Babu @ Karithikeyan S/o Kandan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY, THE 21ST DAY OF JANUARY 2019 / 1ST MAGHA, 1940** ## **CRL.A.No. 736 of 2013** **AGAINST THE JUDGMENT IN SC 231/2009 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-I), PALAKKAD DATED 06-12-2012** ## **APPELLANT/ACCUSED:** **BABU @ KARITHIKEYAN S/O.KANDAN, AGED 35 YEARS, MATTUPARA HOUSE, NEMMARA,PALAKKAD.** **BY ADV. SRI.RENJITH B.MARAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2018, THE COURT ON 21.01.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.736/13 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This is an appeal filed by the accused in SC No.231/2009 of the Sessions Court, Palakkad by which he was convicted and sentenced to suffer imprisonment for life and to pay a fine of `1 lakh, on failure of which to suffer imprisonment for one year. 2. Prosecution alleged that a person named Sanal was murdered by the accused on 25/10/2008 at about 5.30 p.m. by inflicting 16 cut injuries with a chopper. The motive for the crime, according to the prosecution, was the enmity accused had against Sanal, who was having an affair with his sister and eloped together. In order to prove the aforesaid allegation, prosecution examined PW1 to PW33 and placed reliance upon Exts.P1 to P52. Other than marking a few contradictions, no other evidence was adduced by the defence. 3. The learned counsel for the appellant argued that the evidence adduced by the prosecution was not enough to implicate the accused and the Court below committed serious error in convicting the accused. The counsel also placed reliance upon the following judgments :- Crl.Appeal No.736/13 -:3:- (i) _**Suvarna D.D. and etc v. State of Maharashtra**_ (1994 KHC 2656) (Bombay High Court). (ii) _**Hukam Singh v. State of Rajasthan**_ [(2000)7 SCC 490]. (iii) _**Boddella Babul Reddy v. Public Prosecutor**_ [(2010) 3 SCC 648]. (iv) _**Golden Satheesan v. State of Kerala**_ (2012 KHC 25) Kerala High Court) (v) _**Prakash v. State of Karnataka**_ [(2014) 12 SCC 133] 4. On the other hand, learned Public Prosecutor while supporting the judgments argued that evidence in the case was sufficient enough to convict the accused and there is no reason why a different view should be taken in the matter. 5. Before proceeding further, it is useful to examine the evidence that had been adduced in the matter. 6. PW1 has given Ext.P1 First Information Statement on the basis of which Ext.P1(a) FIR was registered by PW31, pursuant to which the accused was arrested by PW31. In evidence, PW1 stated that the death of the deceased happened near Mattupara canal. He was coming back from a shop at Crl.Appeal No.736/13 -:4:- Nenmara. He saw the accused along with one Suresh and Giri, sitting on either side of the bridge. The accused was sitting alone on one side and the other two on the opposite side. When he reached near Uniyettan's house, he saw Sanal coming from the opposite direction. When he proceeded a little further, he heard the cry of Sanal. When he looked back, he saw the accused inflicting injuries on Sanal with a chopper. The accused was also threatening the others that “if you tell this to anybody else, this will be your end”. He further stated that the accused threw the chopper to a shruby area in the compound of the hospital. Thereafter the accused got into a bike and left the place towards his house. PW1 went to the house of Sanal and informed his mother, sister and their relative about the incident. His mother became unconscious. He came back near the bridge. A school vehicle came. Krishnankutty, the driver of that vehicle was also there. By the time, the police came with an ambulance and Sanal was taken to Hospital. PW1 went back home and later he had given the FIS. He further deposed that Sanal was having a love affair with (Praveena), the sister of accused. They were detained at Valayar Police Station. Members of the family of the couple Crl.Appeal No.736/13 -:5:- were called and they were sent along with them. According to him, the hate developed due to the love affair between the sister of accused and Sanal was the reason for committing the murder. The attempt of the defence was to indicate that PW1 is a witness who had been planted. During cross- examination, he stated that from the place where he saw Sanal (deceased), the house of Unniyettan was about 10 metres away. He further stated that he saw the incident when he reached 15 to 20 metres from where he heard