Johnson John, J
1. The appellant is the sole accused in S.C. No. 1151 of 2017 on the file of the Additional Sessions Judge, IV, Kollam and he is challenging the
conviction and sentence imposed on him for the offence under Section 302 of IPC as per the impugned judgment dated 07.05.2018.
2. The prosecution case is that the brother of the deceased had an illicit relationship with the sister of the accused and even though a child was born in
that relationship, the brother of the deceased avoided the sister of the accused and married another lady and because of that, the accused had previous
enmity towards the deceased. The accused was in custody in another case and when he was released from the jail, the accused along with the
deceased Gopakumar reached the house of PW1 at Poikayil Mukku on 19.09.2016 and while they were staying there, at about 10 p.m. on 20.09.2016,
while the accused and the deceased were consuming liquor, the accused asked PW1 to purchase 3 cigarettes and when PW1 was leaving the house,
he heard the accused and the deceased quarrelling and hence, PW1 came back to the house and saw the accused stabbing on the neck of the
deceased with a broken glass and the deceased, who sustained serious injuries, died on the spot and the accused is thereby alleged to have committed
the offence as aforesaid.
3. On the basis of Exhibit P1 First Information Statement of PW1, PW14 registered Exhibit P12 FIR and thereafter, PW1 5 Circle Inspector
conducted the investigation. PW16 was the Circle Inspector, who completed the investigation and filed the final report before the Judicial First Class
Magistrate-I, Kollam
4. After committal, the case was numbered as S.C. No. 1151 of 2017 and made over to the Additional Sessions Judge IV, Kollam and when the
accused was produced before the trial court, after hearing both sides charge was framed for the offence under Section 302 of IPC and when the
charge was read over and explained to him, he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 16 and marked Exhibits P1 to P26
and MOs 1 to 20 to prove the charge against the accused. Since it is found that the accused is not entitled for an acquittal under Section 232 Cr.P.C.,
he was called upon to enter on his defence; but, no evidence was adduced from the side of the accused.
5. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, by the impugned
judgment dated 07.05.2018, convicted the accused and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- and in default
of payment of the fine, to undergo simple imprisonment for one year for the offence under Section 302 of IPC It is also ordered that the fine amount,
if realised, shall be paid to PW5 as compensation under Section 357(1) Cr.P.C.
6. Heard Sri. V.A. Ajivass, the learned counsel for the appellant and the learned Public Prosecutor Sri. E.C. Bineesh, and perused the records.
7. The point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused is legally
sustainable.
8. The learned counsel for the appellant argued that the conviction is based on the evidence of a single eye witness and that the evidence of PW1, the
only eye witness who supported the prosecution case, suffers from serious infirmities and the evidence of PW1 that he witnessed the accused
stabbing the deceased is not at all reliable, because PW1 has stated in his evidence that immediately before the occurrence, the accused asked him to
purchase 3 cigarettes and accordingly, he left the house for purchasing the cigarette and in that circumstance, there is no possibility for him to witness
the alleged occurrence that took place inside the house at that time. It is also argued that as per the prosecution case, the alleged illicit relationship was
between the brother of the deceased and sister of the accused and there is no evidence to show that there was any previous enmity between the
accused and the deceased.
9. But, the learned Public Prosecutor pointed out that the evidence of PW1 would clearly show that due to the quarrel between the accused and the
deceased, he immediately returned to the house without purchasing the cigarette, and at that time, he saw the accused breaking a glass by hitting the
same on the wall and thereafter, stabbing on the neck of the deceased with the glass piece and there is no reason to suspect the evidence of PW1
regarding the occurrence. It is also pointed out that there is nothing in evidence to show that PW1 has any reason to falsely depose against the
accused in a serious case of murder.
10. PW1 deposed that he is a casual labourer and that his parents are no more and that the incident occurred in his house at 10 p.m. on 20.09.2016.
