. As already noticed, two incidents had taken place on 3/2/2007. One at 6 pm and the other at 6.45 pm. Two crimes were admittedly registered. That the accused were injured was mentioned in the body note Ext.D6(a) forming part of crime No.60/2007 of Chengannur Police Station, in which the 1st accused was the informant. That the accused were the assailants is evident from the fact that the incident occurred in the courtyard and in the house of PW2 where his family were residing. PW1, PW2, PW3 and PW5 were unanimous by stating that the 1st accused was having a weapon with him which is marked as MO1. The sequence of him inflicting injuries on each and every one of the witnesses and Kochupennu slightly differs. But the fact remains that Kochupennu died on account of the said injuries. CRA No.768/12 -:40:- Evidence before Court clearly proves that MO1 sword was being wielded by the first accused and he had inflicted injuries on all the male members of the family and also Kochupennu.

37. Of course, there is discrepancy in the evidence read with Ext.P1, FI statement regarding the sequence of injuries caused to each and every individual. But the fact remains that Kochupennu died in the incident on account of the injury inflicted by the first accused on her.

38. Learned counsel for appellant also submitted that the exact place where Kochupennu was attacked cannot be proved beyond reasonable doubt. In the FI statement, PW1 has stated that she was attacked in front of her house near the veranda and she fell down, whereas in the evidence, it is seen from the site plan that she was attacked near the pathway and she fell near the well. In Ext.P2 scene plan, the scene of occurrence is near the pathway. But one relevant fact to be taken note of is that the total extent of property belonging to the injured witnesses was only 4 cents and the entire incident happened within the said compound and the nearby pathway. The distance between the well and the pathway where Kochupennu was attacked was only 1.75 metres. CRA No.768/12 -:41:- According to the prosecution and the witnesses, she fell near the pathway. The distance between the veranda of the building and the place where Kochupennu was attacked is only 11.2 metres. Therefore, it could be seen that the entire incident happened in a small area coming within 4 cents of land. It might be possible that there is a slight change in the sequence of events and also the place where each and every person suffered their injuries. The question is whether the prosecution case has to be completely thrown out on account of such discrepancies.

39. Certain facts in the judgments relied upon by the learned counsel for the appellant needs to be analysed before arriving at a final conclusion. In Seriyal Udayar v. State of Tamil Nadu (AIR 1987 SC 1289), it was observed that an attempt was made by PW1 to suppress the fact of injury to the accused-appellant. The other witnesses have also chosen not to speak about the injury to the accused-appellant. It was further found from the evidence of PWs 3 and 4 that they did not see the incident and also as to how it happened. Both of them came to the scene after the trouble had started and the blade of spade had fallen down. PW3 was a relation of PW1. Both of them do not CRA No.768/12 -:42:- say anything about anything of the injury on the accused. The trial court acquitted the accused. The High Court on appeal having set aside the conclusions arrived at by the learned Sessions Judge convicted the accused. The Apex Court observed that the conclusion of the learned Session's Judge before whom the evidence was recorded deserves due weight. Further, it was found that even if on the basis of material as it stands, the right of private defence of the accused-appellant is not established, still the material produced in cross examination and circumstances discussed in the case would indicate that the incident might have happened in a manner in which it was suggested by the accused appellant. The Apex Court therefore set aside the conviction and sentence recorded by the High Court. In Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263), the Apex Court observed that no independent witness had been examined by the prosecution to support the assault. It has been proved that there had been litigation between PWs 1 to 4 on the one hand and the accused on the other hand. It was observed that the Doctor who conducted post mortem has also examined the accused and found certain injuries on him. The Apex Court proceeded on the CRA No.768/12 -:43:- basis that having regard to the circumstance of the case, there can be no doubt that the accused must have received those injuries in the cause of assault, since it has not been suggested or contended that injuries could be self inflicted nor is it believable. Hence, it was found that it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused in the course of occurrence. Despite the fact that the prosecution has not given any explanation, the witnesses have made a clear statement that they did not see any injuries on the person of the accused. It is stated that if the eyewitnesses could have given evidence regarding the assault on the two deceased, and another person and if they deliberately suppressed the injuries on the person of the accused, which according to the Apex Court is a most important circumstance to discredit the entire prosecution case. It was therefore held that "it is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non- explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and CRA No.768/12 -:44:- genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence." It was finally held that in a murder case, the non explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can infer that (1) the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version. (2) the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefor their evidence is unreliable and that in a case there is a defence version which explains the injuries on the person on the accused, it is rendered probable so as to throw doubt on the prosecution case. It is further held that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of the interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution case. After referring to the judgment in State of Gujarat v. Bai Fatima (AIR 1975 SC 1478), the Apex CRA No.768/12 -:45:- Court held that there may be cases where the non explanation of injuries by the prosecution may not affect the prosecution case. The said principle apply to cases where the injury sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. A Division Bench of this Court in Asokan (supra) had also while evaluating the evidence held that non explanation on the injuries on the accused is an important circumstance and the omission to explain the same assumes importance when the evidence consists of interested or inimical witnesses

