P.B.Suresh Kumar, J.
1. The appellant stands convicted and sentenced for the pre-meditated murder of his wife.
2. The appellant and victim were residing together only for a short period after their marriage. They have a girl child aged 5½ years and she was
living with the victim. Of late, a case was registered against the appellant at the instance of the victim. The allegation therein was that the appellant
molested the child. The appellant remained under incarceration in the said case for sometime as an under-trial prisoner.
3. On 21.03.2017, a relative of the victim found her lying on the side of the road leading to her house in a pool of blood with injuries on her body.
Though the victim was taken by the said relative and another who had reached there, to the Palakkad District Hospital initially and then to Palana
Hospital, the victim breathed her last on the way to the latter hospital. A case was registered on the same day by the Palakkad police based on the
information furnished by the relative of the victim who took her to the hospital. The investigation in the case revealed that it was the appellant who
caused the death of the victim and consequently, final report to that effect was filed in the case. The allegation in the final report is that at about 6.40
p.m. on 21.03.2017, the appellant caused the death of the victim by stabbing her on account of his enmity towards her for lodging a complaint against
him alleging molestation of his daughter.
4. On the appellant being committed to trial, the Court of Session took the case on file as S.C.No.579 of 2017 and framed charge against him, to which
he pleaded not guilty. The prosecution, thereupon, examined 42 witnesses as PWs 1 to 42 and proved through them 58 documents as Exts.P1 to P58
series. MOs 1 to 49 series are the material objects in the case. Exts.D1 and D2 are the case diary statements of PW4. When the incriminating
circumstances brought out in evidence were put to the appellant in terms of the provisions contained in Section 313 of the Code of Criminal Procedure
(the Code), he denied the same and maintained that he is innocent. As the case was not one fit for acquittal in terms of the provision contained in
Section 232 of the Code, the appellant was called upon thereafter to enter on his defence. He however chose not to adduce any evidence. Thereupon,
on a consideration of the evidence on record, the Court of Session held that the appellant is guilty of the charge, convicted and sentenced him for
imprisonment for life and to pay a fine of Rs.4,00,000/- for the offence punishable under Section 302 IPC. The appellant is aggrieved by his conviction
and sentence and hence this appeal.
5. The point that falls for consideration is whether the conviction of the appellant and the sentence passed against him, are sustainable in law.
6. Heard the learned counsel for the appellant as also the learned Public Prosecutor.
7. The learned counsel for the appellant did not attack the finding rendered by the Court of Session that the death was a homicide. On the other hand,
the attempt of the learned counsel was to establish that the evidence let in by the prosecution does not establish the guilt of the appellant beyond
reasonable doubt. Elaborate arguments have been advanced by the learned counsel to bring home the said point. We are not referring to the
arguments now, for we propose to deal with the same, after referring to the acceptable evidence in the case.
8. Let us now deal with the relevant evidence. PW1 is a relative of the victim, on whose statement, the case was registered. Being a neighbour and
relative of the victim, PW1 knew the appellant. PW1 deposed that on the relevant day when he went to the road in front of his house on hearing a
scream, he saw the appellant coming with blood on his body and when he questioned the appellant by withholding him, the appellant told him that he
hacked his wife and then ran away from there after pushing PW1 aside. PW1 deposed that when he proceeded to the place from where the scream
was heard, he saw a lady lying on her chest in a pool of blood on the side of the road with her body partly in the drain and that when he made her lie
on her back, he found that it was the victim. PW1 deposed that he along with one Renjith took the victim to the Palakkad District Hospital and from
there to Palana Hospital, and by the time they reached Palana Hospital, the victim died. PW1 affirmed that it was he who furnished Ext.P1 First
Information Statement. PW1 also identified the appellant in the dock as the husband of the victim. In cross-examination, it was clarified by PW1 that
the road abutting his house is a byroad; that there is a distance of 2 meters from the said byroad to reach the main road; that the main road in front of
his house takes a curve after about 100 meters on the direction from where the body of the victim was found and that it is not possible to see the place
where the body was found from his house.