On the previous day evening, the deceased Gopan, along with the accused Rajesh, who was released from the jail, reached his house at about 5 p.m.
in the evening of 20.09.2016, contractor Prabhath reached there to discuss about an unloading work on the next day. According to PW1, the deceased
Gopan was residing with him for the last two months and the contractor wanted to engage the witness and Gopan for the work and then the deceased
availed Rs. 500/- from the contractor and thereafter, the deceased and the accused went to purchase liquor and they returned at about 10 p.m. When
the accused and the deceased started to consume liquor, the accused asked PW1 to purchase 3 cigarettes and when PW1 went out of the house for
purchasing the cigarette, he heard the accused and the deceased quarrelling inside the house and therefore, he immediately returned to the house
without purchasing the cigarette and then he saw the accused hitting a glass on the wall and stabbing on the neck of the deceased with the glass
piece.
11. According to PW1, the accused immediately left the place in the motorbike of the deceased. PW1 deposed that he pressed a towel on the neck of
the deceased and called the neighbours; but none of the neighbours came there and thereafter he called Member Noushad. Subsequently, police came
there along with the member and took the injured in an ambulance to hospital and the doctor after examining the injured, declared him dead. According
to PW1, the sister of the accused and the elder brother of the deceased were neighbours and a child was born in their relationship. But in spite of that,
the brother of the deceased has not married the sister of the accused and because of that, there was enmity between the accused and the deceased.
12. In cross-examination, PW1 stated that there is no case against him and he had acquaintance with the deceased Gopan for the last one year.
According to PW1, he has not consumed liquor and he denied the suggestion that he also consumed liquor at the time of occurrence along with others.
According to him, he told the police that the accused broke the glass by hitting the same on the wall. PW1 stated that he came to know about the
relationship between the sister of the accused and the brother of the deceased when the deceased told him about the same. PW1 denied the
suggestion that there was no previous enmity between the deceased and the accused. According to PW1 when the accused stabbed the deceased, he
was standing in the step of the hall room and when the accused stabbed the deceased, the deceased fell backwards. PW1 categorically denied the
suggestion that the deceased fell down in a commotion and sustained the injuries.
13. It is pertinent to note that even though PW1 was seriously cross-examined, no material contradiction or omission is brought out and further the
defence has no case that PW1 has any grudge or enmity towards the accused so as to falsely depose against the accused. The evidence of PW1 in
chief examination regarding the relationship between the sister of the accused and the brother of the deceased is reiterated by PW1 in cross-
examination, he also clarified that he came to know about the said relationship from the deceased.
14. Even though the learned counsel for the appellant argued that there are serious contradictions and inconsistencies in the evidence of PW1
regarding the occurrence, no portion of the previous statement of the witness was specifically brought to his attention while cross-examining him and
no portion of his previous statement is proved legally to contradict him. It is well settled that if it is intended to contradict a witness by his previous
statement in writing, the attention of the witness must be drawn to those parts of it before the writing is proved as held by the Hon'ble Supreme Court
in Tahsildar Sing and another v. State of UP [AIR 1959 SC 1012]
15. In Dasu and others, Appellant v. State of Maharashtra, Respondent (1985 Crl.L.J.1933), it was held that:-
“In order to see whether there is a contradiction by omission it is necessary to find out whether the two statements cannot stand together. It is also necessary to
see whether the statement which the witness has made in the witness-box should have been made by him while reporting the matter soon after the incident. If the two
statements made by the witness cannot stand together and the statements in the court is such that the witness would necessarily have made at the time of his earlier
statement, then alone omission thereof can be considered to be a contradiction.â€
16. The learned Public Prosecutor pointed out that the evidence of PW1 regarding the occurrence is also supported by medical and scientific evidence
and by the evidence of PWs2 to 4 and 6. PW4 Noushad is the Panchayat Ward Member and he deposed that after 10.00 p.m on 20-09-2016, while he
was in the house of PW2, he received a phone call from PW1 informing him about the incident and immediately he also received another phone call
from the police and accordingly he proceeded to the house of PW1 along with PW2. According to PW4, when he reached the place of occurrence
the deceased was lying soaked in blood in the hall room and along with the police they took the victim in an ambulance to the hospital and the Doctor,
after examining him, informed them that he is no more. PW4 is also a witness to Ext.P2 inquest report. In cross-examination, PW4 admitted that he
has no direct acquaintance with the accused and the deceased and that the inquest was conducted at Sasthamcotta Hospital.
