Sugathan vs State Of Kerala on 30 March, 2016

[Cites 20, Cited by 2]

Kerala High Court

Sugathan vs State Of Kerala on 30 March, 2016

28.07.2007 turned out to be an inauspicious day for Vasudevan and his family. He was stabbed to death by the accused, according to prosecution allegation. PW1 is the wife of deceased. They belonged to Kurava community. PW1, as on the date of incident, was working in a cashew factory. Her husband, the deceased, was a Postman by profession.

2. According to prosecution allegation, there used to be frequent quarrels between Vasudevan and accused and it was a routine practice of accused to hurl abuses at Vasudevan and his family. According to prosecution allegations, unable to put up with the said act of accused, the husband of deceased preferred a Crl. Appeal No.282/2011 2 complaint before Police. The respective parties were called to the Police Station and a settlement was arrived at. But that created a bitter attitude in the accused. On 28.07.2007, it is alleged that at about 5.30 p.m, while deceased Vasudevan, who is none other than the husband of PW1, was returning home on his bicycle, when he reached in front of his house, the accused, who was his neighbour, came out of his house, intercepted the bicycle on which Vasudevan was coming along and after hurling abuses including his caste name, drew out a knife from his loins and inflicted repeated stab injuries on the deceased. Seeing the attack on the deceased, PW1 and others rushed to the place. At that time, it is further alleged by the prosecution that accused Nos.2 and 3 came rushing out of the house and pelted stones on the deceased throwing him down from his bicycle.

3. It is the further allegation that even after the deceased had fallen on the ground, accused continued to stab him. When PW1 and others came to the rescue of Crl. Appeal No.282/2011 3 the husband of PW1, accused left the place. The injured was removed to Panthalam hospital. The doctor, after examining the victim, advised that the victim be taken to Medical College Hospital, Kottayam. It was so done. Thereafter, within three hours of the incident, PW1 laid Ext.P1 First Information Statement before Nooranad Police Station. PW21 recorded the statement furnished by PW1 and registered crime as per Ext.P15 First Information Report. Finding that the offence punishable under the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act is also attracted to the facts of the case, as enjoined by the said law, the Deputy Superintendent of Police concerned started investigation of the crime. As per the instructions issued to him by the Dy.S.P concerned, PW21 went to the place of occurrence and collected the postal articles and currency notes found at the place as per Ext.P11 mahazar. He was convinced that it was while Vasudevan was carrying postal articles that the incident had taken place. He also made sure that a Crl. Appeal No.282/2011 4 guard is posted to safeguard the scene. He would further say that as per the instructions given to him by the Dy.S.P, postal articles and money were handed over to CW15 as per kychit which is marked as Ext.P4. He had the third accused arrested on 19.08.2007 at 6.45 p.m and arrest memo and inspection memo are Exts.P16 and P16

(a). On interrogation of the third accused, based on the confession statement said to have been given by him, weapon of offence was recovered as per Ext.P12 mahazar. The portion which led to the recovery is marked as Ext.P12(a).

4. In the meanwhile, PW24 took over investigation of the case. He confirmed the version given by PW21 that he had issued instructions to PW21 to visit the scene of occurrence and collect the postal articles and also to ensure that the scene is guarded. On 29.07.2007, on taking up investigation, he went to the place of occurrence and prepared Ext.P13 mahazar. He collected the articles found at the place of occurrence which are Crl. Appeal No.282/2011 5 marked as M.O.s 4 and 5. He recorded the statement of witnesses. He also conducted the search of house of accused after preparing Ext.P18 search memo and had it sent to court. Search list prepared by him is Ext.P19. On 30.07.2007, on questioning PW1, he was able to seize the pants and shirts, which are marked as M.O.s 2 and 3, said to have been worn by the deceased at the relevant time as per Ext.P9 mahazar. His investigation revealed that the first accused was undergoing treatment in Mavelikkara Government Hospital. He was kept under surveillance. According to him, a statement was given by the first accused to H.C.3649-30/07 on the basis of which Crime No.265/2007 was registered. The Investigating Officer would say that his investigation to that effect revealed that it was a false case and therefore he forwarded a refer report to court. The first accused was arrested from the hospital on 01.08.2007. The arrest memo and inspection memo are marked as Exts.P14 and P14(a).

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5. It is worth mentioning here that Vasudevan, the deceased, was taken to Medical College Hospital, Kottayam and he was attended to by PW3 who was Senior Resident Doctor on contract basis at the relevant time. Ext.P3 is the certificate issued by him. He would say that the injuries shown in Ext.P3 certificate are fatal. While undergoing treatment in the Medical College Hospital, on 09.08.2007, Vasudevan breathed his last. PW26 had conducted surgery on the victim and he describes the injuries noticed by him.

