Nagaratnam vs State Of Kerala on 30 August, 2024

[Cites 25, Cited by 0]

Kerala High Court

Nagaratnam vs State Of Kerala on 30 August, 2024

Down the serene valleys of the Wayanad Hills, as they existed at that time, on Arnamala Estate Road, lay 24-year-old Ratheesh Kumar in a pool of blood, spilled from 43 incised wounds on his body, from thighs to head, on the night of 29.05.2010. His fervent cries caught the attention of two persons by name Pandian (PW3) and Velayudhan @ Sivanandan @ Swami (PW4) residing in that locality, who rushed to that place. Pandian, on the way to the above place, is said to have seen Nagaratnam, the alleged assailant, fleeing through Arnamala Estate road in his opposite direction with a knife in his hand and a bag around his shoulder. The accused is said to have not responded to Pandian though Pandian called him by his name. The injured, it is said, exhorted Pandian to save him. Within a short time, as informed by Swami, Mohanan (PW5) also reached the spot. Ratheesh Kumar, who was writhing in pain, is said to have told the above persons that Nagaratnam, the accused herein had hacked him with a knife. Mohanan immediately called the parents of Ratheesh Kumar and also one Sankaran Kutty (PW9) residing in that locality who was owning a jeep, to come with his jeep for the hospitalisation of Ratheesh Kumar. They came to the spot within a short while. The witnesses 2024:KER:65526 3 Crl.A.No.599/2017 claim to have seen the victim in moon-light, torch-light and lights from lamps of a nearby temple and bungalow. Ratheesh Kumar is said to have told Balasubramanian (PW1), his father, and also his mother, that Nagaratnam had hacked him with a knife. Ratheesh Kumar was immediately taken in the jeep driven by Shiju (PW10) to Leo Hospital, Kalpetta where the Doctor (PW20), who was present there, applied first aid and referred him to Medical College Hospital, Kozhikode. Though Ratheesh Kumar was taken in an ambulance from the said private hospital to Kozhikode Medical College Hospital, the Doctor who attended him at Medical College Hospital, Kozhikode at about 12:30 midnight declared him as brought dead.

2. On the basis of the first information statement (Ext.P1) given by Balasubramaniyan, the Meppadi Police registered F.I.R Ext.P1(a) at 09:30 a.m on 30.05.2010 in respect of the offence under Section 302 IPC against the accused. PW25, the C.I of Police, Kalpetta took over the investigation and initiated the required procedures of inquest, preparation of mahazars etc. The body of the deceased was subjected to autopsy by the Deputy Police Surgeon (PW23) at Medical College Hospital, Kozhikode. The accused was put under surveillance from the night of 30.05.2010 and he was arrested on the next day. On the basis of the alleged confession made by the accused, PW25 is said to have recovered the chopper (MO6) used for the commission of the 2024:KER:65526 4 Crl.A.No.599/2017 offence from a drainage ditch covered by ginger-harvest litter by the side of the above said Estate road at a distance of about 60 to 70 meters from the place of occurrence. The Investigating Officer also took into custody the lungi (MO4) and shirt (MO5) worn by the accused at the time of his arrest, since they were said to be the very same dress which he wore at the time of commission of crime. The above items as well as the items recovered from the scene of crime, and from the body of the deceased, and the weapon of offence, were sent for forensic analysis. After the completion of the investigation, the C.I of Police, Kalpetta filed the final report before the Magistrate concerned.

3. The learned Additional Sessions Judge-II, Kalpetta, to whom the case was made over after committal, heard the prosecution as well as the accused, and framed charge under Section 302 IPC against the accused. The charge was read over and explained to the accused, to which he pleaded not guilty. In the trial that ensued, 26 witnesses were examined from the part of the prosecution as PW1 to PW26 and 28 documents were marked as Exts.P1 to P28. Eight material objects were identified as MO1 to MO8. After the close of prosecution evidence, the accused was questioned under Section 313(1)(b) of the Code of Criminal Procedure. He took up a plea of total denial against the incriminating circumstances brought out in evidence. Finding that there is 2024:KER:65526 5 Crl.A.No.599/2017 no scope for an acquittal under Section 232 Cr.P.C, the learned Additional Sessions Judge gave opportunity to the accused to adduce evidence. One defence witness was examined as DW1 from the part of the accused.

4. After an evaluation of the aforesaid evidence, and hearing both sides, the learned Additional Sessions Judge found the accused guilty of offence punishable under Section 302 IPC, and convicted him thereunder. The accused was sentenced to undergo life imprisonment and to pay a fine of Rs.1,00,000/- with a default clause of rigorous imprisonment for one year. It was further directed that, if the entire fine amount is realised, it shall be given equally to the father and mother of the victim.

5. Aggrieved by the aforesaid conviction and sentence, the accused has preferred this appeal contending inter alia that the court below went wrong in relying on the evidence of PW1, PW3, PW5, PW9, PW10 and PW14, that the court below ignored the opinion of DW1 that the injuries found on the body of the deceased could have been caused by a chopper and a knife by more than one person, that the court below ought to have discarded the evidence relating to recovery of MO6 chopper as inadmissible, that the court below ought to have rejected the evidence relating to dying declaration of the victim and that the court below ought to have found that the prosecution failed to establish the chain of circumstances pointing to the guilt of the 2024:KER:65526 6 Crl.A.No.599/2017 accused.

