Kerala High Court
Rahim vs State Of Kerala on 20 December, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
CRL.A NO. 557 OF 2018 2024:KER:97076
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 20TH DAY OF DECEMBER 2024 / 29TH AGRAHAYANA, 1946
CRL.A NO. 557 OF 2018
AGAINST THE JUDGMENT DATED 27.03.2018 IN SC NO.938 OF
2016 OF ADDITIONAL SESSIONS JUDGE - II, NORTH PARAVUR
APPELLANT/ACCUSED:
RAHIM
AGED 48 YEARS, S/O.HANEEFA,
THOPPILPARAMBU (H), VEDIMARA BAGHOM,
PARUTHARA KARA, PARAVUR VILLAGE
BY ADV T.R.KRISHNADAS THACHAPILLIL RAMADAS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
THROUGH CIRCLE INSPECTOR OF POLICE,
NORTH PARAVUR, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682031
BY SRI. ALEX M. THOMBRA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
20.12.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A. No. 557 OF 2018 2 2024:KER:97076
JUDGMENT "C.R."
Jobin Sebastian, J.
The sole accused in S.C. No.938/2016 on the file of the Additional Sessions Court -II, North Paravur, has preferred this appeal challenging the judgment of conviction and the order of sentence passed against him for the offence punishable under Section 302 of the Indian Penal Code. The prosecution case in brief is as follows:-
2. The deceased Basheer and the accused are siblings. The accused and his wife had a strained relationship due to the harassment and ill treatment of the accused. Their relationship deteriorated further when the accused molested their mentally retarded daughter.
Consequently, the accused's wife started to reside separately with her children. Thereafter, the accused started to reside in the ancestral house where the deceased Basheer and their mother lived. The accused was in the habit of picking up quarrels with the deceased Basheer. Moreover, the accused harbored a grudge against Basheer as he questioned the Crl.A. No. 557 OF 2018 3 2024:KER:97076 accused on knowing that the accused molested his own daughter. While so, on 26.06.2014, Basheer, after locking the house, went to watch World Cup football match on a screen exhibited at Vedimara. Thereafter, at approximately 8.30 p.m., the accused kicked open the door since it was locked and entered the house. When Basheer came back in the late night after watching the football match, the accused questioned him about locking the door and a wordy altercation ensued between them. Thereafter, the accused fisted the forehead of the deceased, with a ring on his finger. The accused then stabbed on the left chest of Basheer using scissors, causing fatal injury. Basheer succumbed to the said injury. Hence the accused is alleged to have committed the offence punishable under Section 302 of the IPC.
3. On completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court, North Paravur. Being satisfied that the case was one triable exclusively by the Court of Session, the learned Magistrate after complying with all the necessary formalities committed the case to the Court of Session, Ernakulam under Crl.A. No. 557 OF 2018 4 2024:KER:97076 Section 209 of the Criminal Procedure Code. After taking cognizance, the learned Sessions Judge made over the case for trial and disposal to Additional Sessions Court-II, North Paravur.
4. In order to bring home the guilt of the accused the prosecution has altogether examined 21 witnesses as PW1 to PW21. Exts.P1 to P28 were exhibited and marked, and MO1 to MO10 were produced and identified. After completion of prosecution evidence, when the accused was questioned under Section 313 of the Cr.P.C., he denied all the incriminating materials brought out against him in evidence. On finding that the accused could not be acquitted under Section 232 of the Cr.P.C., he was called upon to enter his evidence. From the side of the accused D1 to D7 were marked.
5. After trial, the accused was found guilty for the offence punishable under Section 302 of the IPC and convicted and he was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) with a default clause to Crl.A. No. 557 OF 2018 5 2024:KER:97076 undergo rigorous imprisonment for six months. The said judgment of conviction and order of sentence is under challenge in this appeal.
6. It is a case of fratricide. The law was set in motion in this case on the strength of the First Information Statement given by the brother of the deceased, who is also the brother of the accused. As this case lacks direct evidence, the prosecution is relying on circumstantial evidence to prove the charge levelled against the accused.