6. It may be noticed here that initially PW24 formed an opinion on the basis of materials collected by him that the offences under Section 307 IPC and Section 3(1)(x) of Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act were committed by the accused and therefore he filed Ext.P20 report. He also had the complaint which was filed earlier by the deceased against the accused seized as per Ext.P10 mahazar. Crl. Appeal No.282/2011 7

7. On coming to know that Vasudevan succumbed to his injuries on 09.08.2007, PW24 issued instructions to the Circle Inspector of Mannar Police Station who, on the basis of said instructions received by him, went to the Medical College Hospital, Kottayam and conducted inquest over the body of deceased and prepared Ext.P5 report. PW24 thereafter filed Ext.P21 report to alter the charge to one under Section 302 IPC. On 28.09.2007, second accused surrendered before PW24. He had the property lists prepared and he ensured that the properties recovered during investigation were forwarded to the court as per Exts.P23 to P25, list of properties. He had Ext.P2 complaint filed before court as per Ext.P26 report. He obtained the caste certificates of the respective parties and had them produced before court. He filed forwarding note before court to have the articles seized during investigation sent for chemical examination and obtained Ext.P27 report. Crl. Appeal No.282/2011 8

8. The Investigating Officer found that no wound certificate was prepared by the Medical College Hospital where Vasudevan was taken subsequently. However, he had case sheet relating to Vasudevan seized during investigation and had it produced before court. He recorded the statement of witnesses, completed investigation and laid charge before court.

9. The court before which final report was laid took cognizance of the offence and finding that the offence under the SC/ST (Prevention of Atrocities) Act is also involved, the case was committed to Special Court under Section 209 Cr.P.C after following necessary procedures. The said court, which is the Sessions Court, Alappuzha, on receipt of committal records and on appearance of accused before the said court, framed charge for the offences under Sections 341, 302, 324 read with Section 34 IPC and Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act against the accused persons. To the charge, accused pleaded not guilty and Crl. Appeal No.282/2011 9 claimed to be tried.

10. The prosecution therefore had PWs 1 to 27 examined and Exts.P1 to P29 marked. The defence had Ext.D1 marked while examining the prosecution witnesses. M.O.s 1 to 5 were got identified and marked. The court exhibits were marked as Exts.X1 and X2 series.

11. After the close of the prosecution evidence, accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought out in evidence against them and maintained that they were innocent. In addition, the first accused stated that he had nothing more to state than what he had stated in reply to the questions put to him and he also maintained that he had gone for work on the date of incident and he knew nothing about the incident.

12. The court below, impressed by the evidence of PWs 1, 2, 6, 18 and 22 and also by the medical evidence - both case sheet as well as postmortem certificate, found that the prosecution has succeeded in Crl. Appeal No.282/2011 10 establishing the offence against the first accused alone. It also found that the attempt of the prosecution to rope in the second and third accused was not successful and pelting of stones attributed to second and third accused was not proved beyond reasonable doubt and thus acquitted the second and third accused for all the charges levelled against them. However, the first accused was found guilty of the offence punishable under Sections 302, 341 and 324 IPC and also under Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act and therefore convicted and sentenced for the offences as could be discerned from the judgment of the lower court. The conviction and sentence are assailed on various grounds.

13. Learned counsel appearing for the appellant contended that there has been total misdirection in appreciation of evidence in the case and the court below has not applied its mind to the facts and circumstances of the case more so the evidence on record. Learned counsel pointed out that even going by Crl. Appeal No.282/2011 11 the evidence of PW21, soon after the incident, they had information about the same and he had proceeded to the spot and ensured that the scene is properly guarded. That means, according to the learned counsel, the Police had information about the incident and they had all the facility to find out the details of the incident. But they waited till three hours to lapse before PW1 went over to Police Station and furnished Ext.P1 First Information Statement. Learned counsel pointed out that on facts now available, Ext.P1 could not be treated as the First Information Statement. With vehemence it was contended that PWs 1, 2, 6, 18 and 22 are uniform and consistent in their version of pelting of stones on deceased and this part of their evidence has been totally disbelieved. It is therefore clear that these witnesses were not speaking truth and they were hiding more what they have revealed. It is clear that they were speaking utter falsehood regarding pelting of stones and if that be so, it will be imprudent on the part of court to believe their Crl. Appeal No.282/2011 12 version regarding the stabbing without independent corroboration of their evidence.

14. Learned counsel appearing for the appellant pointed out that the court below was not justified in separating the two incidents and in disbelieving the witnesses only regarding pelting of stones and believing them as far as stab injuries are concerned. Learned counsel went on to point out that the evidence has to be read as a whole and if that is so done, it can be seen that the above witnesses are unworthy of credit. It was contended that the remand report filed by the Investigating Officer while producing the first accused before court specifically states that the first accused was in the hospital receiving treatment for the injuries suffered on his hands. There seems to have been no further investigation in this regard and learned counsel pointed out that this fact has been suppressed by the prosecution to prevent the accused from taking private defence. The prosecution was bound to explain how the Crl. Appeal No.282/2011 13 injuries came to be suffered by the accused and it is not necessary for the accused to put up specific plea of private defence. It would be sufficient, according to the learned counsel, if, on the materials available before court, defence is able to point out that in all probability accused might have acted in private defence, in which case, he is entitled to benefit of exemption. For the said proposition, learned counsel relied on the decision in Udaykumar Pandharinath Jadhav @ Munna vs. State of Maharashtra (2008 KHC 4594).