6. Heard the learned Senior Counsel Adv.Mr.P.Vijayabhanu, who appeared for the appellant under instructions from Adv.Sruthi Bhatt, and the learned Senior Public Prosecutor Adv.Mr.Alex M.Thombra, who appeared for the State of Kerala.

7. This is a case where there is no eye witness to the incident involved. Before the trial court, the prosecution built up the case mainly by relying on the dying declaration of the deceased to PW1, PW3 and wife of PW3, which was also said to have been heard by PW5 and PW9. The recovery of the weapon of offence (MO6), on the basis of the information said to have been received from the accused during custodial interrogation, is the other circumstance relied on by the prosecution to establish the guilt of the accused. Furthermore, the prosecution also reposed much reliance upon the evidence of PW3 who is said to have seen the accused running away with the weapon of offence immediately after the commission of the crime, as a circumstance pointing to the involvement of the accused in the commission of the crime. Coupled with the above aspects, the forensic evidence adduced through Ext.P28 FSL report, pointing to the presence of blood of the same group as that of the deceased, in MO4 lungi and MO5 shirt worn by the accused at the time of commission of the crime, is pointed out as a clinching circumstance 2024:KER:65526 7 Crl.A.No.599/2017 establishing the commission of the crime by the accused.

8. Adverting to the above four aspects, the learned Senior Public Prosecutor would argue that the chain of circumstances to connect the accused with the crime has been established to the hilt by the prosecution, and that there arise absolutely no doubt about the commission of the crime by any other person in any other manner, other than the case set forth by the prosecution. The learned Senior Counsel for the appellant, on the other hand, strongly disputed the veracity of the evidence adduced by the prosecution on all the above four counts, and submitted that the prosecution evidence is riddled with inconsistencies and other vitiating aspects which would render it totally unacceptable.

9. As regards the dying declaration of the deceased, the learned Senior Counsel for the appellant would contend that it is totally unreliable due to multiple reasons. Firstly, it is stated that the evidence adduced by PW1, PW3, PW5 and PW9 with regard to the dying declaration said to have been made by the deceased, does not disclose the exact words said to have been uttered by the deceased. To substantiate the above point, the learned Senior Counsel would point out that PW5 and PW9 have stated about the utterance of words by the deceased in Tamil, whereas the evidence of PW1 and PW3 is to the effect that the deceased communicated in Malayalam to them about the 2024:KER:65526 8 Crl.A.No.599/2017 alleged act of the accused hacking with a knife. Thus, according to the learned Senior Counsel, no credence could be attributed to the evidence canvassed on the basis of dying declaration since the exact words said to have been spoken by the deceased, are not brought on record.

10. Secondly, it is stated that the evidence adduced by PW20, the Doctor who attended the deceased at Leo Hospital, Kalpetta, when taken along with Ext.P11 wound certificate, would disclose that the deceased was not in a position to speak as a result of the gravity of the injuries suffered by him. Thus, it is stated that the evidence of PW1, PW3, PW5 and PW9 about the statements said to have been made by the deceased about the alleged act of the accused hacking him, is liable to be eschewed as an impossible thing, in view of the medical evidence tendered by PW20 on the basis of Ext.P11 wound certificate.

11. The learned Senior Counsel for the appellant invited our attention to Ext.P11 injury certificate wherein column No.9 about the history and alleged cause of injury is stated as 'assault by unknown person'. Highlighting the above indication in Ext.P11, in the context of the evidence tendered by PW1 and PW3 that they stated to PW20, the Doctor who first attended the deceased, about what had happened to him; and also the evidence of PW20 about the cause of injury as 'alleged assault by unknown person', it is argued 2024:KER:65526 9 Crl.A.No.599/2017 by the learned Senior Counsel that the case set forth by the prosecution about the dying declaration said to have been made by the deceased would fall to the ground due to the non-mentioning of the name of the accused by PW1 and PW3, to PW20 while revealing the history and cause of injury. It is argued that, if the deceased had revealed in his dying declaration, as contended by the prosecution, that the accused had hacked him with knife, then PW1 and PW3 would have definitely conveyed the above information to PW20, the Doctor who first attended the deceased at Leo Hospital, Kalpetta after one hour from the time of the incident.

12. Another reason pointed out by the learned Senior Counsel to assail the credibility of the dying declaration said to have been made by the deceased, is that the evidence tendered by DW1, a retired Principal of Thrissur Medical College who has been working as Professor of Forensic Department at KMCT Medical College Hospital, Kozhikode, would reveal that the nature of the injuries suffered by the deceased would indicate that he had been attacked by more than one person from the front as well as from behind, that too, with one more weapon like knife with pointed blade. Thus, it is stated that the mode of attack as canvassed on the basis of the dying declaration totally differ from the mode of attack which DW1 has deciphered on the basis of the injuries noted in Ext.P13 postmortem report.

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13. The case advanced by the prosecution about PW3 seeing the assailant fleeing with a knife immediately after the incident, has been strongly challenged by the learned defence counsel by relying on the evidence adduced by another witness as PW9 who deposed during cross-examination that when he asked PW3 about the incident, instead of revealing the name of the assailant, PW3 is said to have mentioned that 'one person had gone that way after hacking'. According to the learned Senior Counsel appearing for the appellant, if PW3, who was very much familiar with the appellant, had the occasion to see him running away with the weapon of offence immediately after the incident, he would have definitely stated to PW9 that Nagaratnam was found fleeing with the knife shortly after the incident, instead of referring the appellant as 'one person'.