7. When the brother of the deceased, who lodged FIS in this case was examined as PW1, he deposed as follows:-
The deceased resided with their mother in their ancestral house at a place called Vedimara. Two months prior to the incident in this case, the accused also started residing in the said house. On 27.06.2014, at around 6.30 a.m., her sister Sajeena contacted him over the phone and informed him that their brother Basheer, the deceased, was found lying motionless inside the said house. Sajeena requested him to come to the ancestral house immediately. Upon receiving this information, he rushed to the Crl.A. No. 557 OF 2018 6 2024:KER:97076 ancestral house and found Basheer lying motionless on the floor. Then he informed the matter to the neighbours. When he reached there, his brother Rahim, the accused in this case, was also there. With the help of the neighbours, he took Basheer and laid him on a cot. He noticed injuries on Baheer's head and chest. On the alleged date of the incident, his mother was not in the said house, but the accused was there. He asked the accused, if he had done anything, to which the accused replied "will I do such a thing, he is my blood". The accused used to quarrel with the deceased regularly after drinking liquor that is why PW1 asked the accused so. Thereafter, he went to North Paravur Police Station and gave a statement. Ext. P1 is the said statement. The deceased in this case has wife and two children. They were residing separately. The accused has two wives and four children, having married his second wife after divorcing the first. The accused was not on good terms with the second wife, and one of their children, a daughter was mentally retarded. During cross-examination, PW1 testified that there are several houses near their ancestral home. According to him, he reached the ancestral house at 7.30 Crl.A. No. 557 OF 2018 7 2024:KER:97076 a.m., and spent two and a half hours there before going to the police station to give the statement. His deceased brother was found wearing pants, a shirt, and a banian. The deceased was found lying supine on the floor in the front room of the house, which is the entrance portion.
8. When the cousin of the deceased, as well as that of the accused, was examined as PW2, he deposed that he witnessed police preparing the inquest report after examining the body of the deceased. According to PW2, he is also a signatory in Ext.P2 inquest report.
9. When the sister of the deceased was examined as PW3, she testified that the deceased resided in their ancestral property along with their mother. During the period of occurrence in this case, the accused was also residing in the same house and he started to reside there, just two months prior to the incident in this case. Previously, the accused was residing at Kodungalloor. The accused used to make frequent quarrels with his wife after drinking liquor. The accused was in the habit of quarreling with everyone. In the early morning of the alleged date of the Crl.A. No. 557 OF 2018 8 2024:KER:97076 incident, the accused came to her house and informed that, the deceased was lying motionless and had died. He asked her to come quickly. Afraid upon hearing this, she contacted PW1, her another brother. She informed the accused that she would come only when PW1 arrived. Thereafter, PW1, arrived and when they entered the ancestral house, the deceased was found lying motionless in the hall room. Then she raised alarm and neighbours came. The accused was also present in the said house. An injury was found on the head of the deceased. Somebody then jointly lifted the deceased and laid on a cot. When his dress was partially removed an injury was found on his chest. The shirt, pants, and banian worn by the deceased were identified by PW3 before the Court and marked as MO1 to MO3 respectively.
10. When the wife of the deceased was examined as PW4, she deposed that, the accused is her husband's brother. Her marriage with the deceased was solemenised 20 years ago, and they have two children. After their marriage, for approximately 18 years, she resided with the deceased in the ancestral house at Vedimara. However, whenever the Crl.A. No. 557 OF 2018 9 2024:KER:97076 accused visited the said house, he would create quarrels. She used to leave the house and go to her paternal home whenever the accused came to visit. The accused used to ill-treat and misbehave towards her and that is why she avoided staying in the ancestral house when the accused was present. Previously, the accused stabbed the deceased with a knife, during a visit to the ancestral house. Though she insisted on filing a complaint, the mother of the accused asked her to condone the incident and advised her to desist from filing any complaint. The wife of the deceased was residing at Kodungalloor and she was having a very cordial relationship with her. One of the children of the accused was mentally retarded. The wife of the accused told PW4 that the accused was in a habit of ill-treating and abusing her and her children. Moreover, the wife of the accused told PW4 that, on one occasion, the accused misbehaved towards her mentally retarded daughter in a manner that a father would never do. According to PW4, for the last two years of the incident, she was residing in her house, as the accused constantly created problems in the ancestral house. A few days before the incident in this case, the Crl.A. No. 557 OF 2018 10 2024:KER:97076 accused and her deceased husband Basheer entered into a wordy altercation when the deceased confronted the accused about his misbehaviour towards his daughter.