9. PW4 is one Joy Chacko. PW4 resides on the northern side of the road right in front of the place where the body of the victim was found by PW1.
PW4 deposed that on the relevant day by about 6 p.m., while he was coming back home after purchasing some articles, he saw an autorickshaw and
the appellant alighting from that autorickshaw at the curve in the road on the western side of his house. It was also deposed by PW4 that after
sometime, while he was standing in the courtyard of his house, he heard a scream from the road and when he proceeded to that place, he saw the
appellant stabbing a lady and running away from the said place after pushing her. It was also deposed by PW4 that though his son Lijo and he chased
the appellant for some distance, they could not catch hold of him. It was further deposed by PW4 that when they returned, PW1 had made the lady lie
on her back and it was found by him then that it was the victim who was stabbed by the appellant.
10. PW8 is the sister of PW1. They are persons residing in the same house. PW8 deposed that on hearing a noise from the road, she proceeded first
to that place and on her way to that place, she saw the appellant sitting near a water pipe on the side of the road with blood on his body and clothes.
According to her, within no time, PW1 also reached that place and when PW1 attempted to withhold the appellant, he ran away from there after
pushing aside PW1. It was also deposed by PW8 that the son of PW4 informed them then that a girl is lying near that place with injuries and when all
of them proceeded to a distance of about 50 meters, they saw a lady lying on her chest on the road and when her brother made the lady lie on her
back, they realised that it was the victim.
11. PW9 is a person who is residing in the locality. PW9 deposed that when she alighted from the bus at a place called Kattukulam on the relevant
day, the victim also came there by another bus and they were walking together thereafter for sometime. PW9 also deposed that after sometime,
somebody called the victim over her mobile and while the victim was talking on the mobile, PW9 walked ahead of the victim. PW14 is an auto driver.
PW14 deposed that on 21.03.2017, the appellant called him for a ride and at about 6.15 p.m., he dropped the appellant about 350 meters towards
Kongadu side from Kattukulam. PW14 also deposed that he later saw the appellant at the Hemambika Police Station. PW15 deposed that the
appellant purchased a knife from his shop on 21.03.2017 at about 3.30 p.m. and the endorsement “120†on the knife was one made by him. PW16
is a person who is selling pesticides and he deposed that the appellant purchased MO15 bottle pesticide from his shop during March 2017. PW16 also
deposed that he identified the appellant later when the police brought the appellant to his shop.
12. PW22 is a lady residing near the residence of PW4. PW22 deposed that she saw the victim walking through the road with a Muslim girl and that
she also saw the autorickshaw dropping someone close to the water tank near her house a few minutes before. PW23 was a colleague of the victim.
PW23 deposed that the victim had left the office after work at 5.30 p.m. on the relevant day. PW26 is the mother of the victim. PW26 explained the
circumstances which led to the registration of the case against the appellant alleging that he had molested his daughter.
13. PW30 was the doctor who examined the victim at the casualty of the District Hospital, Palakkad. PW30 deposed that he examined the victim on
21.03.2017 who was brought with alleged history of assault by her husband. PW29 was the doctor who conducted autopsy of the body of the victim
on 23.03.2017. Ext.P20 is the autopsy certificate issued by PW29. PW29 noticed altogether 32 ante-mortem injuries on the body of the victim at the
time of autopsy. It was opined by PW29 that ante-mortem injuries 1 and 2 sustained to the chest and abdomen of the victim were the cause of her
death. Injuries 1 and 2 have been described by PW29 in his deposition thus:
1. Incised penetrating wound, 4.5 cm long, gaping, slightly oblique, on left side of front of chest, its lower inner blunt end was 13 cm outer to midline and 26.5 cm
above anterior superior iliac spine, outer end was sharp. It penetrated into the chest cavity by cutting the 7th rib and transfixed lower lobe of left lung, just close to
the oblique fissure and terminated in the upper lobe and the lung was collapsed. It was directed, upwards. backwards and to right for a total minimum depth of 6.5 cm.