the cry. At that time, there were about 5-8 persons on either side of the bridge. A contradiction was marked as Ext.D1. According to PW1, at the time of incident, there was drizzling, whereas in his statement given to police, he had stated that there was heavy rain. He further deposed that he reached the police station by 8 p.m. He was unable to state from which side the motor cycle had come. During re-examination, the material objects were marked. Chopper was marked as MO1, the pants worn by the accused was marked as MO2, his shirt was marked as MO3, Sanal's shirt was marked as MO4 and his pants was marked as MO5. Ext.D1(a) is another contradiction. In his previous statement, he stated that, in the locality the weapon will Crl.Appeal No.736/13 -:6:- be called as “വവെട്ടുകതത" (another form of chopper). The argument of the learned counsel was that Unniyettan's (Unnikrishnan) house was not at all near the place of incident. It was a far away place and therefore there is no possibility of PW1 hearing the cry of Sanal and he coming back to the scene of occurrence to witness the incident. That apart, it is contended that his evidence is not believable for want of details when it is compared with the other evidence in the case. 7. PW2 is Karthiyani. She is an eye-witness. She is the mother's elder sister of Sanal. She deposed that she was coming to the house of Sanal on the said date by around 5.30 pm to attend the engagement ceremony of Prema's son. She also wanted to enquire about the incident in which there was a police case in regard to Sanal and a girl in the locality. While she was walking behind the hospital road, she saw a person lying down and another person inflicting 5-8 injuries/stabs on him. She could not go towards the scene. The person who was inflicting the injuries was threatening those who crowded in that area. She went back to Sukumaran's house. His wife was there. She was shivering. She drank some water. At that time, she saw a few Crl.Appeal No.736/13 -:7:- persons standing on the other side of the bridge. She did not know who they were. She sat near Sukumaran's house for some time. At that time, an ambulance came and the injured was taken by the police. Thereafter she reached home. When she reached, they were all crying. PW2 informed them that she saw a person stabbing another person. They informed her that it was Sanal who was stabbed by the accused Babu. When she was asked she said she also saw CW1 near Unniyettan's house. Later she understood that Sanal died. She identified MO1. She further deposed that after the incident, accused got into a bike and proceeded towards his house. She also identified MO2 and MO3, dress of the accused and MO4 and MO5 dress of the deceased. Ext.D2 contradiction was marked. In her earlier statement before the Magistrate she had stated that, A2 got into a bike in which two persons were there, whereas before Court, she said that there was only one person. When she was asked whether Unni's house was beyond Muralidas's house and after the curve on the western side, her answer was that it is after Unni's house that the road proceeds towards west. She does not know whether the road curves after Muralidas's house. The main argument of the Crl.Appeal No.736/13 -:8:- defence with reference to PW2 is that she being a relative, she had been planted to prove the incident. She has no prior acquaintance with the accused in any manner. 8. PW3 is the cousin sister of Sanal. She spoke about the marriage between Sanal and the girl he loved and involvement of police and she stated that, after marriage, they went to the police station. Sanal had come to her house on the said day and they came together and got down at Nenmara. She also saw three persons in the canal bridge, two were sitting on the left side and one on the right side. The person who was sitting on the right side told Sanal that he would like to have a word with him and she identified him as the accused. Sanal told him that he will come back after keeping the bag at his house and they proceeded towards Sanal's house. When she asked Sanal who the other man was, he said that it was Praveena's (the girl he loved) brother. When she asked him whether he would do anything, he told her that he may not do anything, as everything was settled at the Police Station. Sanal kept the bag in his house and while he was leaving, his mother asked where he was going. He said he will come immediately. After some time Sankaran (PW1) came