17. PW2 deposed that he is residing at Pallissery in Sasthamcotta and on 20-09-2016 at about 10.30 p.m. while he and Ward member Noushad were
watching television in his house, Noushad received a phone call from PW1 and thereafter they proceeded to the house of PW1 in his scooter and
when they reached there they saw the deceased lying there with stab injuries. The evidence of PW2 further shows that Prakash was standing near
the canal and the room was full of blood. PW2 deposed that he saw broken glass pieces in the room. In cross-examination, PW2 stated that the
accused and the deceased were not previously known to him. He would say that there is a distance of 150 metres between his house and the house of
PW1.
18. PW3 is a neighbour of PW1 and she deposed that she heard a noise after 10.00 p.m. on 20-09-2016 and when she came out of the house along
with her husband, she saw PWs2 and 4 and police officials standing there. PW3 stated that when she reached the house of PW1 along with her
husband, they saw a person lying there with stab injuries in the hall room. According to PW3, the said person was Gopakumar, who was residing in
the house of PW1 for the last two or three months. In cross-examination, PW3 admitted that she had not witnessed the occurrence and there is a
distance of 10-50 metres between her house and the house of PW1.
19. PW5 is the mother of the deceased who received the motorcycle of the deceased from the court after executing Ext.P3 kychit.
20. PW6 deposed that he is a building contractor and that the deceased Gopakumar was his friend. According to PW6, the deceased was residing in
the house of PW1 and at about 5.30 â€" 6.00 p.m. on 20-09-2016, he reached the house of PW1 to engage him in an unloading work and at that time
Prakash, Gopan, Rajesh and a relative of Prakash were there and the deceased asked Rs.1,000/- as advance for the work and since there was no
change in his pocket, he took the deceased in his bike to a petrol pump at Sasthamcotta and there he handed over Rs.500/- to the deceased.
According to PW6, at that time, Rajesh came there in the bike of Gopan and both of them returned in that bike. PW6 further deposed that after 10.00
p.m. while he was in his house, he received a phone call from PW1 stating that there is a quarrel, but the witness asked PW1 to pacify them.
According to PW6 on the next day morning, he came to know about the death of Gopan. PW6 also identified the accused before the court.
21. In cross-examination, PW6 stated that the deceased is known to him from his childhood and that they are relatives. According to PW6, the
accused is also previously known to him and the house of the accused is near to his house.
22. PW7 deposed that he is residing on the western side of the house of PW1 and that he signed Exts.P4 and P5 mahazars on 21-09-2016.
23. PW9 was the Associate Professor of Forensic Medicine and Deputy Police Surgeon of Medical College Hospital, Thiruvananthapuram, who
conducted the post-mortem examination on 21-09-2016 and issued Ext.P7 post-mortem certificate. The evidence of PW9 and Ext.P7 post-mortem
certificate shows the following ante-mortem injuries :
 “ Lacerated wound 11 x 1 to 2.5 cm, ' ' shaped with convexity upwards on left side of neck, its lower front end 6 cm below left angle of jaw and lower back end 3
cm behind top of shoulder and 2 cm above root of neck. Its margins showed multiple small side cuts. Underneath sternocliedomastoid muscle was found cut. Internal
jugular vein and common carotid artery were irregularly cut. Vagus nerve showed a laceration 0.3 x 0.2 x 0.1 cm on its front wall. The wound was directed downwards,
forwards and to the right for a depth of 1 to 2.5 cm with maximum depth as its front part.â€
24. According to PW9, the death was due to injuries sustained to the neck and the said injury can be caused by stabbing with a broken glass piece. In
cross-examination, PW9 stated that this injury alone is not possible by falling from a height and that in case of a fall, there will be some associated
injuries. According to PW9, the ante-mortem injuries sustained alone are sufficient to cause death.
25. The Village Officer, who prepared Ext.P8 plan is examined as PW10 and the KSEB Electrical Assistant Engineer, who issued Ext.P10 certificate
stating that there was no power failure in the place of occurrence on 20-09-2016 is examined as PW11. PW13 is the Scientific Assistant, who
inspected the place of occurrence and collected the sample.