2. Incised penetrating wound 10.5x1.5 cm, oblique, on left side of back of trunk, its upper inner end was sharp, just above top of hip bone and 9.5 cm outer to midline.
The outer end was blunt. It penetrated into peritoneal cavity, transfixed the left kidney (1.5x0.5x0.5cm), mesentery (5 cm long) close to small intestine and terminated
by penetrating small intestine (1 cm long). The wound was directed forward and to right for a total minimum depth of 8.5 cm.
It was also deposed by PW29 that injuries aforesaid could be inflicted using MO1 knife shown to him.
14. PW31 was a doctor at the Government Medical College, Palakkad who discharged the accused who was admitted for treatment there on
22.03.2017. PW31 deposed that he noted a lacerated wound 6 x 2 cm over the right hand volar aspect of the appellant and that the same is one that
could be inflicted by MO1. PW31 deposed that on 22.03.2017, the accused was referred to the Government Medical College, Palakkad since the
patient needed emergency wound exploration and tendon with nerve repair as Neurovascular Surgeon was not available at the Government Medical
College Hospital, Pallakkad. PW32 was the doctor who admitted the accused at the Medical College Hospital, Thrissur and treated him on
23.03.2017. PW32 deposed that the accused was discharged from the said hospital on 27.03.2017.
15. PW38 was the police officer who recorded Ext.P1 First Information Statement from PW1. PW38 deposed the said fact in his evidence. In cross-
examination, PW38 clarified that he received information about the occurrence while on patrol duty and immediately thereupon, he made
arrangements to guard the scene of occurrence. PW42 was the police officer who conducted the investigation in the case. PW42 deposed that on
22.03.2017, he prepared Ext.P4 scene mahazar, and MO1 knife was seized as per the scene mahazar. It was also deposed by PW42 that MO15
pesticide bottle was found at a distance of approximately 20 meters on the northern side from where the bloodstain sample was appeared to have
been taken by the scientific expert and MO2 series chappals were found at two different places on the eastern side of the road on the further north-
west of the scene of occurrence and they were also seized by him while preparing the scene mahazar. It was also deposed by PW42 that one of the
chappals was found near an iron water pipe on the side of the road. It was also deposed by PW42 that the appellant was taken into custody from the
place called Panjamala at 2.45 p.m. on 22.03.2017 and since it was found that the appellant suffered a serious injury on his right hand at the time when
he was taken into custody, he was taken first to the District Hospital, Palakkad and then to the Medical College Hospital, Thrissur for treatment for
the said injury and he was arrested on 27.03.2017 when he was discharged from the Medical College Hospital, Thrissur.
16. PW39 is the scientific officer attached to the District Crime Records Bureau, Thrissur who inspected the scene of occurrence and its surroundings
and collected various objects from there for forensic examination. PW39 deposed that among others, she collected bloodstained tarred material from
the place of occurrence, bloodstain in cotton gauze from iron water pipe and bloodstained leaves from Panjamala. PW40 was the Assistant Director
of the DNA Division of the Forensic Science Laboratory, Thiruvananthapuram, who issued Ext.P33 report. Item 9 in Ext.P33 report is MO1 knife and
item 10 therein is MO2 series chappals. Item 16 in Ext.P33 report is the bloodstained tarred material collected by PW39 from the scene of
occurrence, item 17 therein is the bloodstain collected in cotton gauze from the iron pipe on the side of the road by PW39 and item 19 in Ext.P33 is the
bloodstained leaves collected from Panjamala by PW39. It is stated in Ext.P33 report that the bloodstains in items 9, 10, 16, 17 and 19 belong to the
accused.