15. Learned counsel appearing for the appellant attacked the evidence regarding recovery of weapon. Drawing attention to the fact that it was the first accused who was accused of having stabbed the deceased and recovery was made at the instance of the third accused. It is pointed out that the recovery of M.O.1 weapon based on the confession statement of third accused, even assuming it to be proper, cannot be attributed to the act of first accused and the court having Crl. Appeal No.282/2011 14 done so has misdirected itself both on facts and in law. Once the evidence of PWs 1, 2, 6, 18 and 22 become open to serious doubt, for the infirmities already pointed out, in the absence of any other evidence especially when the recovery cannot be linked to the act of the first accused, there is no evidence at all as against the first accused and at any rate, he is entitled to benefit of doubt. For the proposition that the recovery is not proper, learned counsel relied on the decision in Raghuvir Singh vs. State of U.P and another (2015 KHC 3373).

16. Learned counsel then went on to point out that he has filed Crl.M.Application before this Court seeking to produce further evidence in the case to fortify his claim of private defence that it can be so done on the basis of the decision in Jose vs. State of Kerala (2014 (1) KHC 661). In short, the contention taken by the learned counsel for the appellant is that the court below has committed grievous error in law and on facts in placing implicit faith on the evidence of PWs 1, 2, 6, 18 Crl. Appeal No.282/2011 15 and 22 as regards one portion of their evidence while they were totally disbelieved with regard to other portion. According to the learned counsel, it is clear from the facts that their evidence was not accepted with regard to one portion and so they were not speaking truth regarding the incident.

17. Countering the above arguments, learned Public Prosecutor pointed out that there are no grounds to interfere with the findings of the court below. None of the contentions raised by the appellant are sustainable, according to the learned Public Prosecutor. It is not the law, according to the learned Public Prosecutor, that even assuming that a portion of evidence of a witness is found to be false, evidence of that witness should be discarded in toto. The principle of 'falsus in uno, falsus in omnibus' is not applicable in India, according to learned Public Prosecutor. The clinching evidence furnished by PWs 1, 2, 6, 18 and 22 regarding actual incident in which Vasudevan suffered stab injuries admits of no doubt Crl. Appeal No.282/2011 16 regarding the act of first accused.

18. Learned Public Prosecutor pointed out that the hue and cry made after pelting of stones and non-mention of any injuries consequent thereon are of no consequence. It would have been significant had there been an embellishment or development subsequently by the witnesses. But, unfortunately for the defence, according to the learned Public Prosecutor, the fact of pelting of stones finds a mention in Ext.P1 itself. The mere fact that the said act spoken to by PWs 1, 2, 6, 18 and 22 is not supported by medical evidence does not mean that the act had not occurred. Probably, the court below found it unsafe to place reliance on that portion of the evidence. But that does not mean that the court should reject their evidence in toto. The evidence of PWs 1, 2, 6, 18 and 22 are consistent and uniform regarding the repeated stab injuries inflicted by the first accused on the deceased.

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19. Regarding the plea of private defence, learned Public Prosecutor pointed out that it is clearly an afterthought and it needs no consideration at all. Not even a remote suggestion is made to any of the witnesses in this regard and nor to Investigating Officer also. Learned Public Prosecutor fairly conceded that even assuming that the plea of private defence is not raised as such by the defence, if the materials available in the prosecution evidence culls out such an exemption, that plea can be considered. But on a reading of the evidence of prosecution witnesses as a whole, there can be no manner of doubt that such a plea is not available at all. Learned Public Prosecutor pointed out that if there was such a defence in the mind of accused, it should have reflected in the cross-examination of prosecution witnesses or at least a suggestion should have been put to the Investigating Officer. The attempt at the appellate stage to produce the document makes the position worse, according to the learned Public Prosecutor. Apart from Crl. Appeal No.282/2011 18 the fact that the accused had ample opportunity to produce evidence in support of his defence which he did not utilise, the document now produced will cut at the root of plea of private defence.

20. It is significant to notice, according to the learned Public Prosecutor, that the Investigating Officer in the remand report had specifically stated that the first accused was found in the hospital undergoing treatment for the injuries suffered to his hands. The document now produced by the defence would indicate that the first accused set up a totally different story with regard to the incident in which he received those injuries and it had nothing to do with the incident in question. The attempt now to telescope those records into this case is not justifiable and cannot be countenanced.