40. The Public Prosecutor placed reliance upon a recent judgment of the Apex Court in Baleshwar Mahto and another v. State of Bihar [(2017) 3 SCC 152]. This was a case in which the accused was found guilty u/s 307 IPC and also S.27 of the Arms Act. The Apex Court held that when the eyewitness is also an injured person, due credence needs to be accorded to his version. The Apex Court referred to the judgment in Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259] and CRA No.768/12 -:46:- various other judgments on the point. Paragraph 12 is relevant, which reads as under:-

"12. Here, PW 7 is also an injured witness. When the eyewitness is also an injured person, due credence to his version needs to be accorded. On this aspect, we may refer to the following observations in Abdul Sayeed v. State of M.P: (SCC pp. 271-72, paras 28-30) "28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab19, where CRA No.768/12 -:47:- this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:

(SCC pp. 726-27, paras 28-29) `28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'

30. The law on the point can be summarised to the CRA No.768/12 -:48:- effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

A similar view had been taken by the Apex Court in Chandrasekar and another v. State (AIR 2017 SC 2600). wherein relying upon Brahm Swaroop v. State of UP (2010 KHC 4818) it was held that criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. It was also held that the fact that the witness may be related to the deceased by marriage cannot be sufficient reason to classify him as a relative and interested witness to reject his testimony. It may only call for greater scrutiny and caution in consideration of the same. In that case it was held that the appellant came together armed with a hammer, sickle and CRA No.768/12 -:49:- iron rod. They assaulted the deceased indiscriminately on the head repeatedly, a very sensitive part of the human body reflecting the individual intention of each one of them to ensure the death of the deceased. The number of injuries caused on the head speaks for itself regarding the intention of the appellants. There is no need to consider and examine the issues of common intention in the facts of the case. It was also held that in view of the clear ocular evidence available, issues with regard to confession statement and recovery of weapons of assault need not be considered for corroboration. In Sikander Singh and others v. State of Bihar (2010) 7 SCC 477] the Apex Court while considering a defence relating to the exercise of private defence, held that the burden of establishing the plea of self defence is on the accused but it is not as onerous as the one that lies on the prosecution. In that case, one of the contentions urged was that non explanation of injuries on the accused is fatal to the prosecution case. It was held that it cannot be held as an unqualifed proposition of law that whenever the accused sustains an injury in the same offence, the prosecution is obliged to explain the injury and on failure of the prosecution to do so, the CRA No.768/12 -:50:- prosecution has to be disbelieved. Reference is made to the three Judge Bench judgment in Takhaji Hiraji v. Thakore Kubersing Chamansing and others [(2001) 6 SCC 145], wherein it was held that before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect prosecution case, the Court has to be satisfied of the existence of two conditions viz., that the injury on the person of the accused was of a serous nature and that such injuries must have been caused at the time of occurrence in question. In an earlier judgment viz. Shajahan v. State of Kerala [(2007) 12 SCC 96] also, the Apex Court placing reliance on Ramlagan Singh v. State of Bihar (AIR 1972 SC 2593) and Hare Krishna Singh and others v. State of Bihar [(1988) 2 SCC 95) held at paragraphs 10 and 11 as under:-