14. As regards the forensic evidence pertaining to the presence of blood of the same group of the deceased in MO4 and MO5 lungi and shirt of the appellant, the learned Senior Counsel would contend that the evidence in the above regard is shrouded by mysterious circumstances due to the delayed analysis of the blood sample of the deceased which was found to be kept at the chemical analysis laboratory for a period of more than three years without any action, and the subsequent despatch of the above sample to the Forensic Science Laboratory on the basis of a belated application filed by the 2024:KER:65526 11 Crl.A.No.599/2017 investigating officer before the Chief Judicial Magistrate concerned and getting an order for the transfer of the said sample from the Chemical Analysis Laboratory to the Forensic Science Laboratory. It is thus contended that the sanctity of the scientific evidence pertaining to the nature of the blood stains said to have been seen in the cloths of the appellant, got eroded due to the inordinate delay in the blood analysis done at Forensic Science Laboratory, that too, on the basis of the application of investigating agency long after the filing of the final report.

15. As regards the evidence pertaining to the recovery of the weapon of offence on the basis of the information received during the custodial interrogation of the appellant, the learned Senior Counsel, by relying on the law laid down by the Apex Court in Subramanya v. State of Karnataka [AIR 2022 SC 5110] and Ramanand @ Nandlal Bharti v. State of Uttar Pradesh [AIR 2022 SC 5273], would argue that it is not possible to place any reliance upon the said evidence since the modalities and procedural requirements prescribed by the Apex Court in the aforesaid decisions are not followed in the instant case. According to the learned counsel for the appellant, the investigating officer ought to have secured the presence of two independent witnesses to the police station and that the disclosure made by the accused with regard to the concealment of weapon, ought to have been 2024:KER:65526 12 Crl.A.No.599/2017 recorded in the presence of those witnesses. It is further pointed out by relying on the aforesaid decisions of the Apex Court that, throughout the whole process from the recording of the confession to the recovery of the weapon and preparation of mahazer in that regard, the presence of the independent witnesses ought to have been ensured. Thus, it is stated that the evidence adduced by the prosecution regarding the recovery of MO6 on the basis of Ext.P16 confession statement can only be eschewed.

16. Regarding the evidence adduced by the prosecution pertaining to recovery of MO6 chopper on the basis of the confession said to have been made by the appellant in police custody, we subscribe to the argument advanced by the learned Senior Counsel representing the appellant that no credence could be attributed to it since the mandatory procedural formalities laid down by the Apex Court in Subramanya and Ramanand (supra) have not been followed in the present case. But, still, it has to be looked into whether the prosecution was able to establish the charge levelled against the appellant on the basis of the remaining evidence, since it is well established that even in a case where the prosecution was not able to establish the recovery of the weapon of offence, a conviction is possible, if the other evidence adduced in the case make out the commission of crime by the accused.

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17. In Birendra Rai and Others v. State of Bihar [(2005) 9 SCC 719] the Apex Court has held that even in cases where the seizures have not been proved, it could be ignored and the conviction can be based on the other evidence, and evidence of eye witnesses, if found truthful. In Dilip Mallick v. State of West Bengal [(2017) 12 SCC 727] the Hon'ble Supreme Court observed that if the other circumstantial evidence is sufficient to prove the guilt of the accused, conviction could be made notwithstanding the failure of the prosecution to prove recovery.

18. As already stated above, the evidence pertaining to the dying declaration of the deceased has been assailed by the learned Senior Counsel representing the appellant on four counts. Firstly, it is asserted that the testimonies of PW5 and PW9, who claimed that the deceased uttered his last words in Tamil, contradict the evidence of PW1 and PW3. According to PW1 and PW3, the deceased stated, "നാഗരത്നം എന്നെ കത്തി കൊണ്ട് വെട്ടി," which translates to "Nagaratnam hacked me with a knife." According to the learned Senior Counsel, the above last words alleged to have been spoken by the deceased to PW1 and PW3 cannot be termed as the dying declaration of the deceased since those words are not made in Tamil as stated by PW5 and PW9.

19. It is pertinent to note that the dying declaration said to have been made by the deceased is limited to three or four words, and not a detailed 2024:KER:65526 14 Crl.A.No.599/2017 narration of the incident that happened. Taking into account of the linguistic similarity between Malayalam and Tamil languages, it is not possible to say that the words of the deceased that he had been hacked with a knife by Nagaratnam, would have drastic differences when conveyed in Malayalam and Tamil. It is pertinent to note that the evidence tendered by PW1 during chief examination would reveal that they were actually the natives of Madurai district in Tamil Nadu, who came here 39 years ago. Thus, it is not possible to say that the utterance of last words of the deceased, even if it is in Tamil language, was a thing which would have never happened. So also, it is to be noted that there are no irreconcilable variations while the aforesaid words are conveyed in Malayalam and Tamil, in view of the brevity of the statement made.