11. When an independent witness was examined as PW5, he deposed that he was a neighbour of the deceased, Bahseer. The accused is the brother of the deceased. PW5 is a cattle slaughterer. He used to wake up during midnight for slaughtering cattle. On 27.06.2014, between 12.00 midnight and 1.00 a.m., he woke up from sleep to go for his work. When he woke up, somebody knocked at the door. When he opened the door, he found the accused standing there. Then the accused told him that "ഞാൻ ബഷീറിനെ കുത്തിയിട്ടുണ്ട്. ഒന്ന് വന്ന് നോക്കണം. ഹോസ്പിറ്റലിൽ കൊണ്ടുപോകണം." Then he accompanied the accused to the house of the deceased. Thereafter, PW5 returned to his house and after wearing a shirt he went to the autostand at Kacherimukku on his bike along with the accused. Thereafter, he dropped the accused in the said auto stand and told the accused to call an autorickshaw and go to his house, and further informed the accused that he would come along with his workers. Then Crl.A. No. 557 OF 2018 11 2024:KER:97076 PW5 went to call his workers. On the way, he found the Secretary of the Juma Masjid and disclosed about the incident. Then the Secretary said that such incidents are usual in the house of the accused and advised him not to interfere in the matter. Hence, he came back to his house on his bike. The accused was then found standing in his ancestral house. Thereafter, he went to work. When he informed about the incident to his workers, they also advised him to continue work and not to interfere in the matter of the accused. After a short while, his wife telephoned him and informed that Basheer had died.
12. Another independent witness, PW6, deposed that he had acquaintance with the deceased and the accused in this case, who are siblings. On the evening prior to the incident, between 8.30 p.m and 9.00 p.m., he met Basheer, the deceased in this case, in front of his house. Then the deceased told him that "My elder brother has come. If anything happens to me, you must tell my mother that Rahim (accused) is responsible for the same". Then he asked the deceased where he was going. Then he said that he was going to watch a football match. On the Crl.A. No. 557 OF 2018 12 2024:KER:97076 next day, he learned about the deceased's death and went to the deceased's house, where he met Salim, another brother of the deceased. Then he disclosed the matters said by the deceased to him on the previous day. He saw someone handing over the dress worn by the deceased at the time of the incident to the police and he identified MO1 to MO3. Thereafter, he saw the accused taking scissors from underneath a sheet spread inside a kitchen almirah and handing over the same to the Police. The police recovered the said scissors by describing it in a mahazar and he is also a signatory to the said mahazar. Ext.P6 is the said mahazar and MO4 is the scissors so recovered by the Police.
13. PW7 the brother-in-law of PW1 testified as follows:-
He arrived at the scene between 7.00 a.m. and 8.00 a.m., on 27.06.2014 and he found the deceased Basheer lying motionless on the floor with his head upwards. PW7 felt that Basheer had passed away. For performing obituary rituals, he arranged some neighbours, and together they lifted the Basheer from the floor and laid him on a cot. As per their Crl.A. No. 557 OF 2018 13 2024:KER:97076 religious customs, it was necessary to remove the deceased's clothing and dress him in new white attire. Hence in order to remove the clothing, he cut a small portion of the shirt worn by the deceased by using a blade.
When the shirt was partially cut and removed he found a serious stab injury on the chest of the deceased. Therefore, he did not remove the shirt fully. The deceased was also wearing pants.
14. PW8, the mother of the deceased testified that both the deceased and the accused are her sons. For the last several years, she was residing in the ancestral house with the deceased. The accused used to visit the said house occasionally in an inebriated mood and used to threaten them that he would kill her as well as the deceased. The deceased's wife was also residing in the said house earlier. Thereafter, afraid of the accused, she left the said house and started to reside separately. PW8 further deposed that both she and the deceased were afraid of the accused and even the presence of the accused frightened her. Two months prior to the incident in this case, the accused started to reside in the ancestral house and one month prior to the incident the Crl.A. No. 557 OF 2018 14 2024:KER:97076 accused threatened to kill the deceased. Two months prior to the incident in this case, the accused fisted on the nose of the deceased which resulted in bleeding from the nose. On the alleged date of the incident, at around 8.00 p.m., while she was at PW1's house, the deceased in this case telephoned her and informed her that the accused was not in the house, but he was going to watch football match after locking the house. Then she told him to go after leaving the doors open.
15. PW9 is an attester to a recovery mahazar. According to PW9, on 27.06.2012, at 3.00 p.m., he went to the house of the deceased and he saw the accused taking steel scissors from underneath a flex sheet spread on the top of an almirah in the kitchen of the deceased's house and handing over the same to the police. PW9 identified the said scissors as MO4. He also identified his signature in the recovery mahazar which is marked as Ext.P6.