"10. In Mohar Rai case the first appellant Mohar Rai was convicted under Section 324 IPC for shooting and injuring PW 1 at the instigation of the second appellant Bharat Rai, who was himself convicted of an offence under Section 324 read with Section 109 IPC. The prosecution proceeded on the basis that the revolver (Ex. III), which was recovered from Mohar Rai, was the weapon that was used by him in the commission of the offence. CRA No.768/12 -:51:- The ballistic expert, who was examined as DW 1, was positive that the seized empties as well as the misfired cartridge could not have been fired from Exhibit III. The evidence of DW 1 was accepted both by the trial court as well as by the High Court. This Court rejected the prosecution case that Mohar Rai had fired three shots from Ex. III. This Court held that once it was proved that the empties recovered from the scene could not have been fired from Ex. III, the prosecution case that those empties were fired from Ex. III by Mohar Rai stood falsified. Thereafter, the injuries sustained by the two appellants, Mohar Rai and Bharath Rai, were considered by the court and it held that the prosecution had failed to explain the injuries sustained by the appellants and observed that the failure of the prosecution to offer any explanation in that regard showed that the evidence of prosecution witnesses relating to the incident was not true or, at any rate, not wholly true. Thus, in this case also the question of non-explanation of the injuries on the accused was considered by the court after it had rejected, on a consideration of evidence, the prosecution case that Mohar Rai had fired from the revolver (Ex. III). In other words, if the prosecution case had been believed that the appellant Mohar Rai had fired from Ex. III injuring PW 1, the non-explanation of the injuries sustained by the accused would not have affected the prosecution case.

CRA No.768/12 -:52:-

11. On the other hand, in Bhaba Nanda Sharma v. State of Assam it has been categorically laid down by this Court that the prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances. It depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused. In Ramlagan Singh v. State of Bihar this Court again examined the question and it has been laid down that the prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain the injuries on the person of the accused. In the instant case also, the injury sustained by the appellant Hare Krishna Singh, has not been put to the prosecution witnesses and so they had no occasion to explain the same. In such circumstances, as laid down in Ramlagan Singh case the non-mention of the injuries on the person of the appellant in the prosecution evidence would not affect the prosecution case, which has been accepted by the courts below."

41. Coming to the facts of the case and after evaluating the evidence adduced, the following factors are clear (1) that the CRA No.768/12 -:53:- first accused came in a motor bike at about 6 pm on 3/2/2007 and its handle had hit on Kochupennu. She started crying. PW5 on seeing the incident came with a sickle and brandished it while the first accused was proceeding in his motorbike. Though none of the witnesses when examined before Court states about the injury on the first accused, it is clear from Exts.D1 and D2 contradictions and Ext.D9 medical record proved before Court. (2) That the 2nd accused suffered injuries at a time when first accused attacked Kochupennu is spoken to by PW's 1, 2 and 3. According to the witnesses, 2nd accused suffered injury at the time when Kochupennu was attacked by 1st accused, while 2nd accused was holding her hands.

42. Learned Public Prosecutor argues that the injuries were minor in nature and therefore further explanation was not required. The medical evidence adduced by the defence proves that accused 1 and 2 also suffered injuries. But they were not fatal injuries. It is possible that the injury on the first accused was caused when PW5 brandished him with a sickle which was at about 6.00 p.m. Evidence discloses that he threatened PW5 and thereafter he came back along with A2 and A3 and started CRA No.768/12 -:54:- attacking them. In such circumstances, we are of the view that non explanation of the injuries on the accused by itself is not fatal to the prosecution case. Defence evidence also discloses that another crime had been registered by the police on the basis of statement given by first accused on the allegation that the witnesses were the assailants. In the statement given u/s 313, 1st accused stated that he was coming after work. Prasad, Pramod, Rajappan and Prakash together told him that A1 was having an affair with Prasad's wife and then they have inflicted a cut injury on the left shoulder and with a stone on his nose. He became unconscious and he was taken to the Medical College hospital. 2nd accused in his 313 statement has stated that he came back at 7.30 p.m. after work. Prakash had inflicted an injury on his left eyebrow and left side of his mouth with a sickle. He ran to his house. He called for an auto and went to the District Hospital. Both of them did not mention anything about any injury being inflicted on Pws1, 2, 5 and Kochupennu. Therefore, it is rather clear that they have not stated the true and correct facts. In the FI statement given by 1st accused, in the crime against the witnesses, he stated that the incident occurred at 6.45 p.m. and CRA No.768/12 -:55:- his brother, 2nd accused got injured when he tried to defend him. 2nd accused has given a totally different version in 313 statement. He does not refer to the presence of 1st accused at all. Therefore, it is clear that the defence version of the sequence of attack cannot be believed.