17. One of the contentions seriously pressed into service by the learned counsel for the appellant as regards the evidence tendered by PW4 and PW8
is that they did not identify the accused in the dock. The materials on record would indicate that the said witnesses are persons residing in the locality
of the residence of the victim and they know both the the victim as also the appellant. It is seen that the said witnesses deposed in court as if it was
not necessary in such cases to identify the accused in the dock, owing to their previous acquaintance with the victim and the appellant. Inasmuch as
the identification of an accused in court by the witnesses forms the substantive evidence in a case, even if the witness and the accused are persons
known to each other, it is obligatory for the witnesses to identify the accused in court by pointing out that the person referred to by him/her in his/her
evidence is the person who is standing in the dock and it is obligatory for the court to record in the deposition that the witness has identified the
accused in the dock [See Vayalali Girishan and Others v. State of Kerala, 2016 KHC 204 and Shaji @ Babu @ Japan Shaji v. State of Kerala, 2021
(5) KHC SN 27]. The omission to do so, according to us, is fatal to the prosecution case. Every criminal trial is a voyage of discovery in which truth is
the quest. It is the duty of the presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice.
For that purpose he is expressly invested by Section 165 of the Evidence Act with a right to put questions to witnesses [See Ram Chander v. State of
Haryana, (1981) 3 SCC 191]. If the prosecutor omits to put appropriate questions to the witness for the said purpose, according to us, the power of the
court under Section 165 of the Indian Evidence Act could be invoked. Unfortunately, the trial court has not recorded in the deposition of the witnesses
referred to above that they had identified the accused in the dock. In other words, there is nothing on record to indicate that the person referred to by
PWs 4 and 8 in their evidence as the accused Biju, was the person standing in the dock. No doubt, the view would be too technical in the context of a
case of this nature where the witnesses had close acquaintance with the accused. It is seen that in Shaji, one of the witnesses made a statement that
the accused is present in court. Still, the view taken by the court is that the said statement is too vague an expression to accept as proper identification
of the accused. Needless to say, the contention raised by the learned counsel for the appellant in this regard is to be accepted and no reliance can be
placed therefore on the evidence tendered by PWs 4 and 8.
18. Another contention seriously pressed into service by the learned counsel is regarding the acceptability of the evidence tendered by PW14. As
noted, PW14 is the auto driver who dropped the appellant near the scene of occurrence at about 6.15 p.m. on the relevant day. The argument is that
no one placed in a position of PW14 would be able to identify precisely and correctly all passengers in the auto rickshaw. We are unable to accept the
said argument as a general proposition. It depends on the facts and circumstances of each case. For instance, if there is an occasion for the auto
driver to interact closely with a passenger in the course of the ride or owing to any other special reason the auto driver has noticed a passenger, there
is absolutely no reason to doubt the veracity of such evidence. Reverting to the facts, it is to be noted that it is not for the first time after the
occurrence that PW14 identified the appellant in court. It has come out in evidence that immediately after the occurrence, he identified the appellant at
the police station as a person who travelled in his autorickshaw. As such, we are unable to accept the argument advanced by the learned counsel in
this regard.
19. Similarly, it was argued by the learned counsel that no reliance can be placed on the evidence tendered by PW15 also, who deposed that it was he
who sold MO1 knife to the appellant. The argument is that there is nothing on record to indicate that the knife stated to have been shown to the
witness in the course of the evidence was MO1. We have examined meticulously the evidence tendered by PW15. Even though it was argued that
the knife shown to PW15 during the course of his examination as recorded in his deposition was not MO1, it is clear from his deposition that he was
shown MO1 knife, as otherwise he would not have been able to depose about the endorsement “120†contained therein. In other words,
according to us, it is an inadvertent omission on the part of the court in recording the evidence that MO1 was shown to the witness. As such, we are
unable to accept the argument of the learned counsel.