20. In Surajdeo Oza v. State of Bihar [1980 Supp SCC 769] the Apex Court held that brevity of dying declarations support the truth of the dying declaration having been made. So also, in Uttam v. State of Maharashtra [(2022) 8 SCC 576] the Apex Court held that merely because a dying declaration does not contain the details as to occurrence, it is not to be rejected and that the shortness of the statement itself guarantees truth.

21. It is true that while appreciating the evidence related to dying declaration, the courts are expected to ascertain what exactly were the words 2024:KER:65526 15 Crl.A.No.599/2017 spoken out by the deceased. But that does not mean that minute intricacies pertaining to the language used by the deceased in conveying the particulars relating to the cause of his death, have to be given over-emphasis. All that is required to be scrutinized is whether there is any drastic difference in the evidence adduced by different witnesses regarding the matter conveyed by the words used by the deceased. In other words, the sanctity of the evidence pertaining to dying declaration cannot be said to have been lost for the sole reason that there were subtle difference in the evidence adduced by the witnesses with regard to the language in which the last words were spoken by the deceased, if the meaning conveyed by those words is one and the same. The learned Senior Counsel representing the appellant relied on the decision of the Apex Court in Darshana Devi v. State of Punjab [1996 SCC (Cri) 38] and argued that the reproduction of the exact words of the oral declaration made by the deceased is very important in cases where oral dying declaration forms the basis of conviction. It is pertinent to note that the facts and circumstances of the aforesaid case, insofar as it relates to the dying declaration made by the deceased, are totally different from the present case. It was a case where the deceased was said to have stated to one witness that the assailant sprinkled kerosene on him when he was lying asleep and burnt him, which were different from the last words which the deceased was said to 2024:KER:65526 16 Crl.A.No.599/2017 have spoken to another witness that he had been burnt by the appellant by sprinkling kerosene. As far as the present case is concerned, there is absolutely no dispute as to the last words spoken by the deceased Ratheesh Kumar to PW1 and PW3 that the accused hacked him with a knife. The only difference is that PW5 and PW9 had stated that the above words were in Tamil language. Therefore, the requirement of reproduction of the exact words used by the deceased in his dying declaration is fulfilled in the present case, and hence the question whether the above words of the deceased were in Malayalam or Tamil language, is not having any significance. This is especially so, given the statement of PW1 during chief examination that he and his family hailed from Madurai District in Tamil Nadu, and that they came to Wayanad 39 years ago. Therefore, the use of Tamil language in the conversation between the deceased and his parents (PW1 and his wife) is not an unusual, strange or suspicious thing. For the above reason, the dictum laid down by the Hon'ble Supreme Court in Darshana Devi (supra) has no applicability in the facts and circumstances of this case.

22. In Meesala Ramakrishnan v. State of Andhra Pradesh [(1994) 4 SCC 182], the Apex Court held that dying declaration recorded on the basis of nods and gestures is not only admissible but possesses evidentiary value, the extent of which shall depend upon who recorded the statement, 2024:KER:65526 17 Crl.A.No.599/2017 what is his educational attainment, what gestures and nods were made, what were the questions asked - whether they were simple or complicated - and how effective or understandable the nods and gestures were.

23. As far as the present case is concerned, the evidence tendered by PW1 is that after reaching the place where his son, the deceased, was found lying in an estate road in a pool of blood, he asked his son what happened. In answer to the above question, the deceased is said to have stated that Nagaratnam hacked him with a knife. The evidence tendered by PW3 is to the effect that when he found that it was Ratheesh (the deceased), who was lying in the road soaked in blood due to the multiple injuries suffered, he asked him who had done this. In answer to the above question, the deceased is said to have told "Nagaratnam hacked him". Thus, it is apparent that neither the questions put to the deceased nor the answers given by the deceased were in so many words making it complex and susceptible to different meanings. Going by the law laid down by the Apex Court in Meesala Ramakrishnan (supra), even if the deceased had conveyed the alleged act of the accused hacking him with a knife by mere words or gestures, the dying declaration so tendered could not be said to be vitiated. That being so, the mere fact that PW5 and PW9 had stated that the deceased had conveyed the information in Tamil about the alleged act of the appellant hacking him with a knife, cannot 2024:KER:65526 18 Crl.A.No.599/2017 be said to be a circumstance which would vitiate the sanctity of the said dying declaration.

24. In Bakshish Singh v. State of Punjab [AIR 1957 SC 904], the Apex Court had considered the legal sanctity of a dying declaration given by the deceased in Punjabi language which was taken down in Urdu. Upholding the validity of the above dying declaration, it has been observed by the Apex Court in the aforesaid decision that the recording of the dying declaration in Urdu, cannot be a ground for saying that the statement does not correctly reproduce what was stated by the declarant and that it was a wholly inadequate reason for rejecting the dying declaration. Thus, it is clear from the law laid down by the Apex Court in the aforesaid decisions that what actually matters is the exact information which the deceased had conveyed through his last words, and not the nature or the style of the words used for conveying what he had in mind. It is pertinent to note that PW1 and PW3 have not stated that the deceased told them in any particular language about the cause of his injuries. The mere fact that the above witnesses deposed before the Trial Court attributing Malayalam words to the information said to have been conveyed by the deceased about the cause of the injuries suffered by him, cannot be said to be a reason to rule out the possibility of the deceased using Tamil words for conveying what was in his mind, since it is 2024:KER:65526 19 Crl.A.No.599/2017 seen from the evidence of PW1 that they were actually persons of Tamil origin.