Crl.Appeal No.736/13 -:9:- and with much difficulty, he informed that Babu had stabbed Sanal. After some time, Karthiyani (CW2-PW2) also came. She also informed that she saw a person stabbing another and she could not identity who it was. After sometime, CW1-PW1 came and informed that Sanal was dead. She identified MOs 2 to 4. This witness had not seen the incident. She speaks about the fact that she saw the accused sitting near the canal bridge and she supports the fact that PW1 and PW2 were also there at the relevant time. Ext.D3 is a contraction which has been marked. During evidence, she stated that in an earlier statement she had not stated that Sanal was stabbed and killed. She had only stated that Sanal was stabbed. Another contradiction Ext.D3(a) was regarding the time. Before Court she said that PW1 came first at 5.30 p.m and thereafter by 6.00 p.m, whereas, before the Magistrate, she stated that he had come at 5.15. The crossexamination proceeded on the basis that no such incident had happened as stated by her. 9. PW4 is V. Babu. He was a Civil Police Officer. He deposed regarding the incident in which Sanal married Praveena. When his advice was sought, he asked them to report to the Crl.Appeal No.736/13 -:10:- Valayar Police Station. He also deposed that the police had called the parents of both the parties and they were sent along with them. He further deposed that on 25/10/2008 in the morning Sanal again called stating that their election ID card was in the police station and that he was going to take it. PW3 offered to collect it, but Sanal informed him that his bag is at Mema's (Aunt's) house and he had to take it also. Thereafter, at about 5.30 pm, PW3 called Sanal. Sanal informed him that he was going to Nenmara and he had reached the canal bridge. Babu and a few friends were sitting there and Babu wanted to talk to him. Thereafter, the phone was disconnected. Though he dialled again, ring was going, but nobody was picking up the phone. After half an hour, he called Nenmara police station to find out whether Sanal had come with a complaint. He got information about the incident immediately. Next day, he had gone to the District Hospital and saw the body. He had also given his mobile number and the mobile number of Sanal. The only omission that had been brought out is regarding the fact that when he called Nenmara Police Station, in his earlier statement he did not mention that the body was taken to District Hospital. Crl.Appeal No.736/13 -:11:- 10. PW5 is the brother of Sanal. He knew the accused. He also described about the incident in which Sanal married Praveena. He deposed that Babu had called Sanal earlier and threatened him that he will be killed. He got information about the same while he was at Chennai. But he did not inform this matter to anybody as he never thought that it was serious. He further stated that by evening 5-5.15, Sanal came back with Saranya (PW3). Sanal immediately left stating that he will come back soon. When he asked Sanal, he told him that Babu and two others were sitting near the canal bridge and they want to have a word with him on some matter. After Sanal had gone, CW1 had come and stated that Babu had stabbed Sanal. After some time, CW2 also came and informed that she saw Babu stabbing some person. He also identified MO4 and MO5, dress of Sanal. 11. PW7 is a witness to the seizure of chopper. He deposed that he is the cousin brother of Sanal. He also stated that there was blood stains and hair particles in the chopper. The seizure mahazar is marked as Ext.P5 and the chopper is identified as MO1. 12. PW8 is a witness to Ext.P6 inquest report. He also Crl.Appeal No.736/13 -:12:- identified MO4 and MO5. PW9 is a witness to Ext.P7. He turned hostile. PW10, PW11 and PW12 also turned hostile. 13. PW13 was the Assistant Director (Biology) FSL, Thiruvananthapuram. He had examined the hairs which were sent to him. He deposed that the hairs from item No.6 are human scalp hair, which are similar to the sample scalp hair in item No.7A. Ext.P11 is the report. 