20. Another argument advanced by the learned counsel is as regards the delay in producing MO1 knife and MO2 series chappals in court. MO1 knife
and MO2 series chappals were seized by the investigating officer as per Ext.P4 scene mahazar on 22.03.2017 and the same are seen produced before
the court only on 25.05.2017 as per Ext.P47 property list. According to the learned counsel, the delay in producing the said material objects in court is
fatal to the prosecution case and no reliance can, therefore, be placed on Ext.P33 report of the Forensic Science Laboratory as regards the
bloodstains found on the said material objects, especially when there is nothing on record to indicate that the same were packed and sealed at the time
of seizure. No doubt, the material objects aforesaid were seized as per Ext.P4 mahazar prepared on 22.03.2017 and the same were produced before
the court only on 25.05.2017. There is also nothing on record to indicate that the said material objects were packed and sealed at the time of its
seizure. No doubt, the said material objects should have been produced before the Jurisdictional Magistrate within a reasonable time, especially in the
absence of any report by the investigating officer as to why he retained the same for the purpose of the investigation. The question therefore, is
whether the inaction on the part of the investigating officer in producing the material objects in court precludes the prosecution from placing reliance
on the report of the Forensic Science Laboratory as regards the blood found on the said material objects. According to us, questions of this nature
need to be answered on the facts and circumstances of each case, and merely for the reason that there is delay in producing the material objects in
court, the report of the Forensic Science Laboratory is not liable to be rejected, unless there are reasonable grounds to suspect that prejudice has been
caused to the accused on account of the same. Reverting to the facts, no questions were asked by the accused during the cross-examination of
PW42, the investigating officer about the delay that occasioned in producing the material objects aforesaid in court. In the circumstances, according to
us, the argument advanced in this regard is liable to be rejected.
21. Yet another contention raised by the learned counsel is that PW39, the scientific officer has not deposed in her evidence, the time at which she
collected the bloodstained tarred pieces from the scene of occurrence as also the bloodstain collected by her in the cotton gauze from the iron pipe on
the side of the road and the place where the same were packed and sealed. It was also pointed out that the said objects were produced before the
court only on 11.04.2017 as per Ext.P46 property list and there is no explanation for the delay. According to the learned counsel, no reliance can be
placed, in the circumstances, on Ext.P34 report in respect of the said objects. We do not find any merit in this argument. As in the case of MO1 and
MO2, the investigating officer was not cross-examined by the counsel for the accused on the delay. PW39 has categorically stated in her evidence
that the objects collected by her were handed over to the investigating officer after packing and sealing the same with the specimen seal impression.
PW39 was not cross-examined as regards the time of taking samples and the place where the samples were packed and sealed. As such, we do not
find any merit in this argument.
22. As noticed, the occurrence took place at about 6.40 p.m. and PW38, the police officer recorded the first information statement only at 11 p.m. It
has come out in evidence that the police came to the scene of occurrence at about 7 p.m. and that even PW1 saw the police at the scene at 10.30
p.m. According to the learned counsel, there was therefore no impediment for the police to record the first information statement at the time when
they came to the scene at about 7. p.m. or at least when the police met PW1 at the scene at about 10.30 p.m. As such, the contention raised by the
learned counsel is that the delay in registering the FIR is fatal to the prosecution. That apart, it was also pointed out by the learned counsel that even
though the First Information Report was registered at 11.00 p.m. on 21.03.2017, it reached the jurisdictional Magistrate only on 24.03.2017. According
to the learned counsel, the said delay is also not satisfactorily explained and the same is also therefore fatal to the prosecution case.
23. Coming to the delay in forwarding the First Information Report to the court, the purpose of requirement is to avoid any possible ante-dating or
ante-timing leading to insertion of material contrary to truth and to enable the Magistrate concerned to have a watch on the progress of the
investigation. But it is now trite that mere delay by itself is not a sole factor in rejecting the prosecution case arrived at, after due investigation and it is
for the court ultimately to take a call as to the consequence, having regard to the facts and circumstances of each case. Reverting to the facts, as
pointed out by the learned counsel, there is no satisfactory explanation for the delay in recording the First Information Statement and registering the
case based on the same as also for the delay in forwarding the First Information Report to the jurisdictional Magistrate. We do not think that the delay
in registering the First Information Report and forwarding the First Information Report to the jurisdictional Magistrate is fatal to the case of the
prosecution inasmuch as PW1, on whose information the case was registered is not an eyewitness to the occurrence and the evidence tendered by
him that he saw the accused immediately after the occurrence is corroborated by other evidence in the case.