25. Another reason pointed out by the learned Senior Counsel representing the appellant to discard the evidence pertaining to dying declaration is that the medical evidence brought out by the prosecution through Ext.P11 wound certificate and the testimony of PW20, the Doctor who attended the deceased in a private hospital after one hour from the time of occurrence, would rule out the possibility of the deceased speaking to PW1 and PW3 about the cause of the injuries suffered by him. It is true that PW20 stated during the chief examination itself that at the time of his examination of the deceased he found that the patient was conscious but not able to answer properly due to his pain. In cross-examination, PW20 made it clear that the injuries suffered by the deceased were of such a nature that normally he may not be able to speak properly. The learned Senior Counsel representing the appellant also placed much reliance upon the evidence tendered by DW1, a Professor of Forensic Science Department, KMCT Medical College Hospital, Kozhikode, that the injuries noted as injury Nos.6 and 45 in Ext.P13 postmortem report, would have severely impaired the ability of the deceased to speak desirably. We are not inclined to accept the argument of the learned Senior Counsel that the medical evidence in the above regard would completely rule out the possibility of the deceased uttering three or four words 2024:KER:65526 20 Crl.A.No.599/2017 implicating the appellant as the person who hacked him. The mere fact that PW20 had stated that the deceased might not have been in a position to speak properly as a result of the injuries suffered by him, does not mean that the utterance of the words 'Nagaratnam hacked him with a knife', was a total impossibility. It is pertinent to note that DW1, the witness who had been heavily relied on by the defence, had made it clear that the vocal cord of the deceased was not injured and hence, he may utter cry though he may not talk clearly. Furthermore, PW23, the Associate Professor and Deputy Police Surgeon, Kozhikode who conducted the autopsy and issued Ext.P13 postmortem report, categorically stated before the Trial Court that since there were no cut injury on the vocal cord, there would not have been any obstruction for the injured to speak or to cry. Taking into account of the evidence of PW23 in the above regard, along with the unequivocal statements of PW1, PW3, PW5 and PW9 about the dying declaration tendered by the deceased that the appellant hacked him with a knife, we have no hesitation to hold that the deceased was not incapacitated from uttering the words disclosing the cause of the injuries sustained by him. It is pertinent to note that at the time of cross-examination of PW1, PW3, PW5 and PW9, no questions were put by the defence counsel that the deceased had suffered injuries of such a nature which would have impaired his capacity to speak.

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26. As in the case of all other instances when there is conflict between the medical evidence and the oral evidence adduced by eyewitnesses, the settled position of law that the ocular evidence would prevail upon the medical evidence, holds good in the appreciation of evidence pertaining to dying declaration as well. In Nanahau Ram & Anr. v. State of Madhya Pradesh [1988 Supp SCC 152], the Apex Court had the occasion to deal with a case where the medical opinion about the impossibility of survival for over half an hour by the victim who suffered injury during gun fire, was controverted by the deposition of the witnesses regarding dying declaration made by the deceased. In the aforesaid case, the Apex Court held that the medical opinion could not wipe out the direct testimony of witnesses that the deceased was in a conscious state to make the oral dying declaration.

27. The divergent views expressed by Three Judge Benches of the Apex Court in Paparambaka Rosamma v. State of A.P [(1999) 7 SCC 695] and Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562] resulted in the authoritative pronouncement of the Constitution Bench of the Hon'ble Supreme Court in Laxman v. State of Maharashtra [(2002) 6 SCC 710] upholding the view in Koli Chunilal Savji (supra) that the medical certification that the injured was in a fit state of mind at the time of making the declaration was not at all an inevitable requirement, if the other evidence 2024:KER:65526 22 Crl.A.No.599/2017 adduced in the case would convincingly establish that the dying declaration given by the deceased was truthful and voluntary.

28. In Prakash & Anr. v. State of Madhya Pradesh [(1992) 4 SCC 225], the Apex Court had the occasion to deal with a case where the evidence of the Doctor did not show that the deceased was not fit to make a dying declaration, whereas the family members of the deceased tendered evidence pointing to the dying declaration made by the victim. In the aforesaid case, the Hon'ble Supreme Court observed as follows in paragraph No.11 of the judgment:

".................... In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity, and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognized the assailants. In the instant case, there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore, quite likely that on being asked the deceased would name the assailants."

29. The same view with regard to the predominance of ocular evidence about the dying declaration made by the victim over and above the medical evidence pertaining to opinion about the impossibility of the deceased giving such statements, has been followed by the Apex Court in Pothakamuri Srinivasulu v. State of Andhra Pradesh [(2002) 6 SCC 399] and 2024:KER:65526 23 Crl.A.No.599/2017 Parbin Ali & Anr. v. State of Assam [(2013) 2 SCC 81]. Thus, the argument advanced by the learned Senior Counsel that the medical evidence adduced by PW20 and DW1 would defeat the sanctity of the evidence pertaining to the oral dying declaration made by the deceased, cannot be accepted in the light of the settled position of law which we have discussed aforesaid.

