Saju S/o Ramachandran and others v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** **CRL.A.No.819 OF 2015** **CP 4/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOTTARAKKARA SC 247/2007 DATED 07-08-2015 OF ADDITIONAL DISTRICT & SESSIONS COURT - VI, KOLLAM** **CRIME NO.25/2005 OF Chadayamanagalam Police Station , Kollam** ## **APPELLANT/ACCUSED NO.1** **SAJU S/O.RAMACHANDRAN, SYLAJA VILASAM, THACHAKKONAM PILGIRI, KOTTUKKAL VILLAGE BY ADVS. SRI.B.DIPU SACH DEEV SRI.ARUN BABU** ## **RESPONDENT/COMPLAINANT** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, 682031** ## **OTHER PRESENT:** **SRI. S.U.NAZAR (SR.PP)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2021, ALONG WITH CRL.A.838/2015, CRL.A.883/2015, CRL.A.931/2015, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:** Crl.A.No.819, 838, 883 & 931 of 2015 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** **CRL.A.No.838 OF 2015** **SC 247/2007 DATED 07-08-2015 OF ADDITIONAL DISTRICT & SESSIONS COURT - IV, KOLLAM CRIME NO.25/2005 OF Chadayamanagalam Police Station , Kollam** ## **APPELLANT/2ND ACCUSED** **HARILAL S/O PARABHAKARAN PILLAI, VIJAYA VILASAM. KOTTUKKALMURI, KOTTUKKAL VILLAGE** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.M.M.DEEPA SRI.VIPIN NARAYAN** ## **RESPONDENT/COMPLAINANT** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA , ERNAKULAM** **SR.PP SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-032021, ALONG WITH CRL.A.819/2015, CRL.A.883/2015, CRL.A.931/2015, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:** Crl.A.No.819, 838, 883 & 931 of 2015 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** ## **CRL.A.No.883 OF 2015** **CP 4/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,KOTTARAKKARA** **SC 247/2007 DATED 07-08-2015 OF ADDITIONAL DISTRICT & SESSIONS COURT - VI, KOLLAM** **CRIME NO.25/2005 OF Chadayamanagalam Police Station , Kollam** ## **APPELLANT/ACCUSED NOS.3 AND 4** **1 SIVARAMAN @ UNNI S/O.GOPALA PILLAI, CHELAPPALLIYIL VEEDU, KOTTUKAL MURI, KOTTUKKAL VILLAGE, KOLLAM DISTRICT.** - **2 SANTHOSH** **S/O.PRASANNA, THEKKADATH VEEDU, THANGODE, KOTTUKAL MURI, KOTTUKKAL VILLAGE, KOLLAM DISTRICT.** ## **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT/STATE/COMPLAINANT** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI.S.U NAZAR, SR.PP.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-032021, ALONG WITH CRL.A.819/2015, CRL.A.838/2015, CRL.A.931/2015, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:** Crl.A.No.819, 838, 883 & 931 of 2015 4 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943 CRL.A.No.931 OF 2015** **CP 4/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,KOTTARAKKARA SC 247/2007 DATED 07-08-2015 OF ADDITIONAL SESSIONS COURT - VI, KOLLAM** **CRIME NO.25/2005 OF Chadayamanagalam Police Station , Kollam** ## **APPELLANT/ACCUSED NO.5** **JAYAPRAKASH @ UNNI AGED 37 YEARS S/O GOPALAKRISHNA PILLAI, PARAMBILVEEDU, (SREEKRISHNAVILASAM VEEDU) HOUSE KOLLAM DISTRICT,.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN SRI.AJEESH K.SASI SRI.V.C.SARATH SMT.POOJA PANKAJ SRI.THOMAS J.ANAKKALLUNKAL SRUTHY N. BHAT** ## **RESPONDENT/COMPLAINANT** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **SRI.S.U.NAZAR, SR.PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-032021, ALONG WITH CRL.A.819/2015, CRL.A.838/2015, CRL.A.883/2015, THE COURT ON 24-03-2021 DELIVERED THE FOLLOWING:** Crl.A.No.819, 838, 883 & 931 of 2015 5 ## **JUDGMENT** ## **Dated : 24[th] March, 2021** ## M.R.Anitha, J. 1. These appeals are filed by accused Nos.1 to 5 in S.C.No.247/2007 on the file of the Additional District and Sessions Court-VI, Kollam. 2. Prosecution case can be summarized as follows: Radhakrishna Pillai, the victim was a non-resident who used to hire the autorickshaw of the first accused whenever he comes home on leave. When he came home, at this particular instance, he did not hire that autorikshaw, for reason of which first accused had enimity towards him. Out of that enmity, on 14.01.2005 at 7 p.m first accused came to the shop of PW1, the brother of the deceased and there was an altercation between the first accused and PW1. On the same day at 8 p.m first accused came again and abused PW1 and his brother. Later at 8.15 p.m the first accused along with the other accused, in furtherance of their common object to assault PW1 and to do away with the deceased, Crl.A.No.819, 838, 883 & 931 of 2015 6 trespassed into the varandah of the shop of PW1 bearing No.III of 214 of Velluva Panchayath. Accused No.2 to 10 hit PW1 and deceased with hand and first accused stabbed the deceased with MO1 knife repeatedly on his chest on the left side and abdomen. The injured was taken to the Medical College Hospital, Thiruvananthapuram and was declared dead at 10.30 p.m. 3. PW1 lodged the FIS at 1 a.m on 15.01.2005 and PW17 the Sub Inspector of Police, Kadakkal Police Station registered the FIR and conducted initial investigation. PW19, the Circle Inspector of Police, Kadakkal took over and conducted major part of investigation. Pw18 conducted a part of investigation and Pw20 verified the records and filed the Charge Sheet against the accused. 