24. In the light of the findings aforesaid, there is no direct evidence in the case to prove the facts in issue, although there is circumstantial evidence. In
a case where the prosecution attempts to establish its case through direct and circumstantial evidence, it is trite that merely for the reason that direct
evidence let in by the prosecution is not found acceptable, the accused is not entitled to be acquitted, if the circumstantial evidence establishes the guilt
of the accused beyond reasonable doubt. The next aspect to be considered, therefore, is whether the circumstances proved by the prosecution in the
case would establish the guilt of the accused beyond reasonable doubt. It is necessary to keep in mind the principles to be followed in arriving at a
finding as to the guilt of the accused in a case on circumstantial evidence. The principles are:
(1) that the circumstances from which the conclusion of guilt is drawn are fully established,
(2) that the facts so established are 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,
(3) that the circumstances are of a conclusive nature and tendency,
(4) that they should exclude every possible hypothesis except that the accused is guilty, and
(5) that 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.
It is also necessary to state in this context that in the light of the provision contained in Section 3 of the Indian Evidence Act, a fact is said to be proved
not only when, after considering the matters before it, the court either believes it to exist, but also when the court considers its existence so probable
that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. No doubt, the standard of proof
required to be applied in a case of this nature is “proof beyond reasonable doubtâ€, but that does not mean that the degree of proof must be beyond
a shadow of doubt [See Iqbal Moosa Patel v. State of Gujarat, (2011) 2 SCC 198]. In other words, the degree of proof need not reach certainty, but it
must carry a high degree of probability.
25. Let us now consider the circumstances proved by the prosecution in the case. The following are the circumstances that could be taken as proved
from the evidence let in by the prosecution:
(i) that the appellant and victim were living separately at the time of occurrence;
(ii) that the appellant had to undergo incarceration in the case registered at the instance of the victim against him alleging molestation of his 5 ½ year old daughter;
(iii) that the victim left office at about 5.30 p.m. on the relevant day, alighted from the line bus in which she travelled from the office to her place of residence at
Kattukulam at about 6.40 p.m and was proceeding through the road leading to her house from Kattukulam;
(iv) that the appellant purchased MO15 pesticide bottle from PW16 sometime during March, 2017;
(v) that the appellant purchased MO1 knife at about 3.30 p.m. on the relevant day from PW15;
(vi) that the appellant came in an autorickshaw from Kattukulam and alighted near the place of occurrence at about 6.15 p.m.;
(vii) that PW1 heard a scream at about 6.30 p.m. on the relevant day from the road near his house and when he went to the road hearing the scream, he saw the
appellant coming with blood on his body;
(viii) that when PW1 questioned the appellant by withholding him, the appellant told PW1 that he hacked his wife, and ran away from there after pushing PW1 aside;
(ix) that when PW1 proceeded to the direction from where the scream was heard, he saw the victim lying on the road in a pool of blood with injuries;
(x) that MO1 bloodstained knife was seized from a place close to the scene of occurrence;
(xi) that the fatal injuries sustained to the chest and abdomen of the victim were the cause of the death of the victim and the said injuries were injuries that could be
caused using MO1 knife;
(xii) that the appellant was taken into custody from Panjamala on 22.03.2017 and at that time, there was a serious injury on his right hand;
(xiii) that the injury found to have been suffered by the appellant at the time when he was taken into custody was one that could be caused using MO1 knife;
(xiv) that MO2 series chappals were recovered from two places near the scene of occurrence and it contained the blood of the appellant;
(xv) that the bloodstains contained in the tarred material collected from the place of occurrence and the bloodstain collected from an iron pipe close to the place of
occurrence belong to the appellant; and
(xvi) that the bloodstains on the dried leaves collected from the place from where the accused was taken into custody also belong to the appellant.
The aforesaid circumstances are consistent only with the hypothesis of the guilt of the accused; that they would exclude every possible hypothesis
except that the accused is guilty, and that they constitute a chain of evidence so complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and the same would show that in all human probability, the act must have been done by the accused.
Needless to say, the aforesaid circumstances would establish beyond doubt that it was the accused who caused the death of the victim.
In the facts and circumstances, we do not find any merit in the appeal and the same is accordingly dismissed.