14. PW14 Dr.Hithesh Sankar conducted autopsy. He reported that there were 16 incised injuries on the deceased. According to him, the deceased died due to the injuries sustained to his head and neck and such injuries could be caused by a sharp weapon. He also deposed that injury Nos.1 and 2 are independently sufficient in the ordinary course of nature to cause death. The other injuries also could have contributed to the cause of death. Exts.P13 and P14 are the reports given by him. The ante-mortem injuries noticed by the Doctor in Ext.P12 are as under:- _1. Incised wound 13.5cm long, crescentic shape on back of head, with concavity upward, right end 5.5cm right to midline and 8cm above back of root of right ear. The occipital bone underneath found cut in its full thickness with bevelling upwards and inwards. The wound had cut the dura_ Crl.Appeal No.736/13 -:13:- _and also cut the occipital lobe of left cerebral hemisphere for 5 cm long and 2 cm deep with subarachnoid bleeding around. There were thin subdural bleeding on both cerebral hemisphere at its occipital lobes._ _2. Incised wound 10x5x6cm on the back of neck, transverse, right and 5 cm above root of neck and 5.5 cm outer to midline. The body of cervical vertebrae underneath (C4) found cut in its full thickness exposing spinal cord, which was also cut superficially for a depth of 0.1cm. The muscles, fibres (trapezius) and blood vessels were also fund cut._ _3. Incised wound 8x2x2cm on back of root of neck, transverse, right end 5 cm outer to midline and this injury was placed 1 cm below the injury No.2 with a tag of skin 5x1cm separating this injury from injury No.2_ _4. Incised wound 8 cm long on right side of back of chest, oblique, lower inner end at midline and 7cm below root of neck with tailing for 10cm from its lower inner end. The muscles, vessels, nerves and bones (scapula) underneath found cut for a depth of 4 cm._ _5. Incised wound 6cm long on back of right side of chest, oblique, lower right end merges with the lower right end merges with the lower margin of injury No.4 at its upper 1/3[rd] . The muscles, vessels, nerves and bone (scapula) found cut for a depth of 6 cm._ _6. Incised wound 2.5x1x0.8 long on back of right side of chest, oblique, lower end 9 cm outer to midline and 4cm below shoulder._ _7. Incised wound 4x1.5x2cm on back of right side of chest, oblique, upper inner end 5 cm outer to midline and 10cm below shoulder. The muscles, vessels and bone_ Crl.Appeal No.736/13 -:14:- _(scapula) underneath found cut for a depth of 2cm._ _8. Incised wound 2cmx1x1cm on back of right side of chest, oblique, upper inner end 7cm outer to midline and 12 cm below shoulder._ _Injury No.4 to 8 were placed over an area 10x9cm on back of right side of chest over the shoulder girdle._ _9. Incised wound 4.5x2.5x1cm on back of left side of chest oblique, upper inner end 9cm outer to midline and 4cm below shoulder with tailing for 10cm from the same end. Underneath this the muscles, vessels and bone (scapula) found cut for a depth of 2 cm._ _10. Incised wound 5x2x1cm on back of left side of chest oblique, upper inner end 7cm outer to midline and 10cm below shoulder with tailing 3cm from its outer end. 11. Two superficial incised wounds 10cm and 7cm long on back of chest, over an area 12x1.5cm one below the other 1cm apart in between injuries on left and right side of back of chest._ _12. Incised wound 7x2x1.5cm on outer aspect of right side of chest, oblique, front end 14cm below armpit with tailing for 19cm from its back end._ _13. Incised wound 4.5x2x2cm on back and inner aspect of right arm, back end 14cm below shoulder. The muscles underneath found cut for a depth of 2cm._ _14. Incised wound 13cm long on back and outer side of right thigh, lower margin 15cm above knee. The muscles, vessels and nerves underneath found cut for a depth of 5cm. Bone intact._ _15. Incised wound 10cm long on back and outer side of right thigh 2cm above injury No.14. The muscles, vessels and nerves underneath found cut for a depth of 4cm. Bone intact._ Crl.Appeal No.736/13 -:15:- _16. Superficial incised wound 2cm on back of left shoulder.”_ 15. PW15 was the Assistant Sub Inspector of Police during the relevant time. He is a witness to Exts.P15 to P32. 16. PW16 was a witness to prove seizure of dress of accused. He turned hostile. PW17, Krishnan is a driver and he knew Sanal. He saw Sanal lying dead while he was returning home after a school trip on 26/10/2008. He was coming back to his house by about 5.30 and he saw a person lying by the side of the canal bridge. When he went there, he found that it was Sanal. He went to the police station immediately and informed the matter and police came in an ambulance and Sanal was taken to the hospital. He did not see anybody. He stated that he had not given any statement to the police. He was therefore declared hostile and cross-examined. 