43. Such being the facts, absence of explanation of the injuries on the accused is not fatal to the prosecution case nor can it be stated to be a circumstance to disbelieve the witnesses who were injured in the incident.

44. The learned counsel for the appellant submits that the versions of these eye witnesses are not believable for two reasons. One is that they are inimical towards the accused and secondly, they are all relatives and interested witnesses.

45. The incident occurred at 6.45 p.m. and the First Information Statement was given by PW1 at 2.00 a.m on 4/2/2007 at the Medical College Hospital. The statement Ext.P1 of course differs from the evidence given by the eye witnesses in the chronology of events. The First Information Report was registered at 6 hours on 4/2/2007 and it reached the Magistrate on 4/2/2007 at 1.15 p.m. Therefore, there is no delay on the part of the Station CRA No.768/12 -:56:- House Officer in sending the FIR to the Magistrate. The importance of FIR has been considered by the Apex Court in various decisions. In Thulia Kali (supra), the Apex Court was considering the importance of the FIS. It was held that the object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the FIR quite often results in embellishment and may be an afterthought. In this case, we do not think that there is any delay on the part of the police in registering the FIR. The injured were taken to the hospital and they were all badly injured. Injury on Kochupennu was fatal. They were all taken to the Medical College hospital and the FIS was given at 2.30 a.m. when the incident occurred at 6.45 p.m on the previous day. After recording First Information Report, the same was sent to the Magistrate immediately thereafter. Therefore, the contention that there would have been an attempt to embellish the FIS cannot be accepted.

CRA No.768/12 -:57:-

46. But it is true that there is difference in the sequence of events spoken to by the witnesses and the statement PW1 had given in Ext.P1. The differences are the following:

(a) In Ext.P1 - A1 inflicted an injury with the sword on Kochupennu's head. She fell down in the courtyard. A2 inflicted a blow on the right hand of his father. A2 also inflicted a blow with the sword on PW5's head. He suffered injury on his head and hand. A1 hit PW1 with the sword on his left hand. PW2 ran into the house. A1 chased PW2 and inflicted an injury on his hand.

(b) PW1's deposition - A1 inflicted a blow on PW2 who was standing on the southern side of the house. A1, then inflicted a blow on PW5, who suffered head injury. PW1 got frightened and went inside the room. A1 followed him inside the room and he was hit thrice with the sword. Kochupennu ran to the road. A2 caught hold of mother's hand. A3, caught hold of her hair. A1 inflicted a cut injury on her head and body three four times.

(c) PW2's deposition - A1 came running and inflicted an injury on his right hand. He fell down. A1 inflicted a blow on Prakash (PW5). He was attacked two three times and he fell down.

Pramod (PW1) went inside the house. He was attacked inside the CRA No.768/12 -:58:- house. Kochupennu started crying and ran towards the road on the northern side, A2 went and caught hold of her hands, A3 caught hold of her hair. A3 asked A1 to kill the lady. A1 ran towards Kochupennu and inflicted cut injuries on her with the sword two three times.

(d) PW3's deposition- A1 came with a sword and inflicted injury on PW5. He suffered injury on his hand and head. PW1 was attacked inside the house. PW5 and PW2 were attacked in the courtyard of the house. On seeing this, Kochupennu ran towards the pathway. A2 caught hold of Kochupennu's hand and A3 on her hair. On the direction of A3, A1 inflicted injury on mother's head.