21. Learned Public Prosecutor also brought to the notice of this Court that even assuming that some minor injuries have been suffered by the accused, the prosecution is not bound to explain all the injuries. For Crl. Appeal No.282/2011 19 the above proposition, learned Public Prosecutor relied on the decision in Bhaba Nanda Sarma and others vs. The State of Assam (AIR 1977 SC 2252).

22. As regards the complaint raised regarding non collection of bloodstains from the place of occurrence, which, according to prosecution witnesses, were due to pelting of stones on the deceased, it is pointed out that it can at best be treated as a defect in the investigation and it shall not tell upon the prosecution evidence which is clinching, convincing and cogent and it is not a ground to discard the evidence of the prosecution witnesses. For the said proposition, learned Public Prosecutor relied on the decision in State of Karnataka vs. K. Yarappa Reddy (1999) 8 SCC 715).

23. As regards the complaint raised that no independent witnesses have been examined and all the prosecution witnesses on whose evidence reliance is placed are interested witnesses, cannot stand for a moment, learned Public Prosecutor pointed out that the Crl. Appeal No.282/2011 20 said contention cannot be accepted in the light of the decisions in Natthu and others vs. State of Uttar Pradesh (AIR 1977 SC 2096) and in Pulicherla Nagaraju alias Nagaraja Reddy vs. State of Andhra Pradesh (AIR 2006 SC 3010).

24. The first and the foremost question that arises for consideration is what is the cause of death of Vasudevan, Postman, who is the husband of PW1. That Vasudevan suffered as many as four stab injuries at the hands of accused on 28.07.2007 at about 5.30 p.m cannot be a matter of doubt. PWs 1, 2, 6, 18 and 22 testified about the act committed by the accused and the injuries suffered by the victim. The records reveal that even though the injured was taken to Government Hospital, Panthalam, no treatment was in fact meted out to him and he was taken to Medical College Hospital at Kottayam. He was admitted in the Medical College Hospital and that would be borne out from the evidence of PW3. PW3, at the relevant time, was functioning as Crl. Appeal No.282/2011 21 Senior Resident Doctor on contract basis at Medical College Hospital, Kottayam. He owns up Ext.P3 certificate issued by him. He speaks about the injuries noticed by him on the victim and as per his opinion, the injuries suffered are fatal in nature. Exts.X1 and X2 series are the case sheets relating to the treatment given to the deceased at the Medical College Hospital, Kottayam. On going through the said documents, one is able to discern the treatment undergone by the victim and it is seen from the said records that on 09.08.2007, the victim succumbed to his injuries.

25. Going by the evidence of PW24, on coming to know about the death of the victim, he authorised the Circle Inspector of Manner Police Station to conduct inquest. That was so done and Ext.P5 is the inquest report. The inquest report also mentions the injuries noticed by the officer concerned.

26. The other item of evidence is the testimony furnished by PW23, the Forensic Surgeon, who conducted Crl. Appeal No.282/2011 22 autopsy. Ext.P17 is his report. Ext.P17 shows the following ante-mortem injuries:

1. Healing wound with suture marks along its margins 5cm. long oblique on the front of abdomen with its upper inner and 9cm. below costal margin and 10 cm to the left midline.

2. Healing wound with suture marks along with margins 2.5cm long oblique on the front of left side of abdomen with its upper outer and 12cm outer to midline and 3 cm. below the lower end of previous injury.

3. Healing wound with suture marks 6 cm.

long oblique on the left side of front of abdomen with its upper outer and 14 cm.

outer to midline and 5cm. below the lower end of previous injury.

4. Healing wound with suture marks 3 cm.

long oblique on the right side of front of abdomen with its inner upper and 10cm.

outer to midline and 8cm, below the costal margin. The edges of injuries 1 to 4 were loosely adherent and communicated with the abdominal cavity. Crl. Appeal No.282/2011 23

5. Infected surgical gaped wound 24x14 cm. vertical on the front of abdomen in the midline. The upper and being 4cm below the xiphoid process. Stomach, intestines and mesentry found protruding out. The intestines were lusterless and adherent with flaques of yellow pus. The front wall of stomach near its phyloric end showed a suture 2cm. long involving whole thickness and the posterior wall of stomach showed a suture 1cm. long involving whole thickness. The jejunum showed a sutured wound 1.5cm. long involving its whole thickness close to the ante-mesentric border being 50cm. distal to duodeno-jejunal junction. The sigmoid colon showed surgical opposition.

The pancreas showed bleeding involving its whole extent and abdominal cavity contained 200ml. of purulent blood stained fluid.

6. Surgical inter costal drainage wound on the right side of the chest.

7. Surgical drainage wound on the right flank of abdomen.

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8. Surgical drainage wound on the left flank of abdomen.

9. Healing wound with suture marks 8 cm.

long vertical on the front of the right thigh 6cm. below prominence of the hip bone.