16. When the first wife of the accused was examined as PW14, she deposed that after their marriage they resided together in the accused's Crl.A. No. 557 OF 2018 15 2024:KER:97076 ancestral house for a few days. Later a separate house was constructed and they moved there together. However, for the past 15 years, she has been living separately, with her mentally challenged daughter. The accused has not been residing with her for the past 5 years. During their joint lives, the accused used to make frequent quarrels with her after drinking liquor. Similarly, on one occasion, he attempted to molest his mentally challenged daughter. When she spotted the accused, he begged for pardon. She informed all these matters to PW4, the wife of the deceased.
17. The Doctor who conducted the autopsy examination on the body of the deceased was examined as PW16. According to him, on 28.06.2014, while he was working as District Police Surgeon, Ernakulam, he conducted post-mortem examination on the body of the deceased in this case and issued Ext.P10 post-mortem certificate. Referring to Ext.P10, PW16 deposed that he had noted the following antemortem injuries on the body of the deceased:-
"1. A vertical, gapping, stab wound, 1.5 cm x 0.5 cm x chest Crl.A. No. 557 OF 2018 16 2024:KER:97076 cavity deep was present on the front of left side of the chest. It was at 10 o'clock position from the left nipple, upper margin was 21 cm below the tip of left shoulder, the inner margin was 6 cm outer to the midline. The upper margin showed hilt marks. On dissection, the wound was directed downwards and inwards, piercing the muscle between left 5th and 6th ribs and entering the chest cavity. The wound had perforated the pericardium and then punctured the wall of the left vertical of heart. The chest cavity contained one litre of blood.
2. Contusion 3 x 1 cm over Adam's apple. On performing flap dissection of neck under bloodless field, there was infiltration of blood in the deep tissue. All midline structures of neck including hyoid bone, thyroid and cricoid cartilage were normal.
3. Right eye was black and incorporated an abrasion, extending to the bridge of nose.
4. Contused abrasions 4 x (0.5-1) cm, horizontally placed on the forehead crossing midline.
5. Abraded contusion 6 x 4 cm on the inner aspect of right elbow.
6. An obliquely placed slash on the outer aspect of right chest, 14 cm below the axilla.
7. Abrasion 0.5 x 0.5 cm on the knuckle of the right index finger.
Crl.A. No. 557 OF 2018 17 2024:KER:97076
8. Contused abrasion 12.5 x 10 cm on the back of left elbow and arm.
9. Multiple (10) spotted abrasions measuring 0.1 x 0.1 cm over and area 4 x 3 cm on inner aspect of left forearm, 14 cm above the wrist joint.
10. Contusion 3 x 0.5 cm on the inner aspect of left forearm, 13 cm below elbow joint.
11. Contusion 1 x 0.5 cm on inner aspect of left forearm, 5 cm above left wrist.
12. Multiple (6) contusions, the biggest measuring 3 x 1 cm over an area 7 x 5 cm on the back of right shoulder."
18. Referring to Ext.P10 post-mortem certificate, PW16 opined that the cause of death was the stab injury noted on the chest, which penetrated the heart. According to him, the said stab injury, described as injury No.1 in Ext.P10 post-mortem certificate, is sufficient in the ordinary course of nature to cause death. When confronted with MO4 scissors, after verifying the same, PW16 deposed that injury No.1 and 6 could be caused by using a weapon like MO4. Similarly, he opined that injury No. 4 can be caused by a blow with a fist specifically with a ring on the finger.
Crl.A. No. 557 OF 2018 18 2024:KER:97076
19. The Sub Inspector of Police, who recorded the FIS given by PW1 and registered the case was examined as PW17. According to him, the FIR was originally registered under Section 174 of the Code of Criminal Procedure as unnatural death. Ext.P11 is the FIR registered by him. He further deposed that 27.06.2014, at about 11.30 a.m., he visited the scene of occurrence and conducted an inquest on the body of the deceased. The inquest report is marked as Ext.P2.