26. The evidence of PW14 Sub Inspector of Sasthamcotta Police station shows that he recorded Ext.P1 First Information Statement of PW1 at 2.00
a.m. on 21-09-2016 and registered Ext.P12 First Information Report. It is well settled that the First Information Report is the most immediate and the
first version of the incident and has great value in ascertaining the truth. In this case, the evidence of PW1 regarding the occurrence is supported by a
prompt F.I.R. It is true that the F.I.R is not a piece of substantive evidence, but great importance is attached to a prompt F.I.R as it reduces the
chances of improvement in the prosecution story.
27. PW15 was the Circle Inspector of Sasthamcotta, who took charge of the investigation of this case on 21-09-2016. According to PW15, he
conducted the inquest in the presence of the Scientific Assistant and Fingerprint Expert at about 10.00 a.m. in the Government Hospital Mortuary and
the inquest report is marked as Ext.P2. The material objects recovered from the body at the time of the inquest are identified as MOs1 to 9 and the
property list is marked as Ext.P13. Ext.P4 is the scene mahazar prepared by PW15 and the material objects recovered from the scene of occurrence
are marked as MOs 10 to 16. The property list prepared for producing the said material objects before the court is marked as Ext.P14. According to
PW15, he arrested the accused on 22-09-2016 and the arrest memo, inspection memo and custody memo of the accused are marked as Exts.P15 to
P18. The certificate of medical examination of the accused is marked as Ext.P19.
28. PW15 deposed that on the basis of the disclosure statement of the accused that he kept the motorcycle bearing registration No.KL 02/X 9006 and
a shirt in a place and that he will take out the said motorcycle and shirt if he is taken to that place, the witness as led by the accused reached near the
filter house on the side of Sasthamcotta â€" Karunagappally public road and from the shrubs in the property on the left side of the filter house, the
accused pointed out the motorcycle and a shirt kept on the petrol tank of the motorcycle and the witness recovered the same by preparing Ext.P6
mahazar. Ext.P20 is the property list and the shirt is marked as MO 17. PW15 further deposed that on the basis of the disclosure statement of the
accused that he concealed the shirt, kylie and baniyan in a place and that he will point out the same if he is taken to that place, the witness reached the
property of Afsal near Rajagiri Kurisadi Junction, as led by the accused and from there the accused took out the kylie, shirt and baniyan and the same
was seized as per Ext.P11 mahazar. The kylie is marked as MO18, the shirt is marked as MO19 and the baniyan is marked as MO20. The property
list prepared for producing the same before the court is marked as Ext.P21. Ext.P22 is a report filed by the witness regarding the name and address of
the accused. Ext.P23 is a letter seen in the purse of the deceased and recovered at the time of inquest and the same is marked as Ext.P23. PW15
further deposed that as per Ext.P24 forwarding note, the material objects seized were forwarded for scientific examination to the Forensic Science
Laboratory and the report from the Forensic Science Laboratory is marked as Ext.P25. The report from the Fingerprint Bureau is marked as Ext.P26.
The evidence of PW15 and Ext.P26 shows that the chance print developed on the scene of crime and the specimen right thumb impression of the
accused contained identical ridge characteristics and that both the finger impressions are identical and that they are made by the same finger of the
same person. From Ext.P26, it can be seen that the chance print S1 was developed from the glass piece seen at the place of occurrence.
29. From the cross-examination of the material witnesses, it can be seen that the case set up by the defense is one of total denial and when the
accused was questioned under Section 313 Cr.P.C, he denied all the incriminating circumstances and maintained that he is innocent. Apart from PW1,
PW6 also deposed regarding the presence of the accused in the house of PW1 along with the deceased on the date of occurrence. The evidence of
PW2, who reached the place of occurrence along with PW4 Panchayat member also shows that he saw the accused Prakash standing near to the
canal when he reached there. There is no reason to disbelieve the evidence of PWs 2 and 6 regarding the presence of the accused at the place of
occurrence. Therefore, we find that their evidence also supports the evidence of PW1 regarding the occurrence.
30. The evidence of PW9 and the ante-mortem injuries noted in Exhibit P7 postmortem certificate will clearly show that the death of Gopakumar is a
homicide. Further, the defence has also no case that the death of Gopakumar is not a homicide.