10. Infected wound 4x1x.5cm. oblique on the back of right forearm 4cm. below.

11. Infected wound 4x0.2x0.5cm on the front of left forearm 7cm above elbow".

The opinion given in Ext.P17 is that the death was due to penetrating injuries sustained to the abdomen.

27. It will be only appropriate at this point of time to refer to the evidence of PW23. It is after stating about the injuries noticed by him that he speaks about the cause of death of victim. He confirmed what is stated in Ext.P17 that death was due to penetrating injury sustained to the abdomen. According to him, injury Nos.1 to 5 are on the vital parts of the body. He in no less terms says that injury Nos.1 to 4 are independently Crl. Appeal No.282/2011 25 sufficient to cause death in the ordinary course. He further explains the cause of death as since abdomen is studded with bacteria, when injury is sustained to abdomen, bacteria will come out of intestinal column and will produce infection and it will be very difficult to control infection with available antibiotics. Be that as it may, there can be no manner of doubt that Vasudevan died of inflicted injuries and it is a case of homicide.

28. The more significant and important question that now remains to be considered is whether the court below was justified in coming to the conclusion that the prosecution has succeeded in establishing that it was the first accused who had inflicted fatal injuries. For this, court below relied on the evidence furnished by PWs 1, 2, 6, 18 and 22.

29. PW1 is the wife of the victim and PW2 is the sister in law of the victim. PW22 is a witness who happened to see the incident while she was passing along the road. PW6 is also a witness who says that while she Crl. Appeal No.282/2011 26 was engaged in cutting of grass she happened to see the incident. PW18 is more concerned with the identification of material objects though he also says about having seen the first accused holding a knife at the relevant time. The court below, for reasons convincing enough, found that the evidence of these witnesses so far as the issue relating to stabbing is concerned is acceptable and that the first accused has inflicted stab injuries. However, the court came to the conclusion that the attempt on the part of the prosecution to rope in the second and the third accused with the aid of Section 34 IPC and to fasten liability under Section 302 IPC was not successful and the prosecution had miserably failed in establishing the said fact and therefore, the second and third accused were acquitted of all the offences. But, as already stated, the court was convinced that the evidence is sufficient enough as against the first accused. The attack made against PWs 1, 2, 6, 18 and 22 have already been mentioned. Further, being an appellate court, it will be only Crl. Appeal No.282/2011 27 appropriate to refer to their evidence in brief.

30. PW1 is the author of Ext.P1 First Information Statement. It cannot be disputed that the evidence furnished by PW1 is in conformity with the narration contained in Ext.P1. According to her evidence, the incident occurred on 28.07.2007 at 5.30 p.m. PW1 would say that on the date of incident, at about 6.30 p.m, while she was cleaning her courtyard, she happened to see the first accused coming out of the house and going towards the western side and she sat on a culvert. She also happened to see him returning soon and speaking to second and third accused. Soon thereafter, according to this witness, she happened to see the first accused going towards north and then she saw her husband returning after work on his bicycle. No sooner than the victim reached near the first accused, he hurled abuses at him and prevented him from proceeding further. Questioning about the act of filing of complaint against him before the Police, PW1 would say that the first accused drew out a Crl. Appeal No.282/2011 28 knife from his loins and plunged it into the stomach of the victim. Repeated stabs were inflicted by the first accused. She would also say that this was followed by the second and third accused pelting stones at the victim. Seeing the incident, she, her sister in law PW2 and neighbours raised voices which caught the attention of a few children who were playing nearby and they rushed to the spot. She would say that the injury was so severe that the intestine of her husband had come out. He was brought to his house and the wound was tied with a towel. However, bleeding continued. Fortunately for them, a Maruti Van came along in which the victim was taken to Panthalam Hospital. Since the injuries were very severe in nature, they were advised to take the victim to Medical College Hospital, Kottayam. The victim was taken to Medical College Hospital and admitted in the said hospital. He remained under treatment in the said hospital till 09.08.2007 when he succumbed to his injuries. She identified the weapon of offence and the dress worn by Crl. Appeal No.282/2011 29 her husband at the relevant time.

31. In cross examination of PW1, it was brought out that she had not accompanied her husband to the hospital and she had only gone to the Medical College Hospital to see her husband. It is also extracted in cross examination that by about 7 p.m, Police had come to the place. She also stated that she had gone along with the Police to the Police Station. She further stated that her statement was recorded. She spoke about further statements taken from her.

32. What is significant is that the defence was unable to bring out any contradiction, inconsistency or material omission in the evidence of PW1 with reference to Ext.P1 First Information Statement said to have been furnished by her. The fact that she stood by the contents of Ext.P1 and the inability of the defence to show that she had either made any embellishment or development in her case or that she had taken inconsistent stand at the relevant time goes a long way in showing that her Crl. Appeal No.282/2011 30 evidence is capable of acceptance.