(e) PW5's deposition - A1 came with a sword and inflicted blows on him and PW2 several times. PW1 was inside the house. PW2 and PW5 fell down. A1 went inside the house and attacked PW1. Mother ran out and reached the pathway. A2 and A3 caught hold of her and A3 asked first accused to kill her. A1 axed her with the sword and mother fell down.

47. But all of them were unanimous with reference to the injury caused to them. The only difference was in the sequence as stated in Ext.P1.

CRA No.768/12 -:59:-

48. But, it could be seen that the witnesses were clear on the fact that A1 had caused all the injuries. His involvement in the crime is proved by the evidence of the aforesaid witnesses. All the injured had given evidence stating that A1 has inflicted the injury. The said ocular evidence itself is enough to prove the case against the first accused. All of them had clearly stated that A1 had inflicted injury on Kochupennu as well. Though the defence had a version that father and sons had attacked him, it is not believable. When he was holding a sword and Kochupennu is badly injured, evidence only points out to his complicity in the crime. The argument that there is no motive for the crime cannot be accepted. It is clear from the evidence that the root cause was an allegation that 1st accused had some association with PW6's wife. This triggered an incident at 6 p.m. on the same day. Thereafter, at 6.45, on account of such an enmity, the 1st accused had committed the crime.

49. But as far as the second accused is concerned, we are of the view that he is entitled to be given the benefit of doubt. In the FI statement, PW1 stated that he was also having a weapon with him and he was also involved in inflicting injuries. But, in CRA No.768/12 -:60:- evidence his involvement with a weapon has been given a go by. According to the witnesses, only 1st accused had inflicted injuries on them and Kochupennu. The over act of 2nd accused is that he was holding the hands of Kochupennu, preventing her from running away and first accused inflicted injury on her head. That the 2nd accused was holding her hand was not mentioned in Ext.P1, FI statement. In the FI statement, the first incident was the first accused inflicting a blow with a sword on the head of Kochupennu and when they came running, 2nd accused had inflicted a blow with the sword on his father. This version has considerably changed when he was examined as PW1 and he deposed that involvement of the 2nd accused was only holding the hand of their mother to enable first accused to attack her with the sword. Other than holding the mother by the 2nd accused, none of the witnesses had spoken about any other over act. According to them, A2 had suffered injury at the time when Kochupennu was attacked by A1. In order to bring a case u/s 34, as held in Ibrahimkutty v. State of Kerala (1983 KHC 298), essence of Section 34 IPC is simultaneous consensus of mind of persons participating in the criminal action to bring about a particular CRA No.768/12 -:61:- result. Before a man can be vicariously made responsible for the criminal act of another, the act must have been done in furtherance of the common intention of both. It is not enough to have the same independently of each other. The common intention of course may develop in the course of commission of offence, but it must receive the act of constituting the offence. In the present case, it has to be considered whether there is any material to infer that there had been a sharing of the intention to commit murder by accused 1 and 2. One factor which requires to be considered is whether 2nd accused entertained the intention to commit murder. There is no evidence to indicate any enmity 2nd accused, had with any of the injured or Kochupennu. He had come along with A1, who inflicted various injuries on the injured and Kochupennu. Every other person fell down and the final blow was on Kochupennu. It could therefore be seen that A2 may not have the intention to commit murder of Kochupennu. Probably he was only trying to prevent Kochupennu from running away. It was the first accused who committed the fatal injury which has caused her death. Taking into consideration the over all factual circumstances, the evidence discloses that the 1st accused had CRA No.768/12 -:62:- inflicted the blows on witnesses and Kochupennu with a deadly weapon which is enough in the normal course to cause death or knowing fully well that the said injuries may cause death. The finding of guilt against the 1st accused is justified. Hence, the 2nd accused should be given the benefit of doubt.

In the result, the appeal is partly allowed. We set aside the conviction and sentence of the 2nd accused and the conviction and sentence of the 1st accused is sustained. The 2nd accused shall be released immediately, if his presence is not required in any other case.

Sd/-

A.M. SHAFFIQUE, JUDGE Sd/-

P.SOMARAJAN, JUDGE Rp //True Copy// PS to Judge

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