31. In State of Andra Pradesh v. Rayavarpu Punnayya {AIR 1977 SC 45} it was held as follows:-
“When the Court is confronted with the question whether the offence is “murder†or “culpable homicide not amounting to murderâ€, the problem is to be
approached in three stages. The question to be considered at first stage is whether the accused has done an act by doing which he has caused the death of another
person. Proof of such causal connection between the act of the accused and the death leads to the 2nd stage for consideration whether that act of the accused
amounts to “culpable homicide†as defined in section 299. If the answer of this question is prima facie found in the affirmative the stage is reached for considering
the operation of section 300, I.P.C. This is the stage at which the Court should determine whether the acts proved by the prosecution bring the case within the ambit
of any of the four clauses of the definition of “murder†contained in section 300. If the answer to this question is in the negative the offence would be culpable
homicide not amounting to murder punishable under the first or the 2nd part of section 304, depending respectively on whether the 2nd or the 3rd clause of section
299 is applicable. If the question is found to be positive, but comes within any of the exceptions enumerated in section 300, the offence would still be culpable
homicide not amounting to murder punishable under the first part of section 304. But sometimes the facts are so intertwined and the 2nd and 3rd stages are so
telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the 2nd and the 3rd stages.â€
32. In Zahira Habibullah H. Sheikh V. State Of Gujarat 2004 (4) SCC 158, the Hon’ble Supreme Court held thus:
“A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to
the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question
being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for
the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which
has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.â€
33. It is well settled that minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn
out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the
root of the matter, would not ordinarily permit rejection of the evidence as a whole, as held by the Hon’ble Supreme Court in State of Uttar
Pradesh vs. M.K. Anthony [AIR 1983 SC 48].
34. In this case, PW9 has specifically stated that the death was due to the injury sustained to the neck and the said injury can be caused by stabbing
with a broken glass piece. According to PW9, the said injury alone is sufficient to cause death. In this case, even though the accused denied all the
incriminating circumstances against him and maintained that he is innocent at the time of 313 questioning, he has no case that he was not there in the
house of PW1 at the time of occurrence. The prosecution has adduced reliable evidence to prove the presence of the accused in the house of PW1
along with the deceased at the time of occurrence. It is also in evidence that the deceased was residing along with PW1 for the past two or three
months and the accused, who was released from jail on the previous day, reached there along with the deceased and that there occurred a quarrel
between the accused and deceased while they were consuming liquor in the house of PW1.
35. The evidence of PW1 shows that immediately before the occurrence, the accused asked PW1 to purchase 3 cigarettes and that when he went out
of the house, he heard the noise of the accused and the deceased quarrelling inside the house and therefore, he immediately returned to the house and
then, he saw the accused breaking a glass by hitting the same on the wall and stabbing the deceased on the neck with a piece of glass and the
deceased falling backward on sustaining the stab injury. The evidence of PW1 clearly shows that the accused left the place in the motorbike of the
deceased and it is in evidence that subsequently, PW15 recovered the motorbike of the deceased on the basis of the disclosure statement of the
accused. There is nothing in evidence to indicate that any of the witness have any grudge or animosity towards the accused so as to falsely implicate
him in a serious case of murder. The fact that the accused deliberately broke a glass by hitting the same on the wall and used the piece of the glass to
stab the deceased on the neck and the fact that the accused deliberately attempted to avoid the presence of PW1 there at the time of occurrence by
asking him to purchase 3 cigarettes, clearly shows that the accused stabbed on the neck of the deceased with the intention of causing his death and
therefore, we find that the case would attract the first clause of Section 300 IPC.
36. On a careful re-appreciation of the entire evidence, we find no reason to disagree with the findings of the trial court that the accused committed
the murder of the deceased Gopakumar and therefore, we find that the trial court rightly convicted the accused for the offence under Section 302 of
IPC and in view of the fact the trial court has awarded the minimum sentence of imprisonment for life, we find no reason to interfere with the
sentence imposed on the accused by the trial court.
In the result, this appeal is dismissed confirming the conviction entered and the sentence passed by the learned Additional Sessions Judge, Kollam in
S.C No.1151 of 2017. Interlocutory applications, if any pending, shall stand closed.