17. PW20 has identified Ext.P28 series. PW21 has identified Ext.P30 which is the lab report relating to the blood sample of the accused. Ext.P30 shows that his blood group is O+ve. PW22 who was supposed to be a witness to Ext.P37 scene mahazar has turned hostile though he admitted his signature in the document. He stated that he had not seen police preparing Crl.Appeal No.736/13 -:16:- the scene mahazar in the scene of occurrence. PW23 is the photographer who had taken Ext.P21 series photographs. He is a witness to Ext.P30. PW24 is another photographer. He identified Ext.P19 photograph. 18. PW25 had seen the accused on 25/10/2008 by about 5.30 pm going towards PWD rest house in a motorbike driven by Ratheesh. 19. PW26 is a photographer who had taken Ext.P17 series photographs. PW27 is a Police Constable who is a witness to seizure mahazar relating to the seizure of the motorcylce. Ext.P38 is the said mahazar. He is also a witness to Ext.P43 seizure mahazar by which the call details Exts.P25 series and P26 series were collected. PW28 is a Police Constable of Nenmara police station who was in GD Charge duty on 25/10/2008. He deposed that CW21 (PW17) came running to the station and informed that near Mattupara canal bridge, Shanmugan's son Sanal is stabbed and lying there. PW28 along with CW45 called an ambulance and proceeded towards the scene. On the eastern side of the canal bridge, they saw a person aged about 20 years lying severely injured on his head, back, neck and right leg lying face down. Crl.Appeal No.736/13 -:17:- They thought that he was alive. He along with CW45, ambulance driver and CW21 along with another person took him in a stretcher to the ambulance and he was taken to Nenmara hospital. Doctor on examining him informed that he was dead. Since there was no mortuary, as instructed by the Doctor, the body of deceased was taken to District Hospital in the same ambulance. 20. PW29 is a Police Constable. He had handed over the viscera and other objects to CW56 in a cover. PW30 is the Village Officer who prepared Ext.P39 site plan. He deposed that Ayyappan's house was 75 metres away from the scene and beyond that on the south was Muralidas's house. After that house, there is a slight curve towards the west. 21. PW31 was the Sub Inspector of police on 25/10/2008. He had recorded the FIS and registered Ext.P1(a) FIR. He also stated that on instructions form the Circle Inspector of Police, the accused was arrested at 12.30 pm from Palakkad KSRTC Bus stand. Ext.P40 is the arrest memo. He also marked Ext.P41 the intimation notice and Ext.P42 inspection memo. During crossexamination he stated that case was registered at 8.30 and on Crl.Appeal No.736/13 -:18:- the same day, FIR was sent to the court and senior officers. FIR reached the Court on 26/10/2008 at 2.10 pm as evident from the endorsement. According to him, he had entrusted a police officer to take it to the Magistrate. He also stated that there was no injury on the accused. The suggestion was that FIR was prepared only on 26/10/2008 by noon, which he denied. 22. PW32 was a Junior Sub Inspector of Police at Valayar Police Station on 24/10/2008. He deposed regarding the incident in which Sanal and Praveena had approached the police and they informed him that they had married at Muniyappan kovil. They were afraid of Praveena's brothers and they intended to go to some other place. He further deposed that he enquired about them at Nenmara police station, called the relatives of the couple and it was mutually agreed that the marriage will be conducted after Sanal's studies. Both the parties agreed and they had given it in writing. The matter was recorded in the GD and copy of the GD entry is marked as Ext.P32 and the statement of the parties were recorded as Ext.P33(a). 23. PW33 is the investigating officer who had spoken in terms with the investigation conducted by him. Crl.Appeal No.736/13 -:19:- 24. As already mentioned, the main contention urged by the learned counsel for the appellant is that there is no independent evidence to prove the crime. Of course, the witnesses who are alleged to have seen the incident are relatives of the deceased. Several other witnesses turned hostile to the prosecution. But, PW1's evidence is in a way supported with clarity by PW2, PW3 and PW5. One of the main contention urged is that in his evidence, he states that from the place where he saw the incident, Shanmugan's house (house of Sanal), it will take 10 minutes. Unni's house is