33. PW2 is the next witness who claims to have seen the incident. She is the wife of brother of Vasudevan. She resides near to the house of the victim. The accused too resides immediately on the western side of her house. According to her evidence, she was waiting near the door on the western side of her house and at that time she happened to see all the three accused coming out of their house and looking towards northern side. Then she claimed that she happened to see the first accused moving towards northern side. A short while thereafter he returned and uttered something to second accused and then the first accused returned to the place from where he had come. She then says that she happened to see the victim coming along the road on his bicycle. As per her evidence, when the victim reached near his house, he was followed by the first accused who hurled abuses at him, and saying that in no manner he will survive, drew out a knife from his loins and plunged it Crl. Appeal No.282/2011 31 into the stomach of the victim. The victim fell down from the bicycle and the witness says that she happened to see further stab injuries being inflicted by the first accused. She supports PW1 regarding the fact that she, PW1 and PW6 raised voices and people gathered at the spot and the victim was taken to hospital.

34. PW6, Vijayamma deposes that both the accused as well as the victim are close neighbours. She claims to have seen the incident. While she was collecting grass from her property, she says that at that time, she happened to see the first accused coming from the southern side moving towards the northern side and she saw him sitting on a culvert. A short while thereafter, the first accused is said to have returned to his house and then again he returned to the culvert. While so, according to PW6, she happened to see the victim coming along the road on his bicycle. Intercepting the bicycle of the victim, the first accused hurled abuses at him. This witness too would say that repeated stab injuries were Crl. Appeal No.282/2011 32 inflicted on the victim by the first accused. She also speaks about the acts committed by the second and the third accused.

35. Coming to the evidence of PW18, his role is rather limited. He would say that hearing the cries let out from the house of PW1, he and a few others, who are engaged in playing of cricket, rushed to the spot. They then happened to see PWs 1 and 2 carrying the victim to his house. They helped them. He would say that he saw a number of injuries on the abdomen of the victim and his intestine had come out. According to this witness, all the three accused were there at that time. This witness says that the third accused wrested the knife from the hands of the first accused and went towards southern side. He would say that PW6 tried to push back the intestine into the abdomen of the victim and then tied the wound with a towel. He would also say that they had removed the clothes worn by the victim at the relevant time. Though the victim was removed to the Government Crl. Appeal No.282/2011 33 Hospital, Panthalam immediately, after giving some first aid, the doctor advised them to take the victim to the Medical College Hospital, Kottayam. This witness also would say that as soon as they reached the Medical College Hospital, Kottayam, an operation was performed and the doctors had given no guarantee about the survival of the victim. This witness claimed that on most of the days while the victim was undergoing treatment in Medical College Hospital, he was beside him. He further says about the death of the victim and he returned home with the dead body of the victim. He also says that he happened to see the first accused holding a knife at the time of incident when he reached the place of incident.

36. Next is the evidence of PW22. She is the neighbour of the victim and she claims to have seen the incident. She is also a neighbour of the first accused. She would say that on 28.07.2007, at about 5.30 p.m., while she was on her way to buy coconut, she happened to see the second and the third accused running towards Crl. Appeal No.282/2011 34 the northern side declaring that Vasudevan should not be let to live. She would then say that she happened to see the victim lying on the road along with his bicycle and the first accused inflicting repeated injuries on him. It is her case that she happened to hear the exhortion made by the second and the third accused for doing away with Vasudevan. She also would say that hearing the cries let out by the inmates of the house of the victim, a few people gathered at the spot and the victim was removed to hospital.

37. One fact common in the evidence of PWs 2, 6, 18 and 22 is that the defence was unsuccessful in making out any major inconsistency or contradiction in their evidence with reference to their previous statements. That means, they have a consistent stand regarding the incident.

38. Coming to the criticism levelled against the acceptance of evidence of these witnesses, it must be said that it is baseless. True, the court below found the Crl. Appeal No.282/2011 35 evidence of these witnesses regarding pelting of stones on the victim and the consequent assertion that blood stained stones were found at the place of incident, were not established. The court below came to that conclusion mainly on two grounds; (1) that no corresponding injuries were noticed on the body of the victim and (2) the Investigation Officer had not collected the blood stained stones spoken to by the witnesses mentioned above.

39. It may not be necessary in all cases that an act would result in a visible external injury. Of course, we are not forgetting the fact that the witnesses in this case have deposed that stones were pelted heavily on the victim causing bleeding injuries to him. Even assuming that, that portion of the evidence furnished by these witnesses is not proved, it is difficult to accept the contention of the learned counsel for the appellant that their whole evidence should be rejected as not creditworthy. The argument that they are prone to Crl. Appeal No.282/2011 36 exaggeration and embellishment and would go to any extent to fasten liability on the first accused cannot be readily accepted.

