TaxTMI 
TaxTMI 
2019 (10) TMI 1628
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....m and the appellant. They went out of the house of PW1 and reached the nearby pathway. Then, the appellant took out a chopper, which was concealed behind his body under the shirt, and he struck a blow with it on the neck of the deceased. He also assaulted PW1 to PW3 with the chopper and beat PW1 and PW4 with a stick and caused hurt to them. The deceased was taken to a hospital but he succumbed to the injury sustained on the neck. The incident took place at about 19.00 hours on 19.08.1999. 3. PW21 Sub Inspector recorded Ext.P1 first information statement of PW1 at 22.00 hours on 19.08.1999 at the hospital. On the basis of that statement, Ext. P21 first information report was registered as Crime No. 108/1999 of Oonnukal police station. PW23 Circle Inspector conducted the investigation of the case. After completing the investigation, he filed charge sheet against the appellant for the offences punishable under Sections 302, 326 and 324 of the Indian Penal Code. 4. The trial court framed charge against the appellant for the offences mentioned above. The accused pleaded not guilty and claimed to be tried. 5. During the trial of the case, PW1 to PW23 were examined and Exts. P1 t....
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.... evidence, along with Ext.P20 postmortem certificate issued by him, reveals that the deceased had sustained only the following injury. "Incised gaping wound 13 x 4 x 7 cm on the left side of neck. Its front end was 7.5 cm behind chin and 4.5 cm above the inner end of collar bone and 2 cm outer to midline. Its back end was placed 8.5 cm below the posterior hair line margin and 2 cm to the left of midline. The muscles, blood vessels and nerves of the neck were cut. The 7th cervical vertebra showed a cut fracture 2 x 1.5 cm, the spinal cord was exposed and its fibres showed laceration." 11. PW20 has deposed that death of the deceased was due to the above mentioned injury sustained on the neck. There is no reason to disbelieve his evidence in this regard. The evidence of PW20 is not challenged by the defence on any ground. His evidence proves that the deceased had died due to the injury sustained on the neck, which is mentioned in Ext.P20 autopsy report. This is a clear case of homicide. 12. PW1 to PW7 are the occurrence witnesses examined by the prosecution to prove the alleged incident. PW1 is the sister of the mother of the deceased. PW2 is the mother of the deceased.....
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....spital at 20.30 hours on 19.08.1999. Since Dr. K.I. Kuriakose who issued Ext.P15 certificate could not be examined, another doctor who was familiar with the handwriting and signature of Dr. K.I. Kuriakose, was examined as PW19 to prove the certificate. Likewise, Exts.P19 and P16 wound certificates issued by Dr. K.I. Kuriakose in respect of PW2 and PW3 were also got marked through PW19. It is seen that the defence had objected to the marking of the wound certificates issued by Dr. K.I. Kuriakose through PW19. 20. The prosecution could not examine Dr. K.I. Kuriakose because he was sick and not in a position to appear before the court. PW19 has deposed that Dr. K.I. Kuriakose was aged 70 years at that time. It was in such a situation that the prosecution got the wound certificates marked through PW19 who was working in the same hospital and who was familiar with the handwriting and signature of Dr. K.I. Kuriakose. 21. Section 32(2) of the Indian Evidence Act provides that when a statement, written or verbal, of relevant facts is made by a person in the discharge of professional duty, and if such person has become incapable of giving evidence or his attendance cannot be procured ....
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..... PW1 would even state that she did not see the injury on the neck of the deceased. It is not at all safe to place implicit reliance upon the testimony of such a witness. 24. PW1 has stated on cross-examination that her statement was recorded by the police on 20.08.1999 and that she signed Ext.P1 statement only on that day. However, PW21 Sub Inspector has given evidence that he recorded Ext.P1 statement at 22.00 hours on 19.08.1999. As noticed earlier, PW1 has admitted that she had given a statement to the police as contained in Ext.P1. She also admitted her signature in it. She is a witness won over by the defence. In such circumstances, based on the evidence given by her that she gave the statement to the police only on 20.08.1999, it cannot be found that Ext.P21 first information report is an ante-timed document. 25. PW2 is the mother of the deceased. She has deposed that the incident took place at 19.00 hours on 19.08.1999. She would say that she saw the appellant and the deceased talking with each other at the way in front of her tharavad house about the rape case registered against the appellant. The deceased was not amenable to compromise the case against the appellant....