30. The learned Senior Counsel representing the appellant took much pains to substantiate his argument that the indication in Ext.P11 injury certificate in Column No.9 about the cause of injury as 'assault by unknown person', would defeat the veracity of the evidence tendered by PW1 and PW3 about the dying declaration said to have been made by the deceased to them implicating the appellant as the assailant who inflicted cut injuries throughout his body. Adverting to the evidence of PW1 and PW3 that they stated to PW20, the Doctor who first attended the deceased, about the incident, it is argued that, if the story of dying declaration mooted by the prosecution was true, then PW1 and PW3 would have definitely stated to PW20 that the injuries caused to the deceased were due to assault by the appellant herein. Thus, it is submitted that the evidence let in by PW1, PW3, PW5 and PW9 about the statements said to have been made by the deceased implicating the appellant as the assailant, is liable to be eschewed due to the aforesaid reason. We are 2024:KER:65526 24 Crl.A.No.599/2017 not inclined to accept the above argument advanced by the learned Senior Counsel for the reason that a Doctor is not at all concerned as to who committed the offence, and that his primary effort would be to save the life of the person brought before him rather than indulging in a roving enquiry about the identity of the assailant or the manner of commission of the offence. Furthermore, it is to be noted that the relevant columns in an injury certificate pertaining to the background of the case would be filled up only later on, and that it will be the particulars of injuries and the treatment administered, which the Doctor would incorporate in the treatment record with top priority. At any rate, the indication in an injury certificate that the assailant was unknown, cannot be projected as a substantial point to challenge the evidence tendered by the persons who brought the injured to that hospital.

31. It has been held by the Apex Court in paragraph No.17 of the judgment in Pattipati Venkaiah v. State of Andhra Pradesh [(1985) 4 SCC 80] as follows:

"Another argument advanced before us was that although PWs 1 and 2 were supposed to be eye witnesses, they never cared to disclose the name of the assailant to the Doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A Doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life 2024:KER:65526 25 Crl.A.No.599/2017 of the person brought to him and to inform the police in medico legal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the Doctor. It is well settled that Doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the postmortem immediately, and if they start examining the informants, they are likely to become witnesses of the occurrence which is not permissible."

32. In P.Babu and Others v. State of Andhra Pradesh [(1994) 1 SCC 388] the Apex Court held, in the matter of absence of entry in the injury certificate about the name of the assailant, as follows:

"It is a matter of common knowledge that such entry in the injury certificate does not necessarily amount to a statement. At that stage, the Doctor was required to fill up that column in a normal manner and it was not the duty of the Doctor to enquire from the injured patient about the actual assailants and the enquiry would be confined as to how he received the injuries namely the weapons used etc."

33. The law laid down by the Apex Court upon the above point is followed by a Division Bench of this Court in Valson and Another v. State of Kerala [(2008) 12 SCC 241]. Therefore, the challenge raised by the defence against the veracity of the dying declaration due to the absence of the name of the assailant in Ext.P11 injury certificate, is devoid of merit.

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34. As regards the argument advanced by the learned Senior Counsel that the story of dying declaration put forward by the prosecution would fall to the ground in the light of the evidence adduced by DW1, the Professor of Forensic Science Department of KMCT Medical College Hospital, Kozhikode, that the nature of injuries suffered by the deceased are indicative of attack by more than one person from the front as well as from behind, that too, with one more weapon of pointed blade, it has to be stated that the medical evidence in the above regard cannot prevail upon the ocular evidence adduced in this case. We have already discussed this aspect in detail by relying on the decisions of the Apex Court in Pothakamuri Srinivasulu, Nanahau Ram, Laxman, Prakash and Parbin Ali (supra) about the predominance and priority which the ocular evidence wield in the matter of dying declaration over and above the medical evidence about the chances of the deceased not making such declaration. The settled legal proposition that ocular evidence would have primacy over medical evidence except in cases where the medical evidence completely rules out all possibility of what is brought out in the oral evidence, has been laid down by the Apex Court in Rakesh and Another v. State of Madhya Pradesh [(2011) 9 SCC 698], Kathi Bharat Vajsur and Another v. State of Gujrat [(2012) 5 SCC 724] and State of U.P v. Hari Chand [(2009) 13 SCC 542]. For the sake of brevity, we refrain from 2024:KER:65526 27 Crl.A.No.599/2017 inflating this judgment with more authorities on this point. We confine ourselves by observing that the evidence of DW1 relied on by the appellant about the chances of involvement of more than one assailants with one more weapon, can only be eschewed since there is absolutely no reason to disbelieve the evidence of PW1, PW3, PW5 and PW9 about the dying declaration made by the deceased implicating the appellant as the assailant who inflicted multiple slash injuries throughout his body.