40. It is true that the Investigating Officer did not see any blood stained stones at the spot. It is also true that there is no medical evidence regarding the wounds that might have been caused by pelting of stones. To that extent, the learned counsel for the appellant may be justified in his submission that for the above reasons, the court below was justified in not accepting the evidence of above witnesses in that regard. However, the contention that for the said reasons the witnesses should be labelled as unworthy of credit is not a submission which can be accepted. Even assuming that the evidence of a witness is not accepted with respect to a particular portion of the incident, that does not mean that his evidence has to be totally discarded. It is by now well settled that the principle of 'falsus in uno, falsus in omnibus' is not applicable in India. The law as laid down Crl. Appeal No.282/2011 37 by the Apex Court in a series of decisions is to the effect that there is no harm or there is no impediment in the court accepting a portion of the evidence of a witness even though in some other portions, it may be found that he is speaking falsehood.

41. As far as PW1 is concerned, it has already been observed that her evidence is in tune with Ext.P1, First Information statement. As regards the evidence of PWs 2, 6, 18 and 22 are concerned, this Court has noticed that the defence was unable to bring out any major contradictions or inconsistencies in their evidence making it vulnerable. The mere fact that the court below has discarded their evidence regarding pelting of stones will not enable the defence to contend for the position that the evidence of all these witnesses should be discarded on the ground that they are prone to speaking falsehood. It could not be said that the pelting of stones was a theory developed at the time of evidence for the simple reason that the said act stated to have been committed by the Crl. Appeal No.282/2011 38 second and the third accused finds a place in Ext.P1, First Information Statement.

42. Merely because the evidence furnished by PWs 1, 2, 6, 18 and 22 regarding pelting of stones has not been accepted by the court below and even assuming it to be not supported by evidence, that does not lead to the irresistible conclusion that they are speaking falsehood and their evidence should be rejected as a whole. The first contention has therefore necessary to fail.

43. Coming to the second contention that Ext.P1 cannot be treated as the First Information Statement, that too is without merits. It is true that coming to know the incident, the Police had come to the spot and they also made arrangements for scene guarding. The information then received can only be a vague one and it must be noticed that within three hours of the incident, PW1 has laid Ext.P1, First Information Statement containing a full account of what had Crl. Appeal No.282/2011 39 transpired at the place of incident.

44. The contention taken is that had the Police shown diligence at the time when they visited first and arranged scene guard, they could have collected all the necessary informations and registered a crime. It is no doubt true that it is possible to say that the commission of a cognizable offence might have been made out as per the information received by the Police. But it is far from saying that the crime should have been registered from such an information. If the Police had no details of the incident or if they did not show the diligence to collect it from the available witnesses, that fact by itself is not sufficient to justify a conclusion that there was deliberate delay in lodging the First Information Report. No ulterior motive or oblique reasons are seen proved or established or even suggested to PW1 for delaying the lodging of First Information Report.

45. The fact that Vasudevan died as a result of the stab injuries cannot be disputed. It will be too much Crl. Appeal No.282/2011 40 to presume that PW1, his wife would simply implicate the first accused and let the real culprit escape. As already stated, the defence was unable to shake the creditworthiness of the evidence given by PWs 1, 2, 6, 18 and 22 by any known legal methods. Of course, with respect to one of the witnesses, a contradiction had been brought with reference to statement under Section 161 Cr.P.C. But that is an insignificant contradiction. The substratum of their evidence remain untouched. The other allegation is that they are interested witnesses.

46. Even assuming PWs 1 and 2 are related and thus may be interested, the evidence of PWs 6, 18 and 22 cannot be brought under that category. Even as regards PWs 1 and 2, it is not the law that because they are related to the victim, their evidence should be discarded. In the decisions in Natthu and others vs. State of Uttar Pradesh (AIR 1977 SC 2096) and in Pulicherla Nagaraju alias Nagaraja Reddy vs. State of Andhra Pradesh (AIR 2006 SC 3010) the above Crl. Appeal No.282/2011 41 aspect is considered in detail. The law seems to be well settled in this regard. In such type of cases where related witnesses figure as witnesses for the prosecution, the courts have been cautioned to assess and analyse the evidence with absolute care and caution and to ensure that their evidence is above board. It is only natural and usual that cases take place near the house of the victim or inside the house of the victim. The natural and usual witnesses can only be the inmates of the house. In the case on hand, the incident had taken place on a road and it is significant to notice that the act of accused is spoken to by PWs 6, 18 and 22 also, who happened to be the neighbours of both the accused as well as the victim.

47. One must remember that PW1 is none other than the wife of the victim and going by her evidence, the incident had taken place in front of her or she happened to see the incident directly. As already noticed, it will be imprudent on the part of this Court to presume that she will be interested in falsely implicating a Crl. Appeal No.282/2011 42 person for murdering her husband.

48. It seems that the lower court has placed reliance on the recovery of M.O.1 weapon which is strongly assailed by the appellant before this Court. The prosecution evidence is to the effect that after stabbing the victim while the first accused was standing with the knife, the third accused is said to have wrested the knife from his hand and then hidden the same after the incident.