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....rough PW19 doctor, shows that PW3 was examined by the doctor at the hospital at 20.30 hours on 19.08.1999. Ext.P16 certificate shows that PW3 had sustained an incised irregular shaped deep injury over the parietal region, just above the left ear, measuring 10 inches long. Thus, medical evidence corroborates the testimony of PW3 that she had sustained injury above the left ear with a chopper. 30. The evidence of PW2 and PW3 is consistent to the effect that the appellant inflicted the fatal injury on the neck of the deceased with MO1 chopper. There are no material contradictions in their evidence on that aspect. Their evidence is also consistent to the effect that the appellant struck them with the chopper, causing injury to them. Medical evidence corroborates the testimony of PW2 that she sustained injuries on the thumbs of both hands with a chopper. There was near total amputation of her right thumb. Medical evidence also corroborates the testimony of PW3 regarding the injury sustained by her. 31. While appreciating the evidence of a witness, the approach must be whether the testimony of the witness, read as a whole, appears to have a ring of truth. Once that impression is fo....
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....hould not reject trustworthy evidence on grounds which are fanciful or in the nature of conjectures. 33. PW2 and PW3 are witnesses closely related to the deceased. PW2 is the mother and PW3 is the sister of the deceased. It does not mean that they are interested witnesses. Their evidence cannot be discarded merely on account of their relationship with the deceased. 34. A close relative, who is a natural witness, cannot be regarded as an interested witness. The term 'interested' postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other reason (See Kartik Malhar v. State of Bihar: (1996) 1 SCC 614 and Dalbir Kaur v. State of Punjab : AIR 1977 SC 472). Ordinarily, a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. The mere fact of relationship, far from being a foundation for false implication is often a sure guarantee of truth (See Dalip Singh v. State of Punjab: AIR 1953 SC 364). There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of pa....
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....everything) is not a sound rule to be applied in India. It is the duty of the Court, in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then the court should uphold the prosecution case to the extent it is considered safe and trustworthy (See Ranbir v. State of Punjab : AIR 1973 SC 1409). 38. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, his conviction can be maintained. It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. Falsity of material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" is merely a rule of caution. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it i....
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.... by him. The chopper was seized from an open space in the compound of the house of a stranger. It is stated in Ext.P11 mahazar that PW23 got information that the chopper was lying at the place mentioned therein. PW23 has not given any evidence as to the person who gave such information or how he got such information or who had pointed out the chopper to him. 41. PW8 was examined by the prosecution to prove that the appellant was seen proceeding from the spot of the incident with a chopper and a stick in his hands. PW8 is the brother of the deceased. He has deposed that he saw the deceased lying on the ground with injury, but he did not see the appellant striking the deceased. PW8 has deposed that he saw the appellant proceeding from the spot of the incident with a chopper and stick in his hands and there was blood on the chopper. PW8 would however say that the appellant waved the chopper towards him and he (PW8) avoided the blow and that he (PW8) caught hold of the appellant and took the chopper from his hand and threw it away to the nearby compound. 42. The evidence of PW8 is not at all reliable and trustworthy. PW8 had not given statement to the police that he seized the ch....
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....ahazar. PW13 is an attestor to Ext. P8 mahazar. He identified his signature in it. He has deposed that he saw the police seizing the stick. 49. According to the prosecution case, PW1 and PW4 are the persons who had sustained injury on account of beating given by the appellant with MO5 stick. However, PW1 has deposed that she did not sustain any injury due to beating with any stick. PW4, who would say that he had sustained injury on account of beating with a stick, has deposed that he could not state who had beaten him with the stick. PW4 also did not identify MO5 in the court as the stick with which he was beaten. Since there is absolutely no evidence to find that the appellant had beaten PW1 or PW4 with any stick, the evidence regarding the recovery MO5 stick has no relevance in the case. 50. PW10 has deposed that he reached the spot of the incident hearing a cry and then he saw the deceased lying there with injury on his neck. PW10 would say that he saw PW2 and PW3 there with injuries on their body. PW10 has deposed that PW2 then stated that Kurian (the appellant) had cut the deceased. 51. The trial court has found that PW10 is a natural and truthful witness. The trial c....