20. The Circle Inspector of Police, who conducted the investigation in this case was examined as PW20. According to him, as part of the investigation, on 27.06.2014, he visited the house where the incident in this case occurred and prepared a scene mahazar. The scene of occurrence, in this case, is the front room of a house bearing No.10/200 of North Paravur Municipality situated at Vedimara. Ext.P8 is the scene mahazar so prepared. According to PW20, he found the hinges on the inner upper side of the front door of the said room damaged. Thereafter, he filed a report before the jurisdictional Magistrate by adding 302 of the IPC and deleting Crl.A. No. 557 OF 2018 19 2024:KER:97076 Section 174 of the Cr.P.C. On 27.06.2014, at 4.30 p.m., he arrested the accused from the house where the incident occurred. On interrogation, the accused had given a disclosure statement and on the strength of the same, and as led by the accused, he again reached the house where the incident occurred. Thereafter, the accused took scissors from underneath a sheet spread on the second rack of the concrete almirah on the kitchen wall of the said house and handed over to him. He recovered the said scissors in the presence of independent witnesses as per Ext.P6 mahazar. The relevant portion in the confession statement given by the accused and noted in Ext.P6 mahazar and proved through PW20 is marked as Ext.P6(a). MO4 is the scissors so recovered. According to PW20, a ring found on one of the fingers of the accused was also recovered on 27.06.2014 at 7.00 p.m., at his office after describing it in Ext.P12 mahazar. MO7 is the said ring. The shirt and dhoti worn by the accused at the time of the commission of the offence were also seized after providing the accused with another dress. The mahazar by which the said dress materials were seized was marked as Ext.P13. The said shirt and dhoti were identified and marked as MO8 and Crl.A. No. 557 OF 2018 20 2024:KER:97076 MO9 respectively. The thondi articles recovered in this case were duly produced before the court along with a forwarding note. As part of the investigation, he interrogated the witnesses and recorded their statements.
21. The Circle Inspector of Police, who conducted the further part of the investigation in this case and submitted the final report was examined as PW21. The chemical analysis report received after the examination of the material objects in this case was marked as Ext.P28 through PW21.
22. As already stated, this is a case built upon circumstantial evidence. The evidence of PW1 and other prosecution witnesses who allegedly gathered at the scene of occurrence upon knowing about the incident, reveal that, upon arrival, they found the deceased lying motionless in the hall room of the said house. Their evidence collectively shows that, after reaching the said house they took the deceased and laid him on a cot and then they saw a stab injury on his chest and another injury on his head. A conjoint reading of the evidence of the said witnesses and the Crl.A. No. 557 OF 2018 21 2024:KER:97076 evidence of the Doctor (PW16), who conducted autopsy examination of the body of the deceased along with Ext.P10 post-mortem certificate conclusively establishes that the death of Basheer, the deceased in this case, was certainly and undoubtedly a homicidal one. The evidence of the Doctor shows that he had noted 12 ante-mortem injuries in the post-mortem examination and he consistently testified that, the fatal injury was the one sustained on the deceased's chest and the same could be inflicted by using a weapon like MO4 scissors.
23. The pivotal question that now arises is who perpetrated the offence. While considering the said question, this case being one built upon circumstantial evidence, each and every circumstance relied on by the prosecution has to be meticulously scrutinised. Before entering into a discussion regarding the circumstances relied on by the prosecution, it is essential to revisit the fundamental principles and guidelines that govern the evaluation of circumstantial evidence.
24. In Sarad Birdhichand Sarda v. State of Maharashtra Crl.A. No. 557 OF 2018 22 2024:KER:97076 [AIR 1984 SC 1622] the Hon'ble Apex Court discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under:
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) The circumstances should be of a conclusive nature and tendency;
(iv) They should exclude every possible hypothesis except the one to be proved; and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.
25. Now by a series of judicial pronouncements, it is well established that, the circumstances, when taken cumulatively, must form a complete and unbroken chain, with no missing links. Furthermore, it must be conclusively proven, to the extent of all human probability, that the crime was committed by the accused, and by no one else. In other words, the circumstantial evidence should not only Crl.A. No. 557 OF 2018 23 2024:KER:97076 be consistent with the guilt of the accused but should be inconsistent with his innocence.
26. Keeping in mind the above principles of law regarding the appreciation of circumstantial evidence, it is to be noted that, the first circumstance relied on by the prosecution in the case on hand is that the accused had a strong motive to kill the deceased. The motive alleged is that the accused had previously molested his own mentally retarded child and on knowing about the same, the deceased questioned the accused and there occurred a quarrel between them. Consequently, the accused harbored a grudge against the deceased. To establish this motive, the prosecution relies primarily on the testimonies of PW14, the accused's wife, and PW4, the deceased's wife. During examination before Court, PW14 testified that she had three children in the wedlock with the accused including a mentally retarded daughter. On one occasion the accused, who was intoxicated attempted to molest her mentally retarded daughter and she informed Crl.A. No. 557 OF 2018 24 2024:KER:97076 the said incident to PW4, the deceased's wife. When the wife of the deceased was examined as PW4, she also deposed that PW14 had informed her about the said incident and she subsequently, conveyed the same to her husband, the deceased in this case. According to PW4, the deceased then confronted the accused about the alleged molestation leading to a quarrel between them. PW4 further deposed that the deceased told her that the accused had been harboring a grudge against him since then. The above evidence of PW14 and PW4 will clearly establish the motive behind the commission of the offence. The proof of motive would no doubt go a long way in cases wholly dependent on circumstantial evidence. The evidence regarding the proof of motive would form one of the links in the chain of circumstantial evidence in this case.