35. As already stated above, PW3 had adduced evidence that when he rushed to the spot hearing the cries of the deceased, he had the occasion to see the appellant running away in his opposite direction with a knife in his hand. PW3 further stated that the appellant did not respond, though he called him by name. The above evidence of PW3 is challenged by the learned Senior Counsel for the appellant by referring to the evidence of PW9 who deposed during cross-examination that when he asked PW3 about the incident, instead of revealing the name of the assailant, PW3 is said to have stated that 'one person had gone that way after hacking'. It is pointed out that if PW3 who was very much familiar with the appellant, had the occasion to see him running away with the weapon of offence immediately after the incident, he would have definitely stated to PW9 that Nagaratnam was found fleeing with a knife shortly after the incident. We are not inclined to accept the argument of 2024:KER:65526 28 Crl.A.No.599/2017 the learned Senior Counsel in the above regard, which is to a great extent speculative in nature. The words used by PW9, while giving evidence before the Trial Court, about his conversation with PW3, and the way in which PW3 is said to have communicated to him about the event which he had seen, cannot be given over-emphasis to suspect the trustworthiness of PW3. It cannot be expected that the evidence tendered by PW9 about his conversation with PW3 would be the exact verbatim reproduction of what PW3 told him. The sanctity of the evidence of PW3 cannot be doubted for the reason that PW9 deposed before the Trial Court about the words used by PW3 while referring to the assailant as 'a person' instead of mentioning the name of the assailant. It is not possible to speculate upon the above evidence of PW9 and arrive at conclusions based on surmises and conjectures. For the above reason, the argument advanced by the learned Senior Counsel does not appeal to us.

36. The evidence adduced by the Prosecution by relying on Ext.P28 FSL Report, is strongly challenged by the defence counsel stating the reason that the records would reveal the retention of the blood sample of the deceased at the Regional Chemical Examiner's Laboratory, Kozhikode for a period of more than three years before getting it forwarded to the Forensic Science Laboratory as per the orders passed by the Magistrate in a belated report filed on 20.03.2012. Referring to the indication in Ext.P26 forwarding 2024:KER:65526 29 Crl.A.No.599/2017 letter of the Chief Judicial Magistrate, Kalpetta about the affixture of specimen seal in the blood sample, the learned Senior Counsel pointed out that the indication in Ext.P28 FSL Report about the tallying of seal appeared to be suspicious since there is nothing on record about the transmission of specimen seal impression by the Chief Judicial Magistrate, Kalpetta to the Forensic Science Laboratory, Thiruvananthapuram. We are not inclined to accept the argument of the learned Senior Counsel attributing strange and suspicious circumstances in the above matter. This is because of the reason that Ext.P24 report of the Inspector of Police, Kalpetta would make it clear that the specimen blood sample of the deceased, collected by the Police Surgeon at the time of autopsy, was sent to the Regional Chemical Examiner's Laboratory, Kozhikode instead of sending it to the Forensic Science Laboratory, Thiruvananthapuram. In the aforesaid report, the Investigating Officer has requested the Chief Judicial Magistrate to direct the Regional Chemical Examiner's Laboratory to forward the aforesaid sample to the Forensic Science Laboratory, Thiruvananthapuram. Ext.P25 Mahazar prepared by the Investigating Officer would reveal that the aforesaid blood sample was taken back from the Regional Chemical Examiner's Laboratory, Kozhikode under orders from the Chief Judicial Magistrate, Kalpetta. Ext.P26 forwarding letter, when read along with Ext.P28 FSL Report, would reveal that the very same 2024:KER:65526 30 Crl.A.No.599/2017 sample which was taken back from the Regional Chemical Examiner's Laboratory, Kozhikode, was forwarded to the Forensic Science Laboratory for analysis. The Forensic Science Laboratory, Thiruvananthapuram to which all the other remaining items were already forwarded at the stage of investigation of the case, could very well compare the specimen seal available there with the seal impression in the blood sample forwarded vide Ext.P26 letter of the Chief Judicial Magistrate, Kalpetta. Thus, there is nothing suspicious or unusual in the endorsement in Ext.P28 FSL Report about the comparison of the seal impression in the forwarded items with the specimen seal impression available in the Forensic Science Laboratory. It is true that there had been a delay of three years in transmitting the blood sample of the deceased to the Forensic Science Laboratory, since it happened to be kept at the Regional Chemical Examiner's Laboratory, Kozhikode, to which it was sent at the time of investigation. But there is no reason to consider the above aspect as a ground to discard the scientific evidence adduced by the prosecution on the basis of Ext.P28 FSL Report since the above blood sample of the deceased was apparently remaining under safe and secure custody throughout the period from its collection to the time of its analysis. Furthermore, no prejudice is said to have been caused to the accused due to the above delay. For the above reason, we are not inclined to accept the challenge against the reliability of 2024:KER:65526 31 Crl.A.No.599/2017 Ext.P28 FSL Report.

37. The proposition of law that a dying declaration can be the sole basis of conviction without any corroboration if it is found to be trustworthy and reliable, is well established by a catena of decisions of the Apex Court. The principle on which dying declaration is admitted in evidence is indicated in the legal maxim 'Nemo Moriturus Praesumitur Mentire' which means a man will not meet his Maker with a lie in his mouth. The situation in which a person is about to embrace death is so solemn and serene that he will not venture to state any lie as to the reason why such a situation arose. That is why the law accepts the veracity of such statement made without oath, and not tested with the touchstone of cross-examination. As far as the present case is concerned, in addition to the evidence of the dying declaration of the deceased implicating the appellant as the assailant who inflicted multiple injuries upon him, the prosecution relies on the evidence of PW3 who happened to see the appellant running away with a knife immediately after the commission of offence. Furthermore, the prosecution placed much reliance upon the scientific evidence adduced through Ext.P28 FSL Report about the presence of blood of Group-B, which was the blood group of the deceased, in MO4 and MO5 lungi and shirt worn by the accused at the time of commission of the offence. We find no reason to disbelieve the aforesaid evidence adduced by the prosecution 2024:KER:65526 32 Crl.A.No.599/2017 in support of the charge levelled against the appellant.