49. It is not in dispute before this Court that the recovery of weapon was made at the instance of the third accused and the learned counsel for the appellant may be justified in his submission that such a recovery cannot be linked to the act committed by the first accused even assuming it to be true. In that respect, the lower court might have erred in law. Even assuming that the evidence regarding recovery is eschewed, it could not be said that there is no evidence to prove the act of the first accused. Except for the reasons stated by the learned Crl. Appeal No.282/2011 43 counsel for the appellant and which has already been discussed and found against, there is no other reason to show that statements made by PWs 1, 2, 6, 18 and 22 are false. It is not the law that in every case the weapon has to be recovered and it has to be shown that the accused was in possession of the same after the incident.

50. It is significant here to notice that the doctors, who had examined the victim are uniform and consistent in their version that the weapon showed to them, which is the one seized during the investigation, is capable of causing the injuries noticed by them. Added to this is the fact that in Ext.P27, the chemical analysis report blood stains were noticed on the knife.

51. Even accepting the decision in Raghuvir Singh vs. State of U.P and another (2015 KHC 3373) regarding recovery as per Section 27 of Indian Evidence Act, holding that, that cannot be linked to the first accused, there are other sufficient materials to come to the conclusion that there is no justification for PWs 1, 2, Crl. Appeal No.282/2011 44 6, 18 and 22 to speak falsehood to falsely implicate the accused. For the reasons already stated, their evidence stand scrutiny and there is no reason to discard their evidence.

52. Faced with the above situation, learned counsel for the appellant contended that the plea of private defence available to the accused on the materials on record has not been considered. Relying on the remand report furnished by PW24, it is contended that the report discloses that soon after the incident, the accused was found undergoing treatment in a hospital where surveillance was imposed.

53. Learned counsel for the appellant, relying on the decision in Udaykumar Pandharinath Jadhav @ Munna vs. State of Maharashtra (2008 KHC 4594), pointed out that it is not necessary for the accused to specifically set up a case of private defence and it is sufficient if he is able show from the prosecution evidence itself that he is entitled to the said exemption. Labouring Crl. Appeal No.282/2011 45 on this aspect, learned counsel went on to point out that the prosecution was duty bound to explain the injuries found on the hands of the accused and having failed to do so, it is evident that they are suppressing the real incident.

54. Though the argument may look attractive at the first blush, it has to be rejected for more reasons than one. It is interesting to note that the accused himself did not have a case that he had suffered injuries in the incident. Not even a suggestion was put to any of the witnesses that the accused suffered injuries in the incident or that there was aggressiveness from the side of the victim which prompted the accused to act in the manner in which he did.

55. The appellant has produced certain documents at the appellate stage requesting this Court to receive them as additional evidence under Section 391 of Cr.P.C. at the time of evidence. It is no doubt true that the court is empowered to receive those items as Crl. Appeal No.282/2011 46 evidence. But we find that, that will not improve the case of the accused. Those documents, we make it clear that, even though have not been admitted evidence, show that the incident spoken to by the accused is altogether a different one and has no connection with the incident in question. But, unfortunately for the accused, the Investigating Officer in the said case has filed a refer report and in the refer report, it is mentioned that the allegations contained in the complaint made by the accused in the said case, are totally false and the accused in this case had suffered injuries to his hands while the third accused wrested the knife from him as spoken to by PW18.

56. Apart from the fact that there was not even a remote suggestion to PWs 1, 2, 6, 18 and 22, it is surprising to note even to the Investigating Officer that there were no attempt to show that the accused was apprehensive of any violent act at the hands of the victim. There is absolutely no materials inherent in the Crl. Appeal No.282/2011 47 prosecution evidence to warrant a conclusion that the accused had acted in a private defence.

57. Finally, it is contended that at any rate, the act could fall only under Section 304 of IPC and the act will not constitute an offence under Section 302 of IPC. Unfortunately, we are unable to accept the said contention. It is not a case of an unintended injury that was inflicted. But that the injuries were inflicted with prior determination and it is not a single injury that was inflicted. There were as many as four stab injuries all on the abdomen of the victim. Abdomen is a sensitive part of the body and the nature of injuries as could be discerned from the post-mortem report as well as the evidence of PWs 3 and 26, are deep and penetrative injuries and both the doctors say that all the injuries are sufficient in the ordinary course of nature to cause death. It could not therefore be contended that the accused had no intention to cause the death of the victim. At any rate, he should be credited with sufficient knowledge that such Crl. Appeal No.282/2011 48 injuries as inflicted by him are sufficient in the ordinary course of nature to cause death falling within the ambit of clause (iv) of Section 300 IPC by any means.

For the above reasons, we find no merit in this appeal and we confirm the conviction and sentence passed by the court below as against the first accused. This appeal is without merits and it is accordingly dismissed.

P.BHAVADASAN JUDGE RAJA VIJAYARAGHAVAN V JUDGE smp

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