27. Moreover, when the mother of the deceased was examined as PW8, she was also consistent on the stand that the accused was a troublemaker, who frequently picked quarrels with Crl.A. No. 557 OF 2018 25 2024:KER:97076 everyone after consuming liquor. PW8 had gone to the extent of deposing that, she and the deceased feared the accused, as he would often arrive intoxicated and threaten to kill them. According to PW8, even the accused's presence was enough to frighten her. Notably, out of the witnesses examined from the side of the prosecution, six witnesses are close relatives of both the accused and the deceased. All these witnesses including the mother, sister, and wife of the accused consistently testified that the accused created chaos in their family. However, we are not oblivious of the law that the previous bad character of the accused holds little significance as far as a criminal case is concerned.
28. PW8, the mother of the accused during the examination before the court, stated about an incident that occurred two months prior to the death of his son Basheer wherein the accused had fisted on the nose of Basheer causing bleeding from his nose. Similarly when PW4, the wife of the deceased was examined, she deposed that prior to Crl.A. No. 557 OF 2018 26 2024:KER:97076 the incident in this case, on another occasion, the accused stabbed the deceased using a knife. After the said incident, though she asked the accused to file a complaint, PW8, the mother of the accused intervened and advised to condone the same. The evidence of PW8 and PW4 regarding these previous two incidents remains unchallenged in the cross-examination. Moreover, PW8 is none other than the mother of the accused. Therefore, it is unlikely that she would falsely testify against the accused. Of course, the above-said previous incidents established by the uncontroverted oral evidence of PW4 and PW8 reiterated the case of the prosecution that the accused was nurturing an animosity towards the deceased. Therefore, we have no hesitation in holding that the prosecution has fully succeeded in proving the motive alleged in this case. Furthermore, the accused's previous attacks on the deceased are relevant under Section 14 of the Indian Evidence Act, as they demonstrate the accused's state of mind and criminal intentions.
29. Another crucial piece of evidence relied upon by the Crl.A. No. 557 OF 2018 27 2024:KER:97076 prosecution is the testimony of PW5, a neighbour of the deceased. PW5 deposed that on the alleged date of the incident at midnight when he woke up, somebody knocked on the door of his house and when he opened the door, he found the accused standing there. Then the accused told him that, "ഞാൻ ബഷീറിനെ കുത്തിയിട്ടുണ്ട്, ഒന്ന് വന്നു നോക്കണം, ഹോസ്പിറ്റലിൽ കൊണ്ട് പോകണം "(I stabbed Basheer, come and see, he must be taken to the hospital)". According to PW5, then he, accompanied by the accused, went to the residence of Badheer and found him lying injured inside the said house. The above-mentioned statement made by the accused to PW5 will come within the sweep of an extrajudicial confession, as the same is inculpatory in nature and admitting the guilt of the accused. The said extra judicial confession will lend sufficient assurance to the charge levelled against him.
30. Generally, an extrajudicial confession is considered to be a weak piece of evidence, and on the sole basis of the same, a conviction cannot be entered upon. However, there is no inflexible or Crl.A. No. 557 OF 2018 28 2024:KER:97076 rigid rule that an extrajudicial confession can be relied upon only if the same is corroborated by other credible evidence. If the witness who speaks to it appears truthful and unbiased, has no motive for attributing an untruthful statement to the accused, and the words spoken are clear and unmistakably show that the accused is the offender and if it passes the test of credibility, an extrajudicial confession can form the basis of conviction.
31. Considering the facts and circumstances of the case it is evident that the accused's statement, which constitutes an extrajudicial confession, was made voluntarily to PW5, his neighbour, after arriving at PW5's courtyard. In his statement, the accused explicitly admitted that he stabbed the deceased. Furthermore, his suggestion that, the injured person should be taken to the hospital indicates that, his intention was to disclose the incident to PW5 and thereby to seek medical attention for the deceased. The evidence provided by PW5 and the nature of the accused's statement suggests that it was given voluntarily without any Crl.A. No. 557 OF 2018 29 2024:KER:97076 coercion, manipulation, or prompting. Therefore, we find no reason to doubt the authenticity of the extrajudicial confession.