38. Now the only question which remains to be looked into is whether the act of the appellant inflicting multiple slash injuries upon the body of deceased Ratheesh Kumar by hacking with MO6 knife would amount to murder, or it could be termed as culpable homicide not amounting to murder. It is true that PW23 had tendered evidence to the effect that the life of the deceased could have been saved, if proper medical treatment was given in time. But the above aspect alone cannot be taken as a ground to consider the offence involved in this case as one under Section 304 I.P.C. This is because of the reason that the evidence let in by the prosecution through Ext.P13 postmortem report and the testimony of the Police Surgeon as PW23 would reveal that as many as 43 incised injuries were inflicted throughout the body of the deceased from head to thighs resulting in profuse bleeding leading to his death. The evidence tendered by the prosecution through the testimony of PW20 and the wound certificate which is marked as Ext.P11 would also reveal that the victim suffered multiple injuries upon his head with fracture of skull bone, bone deep injury on the neck, partial amputations of right wrist, forearm and upper arm and a stab wound on the middle of chest with profuse bleeding. It cannot be expected that the aforesaid act of the appellant was done with the objective of causing anything other than taking away the life of 2024:KER:65526 33 Crl.A.No.599/2017 the deceased. Apparently, the crime in the instant case was not one committed in the course of sudden quarrel or sudden fight on the spur of a moment. Nor could it be said that any grave and sudden provocation was the causative factor which triggered the incident. On the other hand, there is evidence galore indicative of the bitter enmity which the accused nurtured towards the deceased in connection with the alleged act of the deceased and his associates whisking away the goat of the brother of the appellant pursuant to a dispute with regard to the goat of the appellant's brother grazing in the cardamom cultivation of the deceased and causing destructions therein. The evidence tendered by PW1, PW3, PW5, PW11, PW13, PW18 and PW22 point to the previous enmity of the appellant with the deceased in connection with the above incident, which eventually resulted in the commission of this crime as an act of vindictiveness. Therefore, the evidence adduced by the prosecution clearly makes out the essential element of committing the act with the intention to cause death, which would bring the case within the sweep of the first limb of Section 300 I.P.C. Needless to say that, there is absolutely no material to dwindle the gravity of the offence and to bring it down within the scope of culpable homicide not amounting to murder dealt with in Section 304 I.P.C.

2024:KER:65526 34 Crl.A.No.599/2017

39. The facts and circumstances under which culpable homicide tantamounts to murder, and the principles governing the field, are dealt with exhaustively by the Apex Court in State of Uttarakhand v. Sachendra Singh Rawat [(2022) 4 SCC 227]. After discussing the case law in 13 decisions of the Apex Court, from Virsa Singh v. State of Punjab [AIR 1958 SC 465] to Stalin v. State represented by the Inspector of Police [(2020) 9 SCC 524], the Hon'ble Supreme Court enumerated the following factors to be looked into for deciding a case of culpable homicide not amounting to murder and the intention to cause death:

            (i)     Nature of the weapon used;
            (ii)    Whether the weapon was carried by the accused or
                    was picked up from the spot;

(iii) Whether the blow is aimed at a vital part of the body;

            (iv)    The amount of force employed in causing injury;
            (v)     Whether the act was in the course of sudden quarrel
                    or sudden fight or free-for-all fight ;
            (vi)    Whether the incident occurs by chance or whether
                    there was any pre-meditation;

(vii) Whether there was any prior enmity or whether the deceased was a stranger;

            (viii) Whether      there     was    any    grave    and     sudden
                    provocation,    and    if   so,    the    cause    for   such
                    provocation;
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Crl.A.No.599/2017


            (ix)   Whether it was in the heat of passion;
            (x)    Whether the person inflicting the injury has taken
                   undue advantage or has acted in a cruel and unusual
                   manner;

(xi) Whether the accused dealt a single blow or several blows;

As far as the present case is concerned, the weapon used is MO6 chopper, apparently lethal, and it was carried by the accused. The nature of the injuries suffered by the deceased would reveal that he was hacked with the above weapon upon the vital parts of his body with much force. The mode of operation of the crime discloses the premeditation on the part of the accused who was having prior enmity with the deceased. The commission of the crime was apparently not on grave and sudden provocation or under the heat of passion. So also, it is seen from the evidence that the accused acted in a cruel manner by inflicting multiple slash injuries from head to thighs leading to profuse bleeding. Thus, all the eleven parameters referred hereinabove are indicative of the accused committing the act with the intention of causing death of the victim. Therefore, it has to be held that the trial court rightly found that the accused committed murder punishable under Section 302 I.P.C.

40. In the light of the discussions aforesaid, we find no reason to interfere with the judgment of the Trial Court, convicting and sentencing the 2024:KER:65526 36 Crl.A.No.599/2017 appellant for murder.

Resultantly, the appeal stands dismissed, confirming the conviction and sentence of the appellant for the commission of offence punishable under Section 302 I.P.C.

Sd/-

RAJA VIJAYARAGHAVAN V, JUDGE Sd/-

G.GIRISH, JUDGE jsr/vgd

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