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....vidence Act. But then the court must be assured of two aspects, that is, reliability of the evidence and accuracy of the contents of the pronouncement. 55. The testimony of PW10 that, he heard PW2 saying that the appellant cut the deceased, cannot be accepted as reliable and trustworthy. The reason is that PW2 has not given any evidence that she made such a statement after PW10 reached the scene of the incident. What PW2 has stated in the cross-examination is that when the appellant cut her, she cried aloud stating that Kurian (the appellant) cut. Admittedly, PW10 was not present at the spot of the incident when the appellant assaulted PW2 with the chopper. The trial court has misread and twisted the evidence of PW2 and PW10 to find that PW2 had made a voluntary statement that the appellant cut the deceased. PW10 has categorically stated on cross-examination that it was when he asked PW2 as to what happened that PW2 told him that the appellant cut the deceased. Therefore, it cannot be found that PW2 had made any voluntary statement that the appellant cut the deceased. At any rate, PW2 has not given any evidence that she made such a statement at the spot of the incident after ....
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....sons attacked him and as a result, he sustained injuries on his body. But he has specifically pleaded that he was not armed with any chopper. The suggestion made to PW1 in the cross-examination is that the deceased, armed with a chopper, had followed the appellant when he went out of the house of PW1 and that the deceased had entered into an altercation with the appellant. A suggestion on similar lines was made to PW2 and PW3 also in the cross-examination. 60. In this context it is to be considered whether the appellant had sustained any injuries during the incident that occurred. If the deceased had attacked the appellant with any chopper or other weapon, the appellant would have sustained severe injuries. But, there is absolutely no evidence to find that he had sustained any injuries which could have been caused by a sharp edged weapon. If he had sustained any such injuries he would have undergone treatment in a hospital. There is no medical evidence to find that the appellant had sustained injuries which could have been inflicted by a sharp edged weapon. 61. The appellant had surrendered before the court on 23.08.1999. Thereafter, on 03.09.1999, PW23 Circle Inspector had o....
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.... 64. It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the court as to the circumstances under which the occurrence originated. But before this obligation is placed on the prosecution two conditions must be satisfied: (1) that the injuries on the person of the accused must be very serious and severe and not superficial; (2) that it must be shown that these injuries must have been caused at the time of the occurrence in question (Jagdish v. State of Rajasthan : AIR 1979 SC 1010). It is not an invariable rule that the prosecution has to explain the injuries sustained by the accused. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubt. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of obligation of the prosecution to explain the injuries sustained by the a....
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....ate defence is available only to one who is suddenly confronted with the necessity of averting an impending danger which is not self created. Necessity must be present, real or apparent (See Laxman Sahu v. State of Orissa: AIR 1988 SC 83). True, there is evidence to find that there was wordy altercation between the appellant and the deceased. Ext.C1 certificate of chemical analysis of the viscera of the deceased would indicate that the deceased had consumed alcohol. But, the fact remains that the deceased was not armed with any weapon and that the appellant had no apprehension of death or grievous hurt being caused by the deceased. The appellant was the aggressor. Then he cannot claim right of self defence. The right to defend does not include a right to launch an offensive or aggression. In my view, the trial court has rightly rejected the plea of private defence of body made by the appellant. 68. The appellant had examined two witnesses on his side as DW1 and DW2. DW1 was examined by the appellant to prove that it was at the instance of the father of the deceased that the appellant had gone to the house of PW1 to settle the rape case registered against him. It is immaterial wh....
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....e evidence in the case reveals that when the appellant came out of the house of PW1 after the compromise talk and when he reached the pathway in front of the house, the deceased and other relatives of the victim of rape had reached there by following him. There is also evidence to find that there occurred wordy altercation between the appellant and the deceased at the pathway. Ext.C1 report shows that the deceased had consumed alcohol. It is probable that he was intoxicated. The trial court has already found that there was grave and sudden provocation from the deceased which might have deprived the appellant of the power of self control. The appellant was in the midst of persons who had a hostile attitude towards him. It was during the altercation that ensued between the appellant and the deceased that the appellant took out the chopper and inflicted the fatal injury on the deceased. There was only a single blow struck by the appellant on the deceased with the chopper. If these circumstances are taken into consideration as a whole, it can be found that the appellant had no intention of causing the death of the deceased or causing any injury as is likely to cause death. He had infli....