32. Another significant aspect is that, the accused has not alleged that PW5 harbors any animosity towards him or has any motive to falsely implicate him in this case. Since PW5 has no apparent score to settle with the accused, we find no reason to disregard his testimony that the accused made the incriminating statement to him immediately after the incident. The value of an extrajudicial confession depends on the trustworthiness of the witness to whom the confession is made. In this case, PW5 appears to be a trustworthy witness particularly since no motive to implicate the accused in a heinous murder case has been attributed to him.
33. The learned counsel for the appellant assailed the said extrajudicial confession mainly on the ground that, at the time when PW5 had given a statement to PW17, the Sub Inspector of Police, Paravur Police Station, at the time of the inquest, PW5 had not Crl.A. No. 557 OF 2018 30 2024:KER:97076 mentioned about the confession made to him by the accused. We do agree that from the evidence it is established that PW5 had not mentioned, about the said confession statement given by the accused, in his previous statement recorded in column No.X of Ext.P2 inquest report.
34. However, we cannot agree with the appellant's counsel's contention that this omission is significant. The purpose of an inquest is to determine the apparent cause of death, which involves meticulously verifying wounds, fractures, and other marks of injury on the body, to ascertain the manner, weapon, or instrument used to inflict them. The primary concern of the officer conducting an inquest is the appearance and nature of the injuries. In this context, the omissions in the witnesses' statements recorded during the inquest and incorporated with the inquest report have no much significance. Inquests typically do not include detailed recordings of witness statements. Therefore, we are of the view that the contention raised by the learned counsel for the Crl.A. No. 557 OF 2018 31 2024:KER:97076 appellant citing the omission made by PW5 to mention to PW17 about the accused's confession holds no significance.
35. In Podda Narayana and others v. State of Andhra Pradesh reported in [AIR 1975 SC 1252], the Hon'ble Supreme Court held as follows:-
"A perusal of this provision would clearly show that the object or the proceedings under S. 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under S.
174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report."
A similar view has been taken by the Hon'ble Supreme Court in Brahm Swaroop and Another v. State of Uttar Pradesh reported in [(2011) 6 SCC 288], it was held as follows:-
"For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death. The object of the proceedings Crl.A. No. 557 OF 2018 32 2024:KER:97076 under Section 174 Cr.PC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. The question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned."
36. At the time of preparing an inquest report, the primary concern of the Officer who prepares it, is not to identify the perpetrator of the offence. On the other hand, his main concern is regarding the nature of injuries. We have already stated that the purpose of an inquest is to determine the apparent cause of death and the question of who committed the offence is foreign to this inquiry. When PW5 was confronted with the omission regarding the extrajudicial confession in his statement, he maintained that he had stated about the confession made by the accused at the time of the inquest. We have also found that there is no evidence to suggest that PW5 harbors any animosity or motive to falsely implicate the accused in this murder case. There is no material to indicate that PW5 is not an unbiased witness. He narrated the accused's confession statement in Crl.A. No. 557 OF 2018 33 2024:KER:97076 clear and unequivocal words which unmistakably conveyed that the accused has committed the offence in question. Any omission or discrepancy in his statement recorded during the inquest is inconsequential and liable to be discarded.
37. Another important piece of evidence relied on by the prosecution to prove the guilt of the accused is the recovery of MO4 scissors which is the alleged weapon of offence in this case. The evidence of the Investigating Officer reveals that the accused was arrested in this case on 27.06.2014 at 4.30 p.m., from the house where the incident in this case occurred. Thereafter, on interrogation, the accused had given a disclosure statement and on the strength of the said statement, the Investigating Officer reached the residence of the deceased along with the accused. Thereafter, the accused took scissors from underneath a sheet spread on the second rack of the concrete almirah on the kitchen wall of the said house and handed over to the Investigating Officer and he took the same into custody after describing it in Ext.P6 recovery mahazar. The relevant portion of the confession statement Crl.A. No. 557 OF 2018 34 2024:KER:97076 which led to the recovery of MO4 scissors recorded in Ext.P6 mahazar and proved through the Investigating Officer is separately marked in evidence as Ext.P6(a). The independent witnesses to the recovery also supported the case of the prosecution regarding the recovery of MO4 scissors and they identified the said scissors as the one taken and handed over by the accused to the Investigating Officer. In short, the recovery of MO4, the weapon of offence, solely on the strength of the disclosure statement given by the accused from a concealed state, will help the prosecution to a large extent. Ext.P6(a), the disclosure statement which led to the recovery of the weapon of offence and proved through the Investigating Officer is admissible in evidence in view of Section 27 of the Indian Evidence Act.