on the way. From Unni's house, Shanmugan's house is only 100 metres. It is stated that if one takes 10 minutes to reach Shanmugan's house, the distance is not 10 metres, it will be far away. But where exactly is Unni's house and what is the distance from the place of occurrence to Unni's house or to the house of Shanmugam cannot be discerned from the site plan. We have only the evidence of PW1 who says that he has seen the incident. His evidence is supported by PW2, Karthiyani who also saw the accused stabbing a person near the canal bridge. That apart, PW1 goes to the house of Sanal and informs them immediately about the incident and PW3 and PW5 Crl.Appeal No.736/13 -:20:- have spoken to the said fact. PW3 had seen the accused while she and Sanal were coming back to Sanal's house from Nenmara junction after alighting from a bus and accused told Sanal that he would like to have a word with him. Sanal goes to his house, informs his mother and sisters that Babu wants to have a word with him and he will come back immediately. The aforesaid evidence of PW1, PW3 and PW5 that Sanal left the house to meet Babu is a believable version. The said version is supported by PW4, who was talking to Sanal over phone. Once the said incident is believed, the evidence of PW1 is also believable. So is the evidence of PW2. The fact that police had come in an ambulance and had taken the deceased to the Taluk Hospital is also a proved fact. That the deceased died on account of the injuries as spoken to by PW14 is also a proved fact. The cause of death is due to the injury sustained on the head and chest and the other injuries were also the contributing factor. 25. Of course, all the witnesses who had spoken about the aforesaid incident are relatives. The persons other than the relatives turned hostile. Some of the witnesses who had turned hostile are the near relatives of the accused as well. Crl.Appeal No.736/13 -:21:- 26. Another corroborating factor is the recovery of the murder weapon. PW1 of course has stated that the accused threw the chopper into the hospital compound. There is no explanation, why the police did not search the said area. PW7 has spoken about the recovery of the chopper at the instance of accused. Even if recovery cannot be treated as one under Section 27 of the Evidence Act, nevertheless it proves the conduct of the accused. 27. Ext.P11 is the FSL report. Item No.6 is the metallic chopper with wooden handle. It had dark brown stains and several hairs were found adhered on the blade. It is reported that the hairs collected from the metallic chopper and the sample human scalp hairs of the deceased in two unsealed packets were forwarded to the Biology Division. The Biology division had reported that the hairs from item No.6 are human scalp hairs which are similar to the sample scalp hairs in item No.7(a). Short hairs found adhered on the chopper in item 6 and Item No.7(a) were sample scalp hairs. The FSL report further indicates that blood was noticed in all the material objects. The blood stains on item Nos.1 to 6 were found belonging to O group. Those items Crl.Appeal No.736/13 -:22:- were the dress of the accused as well as that of deceased and the chopper. Item Nos.7(b) and 7(c) which were nail clippings contained blood, but it was not sufficient to determine the origin. The blood sample of the accused was also collected and analysed as evident from Ext.P30 certificate. Blood group of the accused was also O+ve. But, there is no evidence whatsoever to prove that the accused suffered any injury at all. Necessarily, the origin of the blood in the chopper as well as in the dress of the accused is from the deceased. Of course, the witness who was examined to prove the recovery of the dress of accused turned hostile. But the dress of accused had been identified by PW1 and PW2. Therefore, we are of the view that the scientific evidence in the form of FSL report and the oral testimony of witnesses read along with the recovery of murder weapon and the conduct of the accused in showing the place from where he had thrown the weapon are clinching evidence, by which prosecution was able to corroborate the testimony of eye-witnesses. 