38. Another crucial incriminating circumstance against the accused is the presence of human blood in MO8 shirt and MO9 dhoti which were the clothes worn by the accused at the time of the commission of offence. The evidence that we have already discussed, clearly shows that MO8 and MO9 were duly seized by PW20, the investigating officer, by describing in Ext.P13 Crl.A. No. 557 OF 2018 35 2024:KER:97076 mahazar. The documentary evidence adduced in this case clearly reveals that the said shirt and dhoti were produced before the Court after entering the same in a property list along with Ext.P25 forwarding note. Ext.P28 is the FSL report received after the examination of material objects in this case. A perusal of Ext.P28 report shows that MO9 dhothi, which is shown as item No.5 in the said report, contained human blood and on grouping, it was found to be A group, which is determined to be the blood group of the deceased. Similarly, Ext.P28 report reveals that MO8 shirt also contained human blood, but the blood group could not be ascertained due to inconclusive test results. Similarly, in the serological examination human blood was detected in MO4 scissors shown as item No. 6 in Ext.P28 FSL report. Therefore, the scientific evidence adduced in this case will definitely bloster the case of the prosecution.
39. It is true that when PW6 was examined, he deposed that on the evening prior to the incident in this case, at about 8.30 p.m., while he was standing in front of his house, Basheer, the deceased approached him and Crl.A. No. 557 OF 2018 36 2024:KER:97076 told that "my brother has come, if anything happens to me, you must tell my mother that Rahim is responsible for the same." The Sessions Judge entered into a finding that the said statement is qualified as a dying declaration as it potentially reveals the circumstances surrounding his death. However, we are of the view that, a meticulous analysis of this statement made by the deceased prior to his death is highly essential to determine if it meets the criteria for a dying declaration under Section 32(1) of the Indian Evidence Act. From a bare perusal of the statement, it is apparent that it reflects an apprehension of the deceased. It does not disclose any act of the deceased or circumstances leading to his death. To qualify under Section 32(1) of the Indian Evidence Act, the statement must, relate to the cause of death or the circumstances surrounding the transactions that resulted in death.
40. In our considered opinion the deceased's statement does not meet these criteria, as it only expresses an apprehension without disclosing the cause of death or the circumstances surrounding the transaction. We note that, even statements made before the cause of death had arisen and before Crl.A. No. 557 OF 2018 37 2024:KER:97076 the deceased had reason to anticipate being killed, may be admissible under Section 32(1) of the Indian Evidence Act, if they relate to circumstances with an approximate relation to the actual occurrence.
41. Mere apprehension of being killed is insufficient. The statement must refer to a threat, act, or preparation made by the assailants to attract the provisions of Section 32(1) of the Indian Evidence Act. Therefore, we hold that the deceased's statement which raises an apprehension of being killed without stating the reasons or circumstances for such apprehension does not fall within the scope of Section 32(1) of the Indian Evidence Act.
42. The upshot of the forgoing discussion is that the prosecution has fully succeeded in establishing that the accused had a strong motive to kill the deceased. The extrajudicial confession made to PW5 wherein the accused admitted his guilt significantly contributes to proving his commission of the offence. The impartiality and credibility of PW5, to whom the extrajudicial confession was made remain unchallenged. Even the defence is not having a case that PW5 has any ill-will towards the accused or motive to falsely Crl.A. No. 557 OF 2018 38 2024:KER:97076 implicate the accused in a murder case like this. Both the recovery evidence and scientific evidence provide sufficient corroboration to the prosecution's case. In the light of the evidence, it is inevitable to conclude that the circumstances led by the prosecution to prove the accused's guilt are fully and exhaustively established. The proven circumstances lead inexorably to the conclusion that the accused is guilty, to the exclusion of any other possible explanation including innocence.
43. The act of the accused in inflicting a stab injury on the deceased's chest itself is self-speaking regarding his intention to murder his brother. The nature of the weapon used and the part of the body where the injury was inflicted cannot be undermined while considering the intention which the accused conceived. His act will not come under any of the exceptions provided under Section 300 of the IPC. On the contrary, the evidence demonstrates that the act of the accused falls squarely within the ambit of Section 300 of the IPC, rendering him liable for punishment under Section 302 of the IPC.
Crl.A. No. 557 OF 2018 39 2024:KER:97076 Resultantly, we confirm the finding of guilt, conviction, and sentence passed in S.C. No.938/2016 on the file of the Additional Sessions Court -II, North Paravur, and the appeal stands dismissed.
sd/-
P.B. SURESH KUMAR JUDGE sd/-
JOBIN SEBASTIAN JUDGE DCS/ncd