28. Coming to the judgments that had been relied upon, _**Boddella Babul Reddy**_ (supra) was cited to emphasise the point that though the police had information about the crime prior to Crl.Appeal No.736/13 -:23:- PW1 giving the statement to the police, the police ought to have registered FIR then and there. It is in evidence that PW17 had gone and informed the police about the crime. No GD entry had been made and FIR was not registered. It is thereafter that the FIR was registered at 8 p.m and it reached the Magistrate only the next day at 2.10 p.m. Therefore, according to the learned counsel for the appellant, there is every chance of manipulation of records and the FIR was subsequently created. The information had reached the police even before PW1 giving a statement. The law is very clear in this regard. S.154 of Cr.P.C. clearly provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing or under his direction. But, in this case, when PW17 had gone to the police station and the matter was informed to the police officers who were available there, they immediately called an ambulance and proceeded to the scene which apparently indicates that they primarily thought to save the victim somehow or other. The accused does not have a case that the information was given to the Station House Officer. Therefore, in so far as the information was not given to Crl.Appeal No.736/13 -:24:- the Station House Officer, a contention that FIR ought to have been registered the moment the information was received in the Police Station cannot be accepted. In the case cited by the learned counsel for appellant, it was held that if it is proved that the FIR was given with the consultation of persons who are on inimical terms towards the accused or on account of political rivalry, the prosecution version becomes suspicious. In the case on hand, the only factor that can indicate some suspicion is the deposition of relatives. There is no hard and fast rule that the evidence of relatives cannot be taken. Their credibility has to be tested before Court. If they are found to be credible witnesses, there is nothing wrong in the Court believing their version. Secondly, their version is supported by the recovery of the chopper at the instance of the accused and also the scientific evidence by which it is proved that the said chopper had been used for commission of the crime and the blood of the deceased was found in the dress of the accused as well. Therefore, we do not think that delay on the part of the police in registering an FIR and a short delay in sending the same to the Magistrate had caused any prejudice to the accused. Crl.Appeal No.736/13 -:25:- 29. In _**Golden Satheesan's case**_ (supra), a Division Bench of this Court was considering the impact of evidence of partisan witnesses. We have no doubt about the proposition that the evidence of partisan witnesses are to be considered with great caution. But, the appreciation of evidence depends upon a case to case basis and merely on account of the fact that they are partisan witnesses by itself is not enough to discard their evidence. Two aspects are required to be considered. One is that their evidence should be tested before Court and the Court should have confidence in their evidence in order to believe their version. Secondly, their evidence can be corroborated by other circumstances. 30. Learned counsel also placed reliance on judgment in _**Hukam Singh**_ (supra) only for the proposition as to how the evidence of interested witnesses are to be appreciated. In _**Hukam Singh**_ (supra), the learned counsel relied upon paragraphs 13 and 14 in order to contend that though certain independent witnesses were cited, they were not examined. When persons who are not relatives of the deceased are also cited as witnesses, the prosecution ought to have examined Crl.Appeal No.736/13 -:26:- them. However, the Apex Court in the very same judgment relied upon a 4 Judge bench decision of the Apex Court in _**Masalti v. State of U.P.**_ (AIR 1965 SC 202), wherein it is held as under:- _“It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court.”_ 31. Judgment of the Bombay High Court in _**Suvarna D.D**_ (supra) has been cited wherein also a Division Bench of the Bombay High Court held that while evaluating the evidence of a near relation, the settled norms of appreciation of evidence require that the evidence of interested witnesses is to be assessed with caution. If there are several infirmities in their evidence and if the Court finds that the witnesses who have seen the incident is doubtful and that he is a trumped up or passive witness, his evidence has to be rejected. 32. In this case, even assuming that the eye-witnesses are relatives of the deceased, their evidence is corroborated by the testimony of other witnesses and the circumstances proved in the case. Crl.Appeal No.736/13 -:27:- 33. Learned counsel for the appellant has a contention that the presence of the blood on the dress of the accused and the taking of sample of hair is doubtful. It is contended that in the 313 statement, the only question put to the accused was regarding the report Ext.P11 and the contents of the said report was not put to the witness. Ext.P11 is a report of FSL which is admissible in evidence u/s 293 of the Criminal Procedure Code. In so far as it is evidence before Court, the report has to be treated as proved. When the accused is questioned, explanation was sought regarding Ext.P11. 34. In _**Prakash's case**_ (supra), one of the questions considered was whether the serological report had been put to the accused in the statement recorded u/s 313 Cr.P.C. After referring to the judgment in _**Tara Singh v. State**_ (1951 SCR 729), it was held that an accused must be given a chance to offer an explanation if the evidence is to be used against him and the conviction is intended to be based upon it. It follows that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him. In _**Prakash**_ (supra), Crl.Appeal No.736/13 -:28:- it was held that a serological comparison of the blood of Gangamma and Prakash and blood stains on his clothes was necessary, whereas it was absent from the evidence of the prosecution. In the present case, Ext.P11 report was put to the accused. The contents of Ext.P11 was very much known. Therefore, the accused got an opportunity to explain the correctness or otherwise of Ext.P11. In _**Prakash's**_ case (supra), the factual situation was totally different. It was observed that report received from the FSL was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. Subsequently contention was raised that the report of the Serologist was not put to the accused. The High Court while considering the said contention had observed that even assuming that the report of the Serologist had not been put to the accused, the same cannot be fatal as no prejudice had been caused to the accused. In that case, the High Court asked the learned counsel for appellant, his opinion about the report. This procedure, according to the Apex Court, was not correct. In the case on hand, we do not have such a situation as the report was put to the accused for his explanation and he had nothing to Crl.Appeal No.736/13 -:29:- state. 35. It is settled law and as reiterated by the Apex Court in _**Narsingh v. State of Haryana**_ [(2015) 1 SCC 496], that the FSL report which has been relied upon by the Trial Court as well as by the High Court has to be put to the accused during examination u/s 313 Cr.P.C. Still further, it has to be seen further that if any prejudice has been caused. But, as already stated, in this case, the accused while being examined was asked to explain about Ext.P11 for which he had no answer. Learned counsel contended that the contents of Ext.P11 was not put to the accused. We do not think that failure to put the contents of Ext.P11 to the accused would prejudice him in any manner. If the report is disputed by the accused, he gets an opportunity to challenge the same by summoning the expert, who had issued the FSL report. No such attempt had been made in the case on hand. Therefore, we do not think that the said contention is in any way sustainable. 36. Even otherwise, evidence of the eye-witnesses having withstood the cross-examination and having found to be credible taking into account other circumstances including recovery of the Crl.Appeal No.736/13 -:30:- murder weapon at the instance of the accused, and on the basis of his statement by itself is enough to implicate the accused for the aforesaid crime. Having regard to the aforesaid discussion, we are of the view that the trial Court had not committed any error in convicting the accused. Substantial injuries had been inflicted on an young person. The motive with reference to the aforesaid crime has been very clear. The deceased had a love affair with Praveena, sister of the accused and they eloped. Apparently, the accused did not like their relationship, which prompted him to commit the murder. Accused does not deserve any sympathy and the punishment imposed is commensurate with the crime he had committed. The appeal is hence dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE Sd/-** **A.M.BABU** Rp //True Copy// PS to Judge **JUDGE**