4. On the side of prosecution, PWs 1 to 20 were examined and Exts.P1 to P48 were marked and MOs 1 to 14 were identified and marked. Exts.D1 to D4 were marked from the side of defence. Thereafter, on hearing both sides, learned Additional Sessions Judge acquitted accused Nos. 6 to 10. Accused Nos.1 to 5 - the Crl.A.No.819, 838, 883 & 931 of 2015 7 appellants in these appeals were found guilty and convicted and sentenced u/s. 143, 147, 148, 323, 448 and 302 r/w.149 IPC. Accused No.1 is further convicted and sentenced u/s.294(b) also. Assailing the conviction and sentence the appellants came before this court. 5. Notice was issued to the respondent and the respondent appeared through learned Senior Public Prosecutor Sri. S.U. Nazar. Lower court records were called for and perused and both sides were heard. 6. The learned counsel for the 1[st] accused would contend that time of death in the FIS is stated as 18.30 hours . In the court charge, the time is stated as 7 p.m, which is not consistent with the FIR and FIS. No incident happened at 8 O' clock as Charged by the Court and the incident occurred was not as alleged by the prosecution. The FIS though seen to have been recorded at 1.00 hours, PW1, the informant deposed that he gave the FIS at 5.00 a.m. PW17, S.I, stated about the inspection of the scene of occurrence before recording the FIS, but no GD entry was made and FIR Crl.A.No.819, 838, 883 & 931 of 2015 8 also not registered at that point. The evidence of PW1 and PW2 are not reliable and the prosecution case that PW2 snatched the knife from the first accused is against normal human conduct. There is no evidence as to how MO1 knife came to the hands of the first accused. Prosecution could not prove that MO1 is the weapon used for the commission of offence. Though PW1 and 2 went to the police station on 15.01.2005 and intimated about MO1, the seizure of MO1 knife was only on 16.1.2015. Though FSL report states about the presence of human blood, in the property list Ext.P28 there is no mention regarding blood stains on MO1. PW1 though stated to have taken the bleeding victim to the hospital from where he directly came to the police station, there was no blood smeared on his dress as per the body note recorded in the FIS itself, which is highly improbable. PW1 according to the first accused was not available in the scene of occurrence. The prosecution suppressed the fact of taking the deceased to the hospital at Venjaramood, as spoken of by PW1 and no investigation was conducted in that regard. It has Crl.A.No.819, 838, 883 & 931 of 2015 9 been admitted by PW1 that he gave a statement to the Circle Inspector regarding the words uttered by the deceased on being stabbed, that ' _these people stabbed him' - “_ §ÕzÞV ®æK µáJß”. This would indicate involvement of more persons than the first accused in inflicting the stab injuries. Apart from close relatives no independent witnesses were cited by the prosecution. Motive alleged is so feeble and is not believable. Though prosecution claimed to have conducted search in the house of accused on 15.01.2005. MOs 7 and 8 could not be seized. So the evidence brought in by Ext.P12 (a) the alleged disclosure statement of the first accused is highly suspicious. The whole prosecution case is doubtful, the benefit of which is to be given to the accused, the learned counsel contends. On behalf of accused Nos.2 to 5 it was contended that there is no incriminating evidence against any of them and they ought to have been acquitted along with accused Nos.6 to 10. 7. Learned Public Prosecutor on the other hand contended that evidence adduced through PWs 1 to 3 - the ocular witnesses, coupled with medical evidence and Crl.A.No.819, 838, 883 & 931 of 2015 10 scientific evidence prove the case against the accused persons and no interference is called for. 8. Prosecution mainly relied on the evidence of PWs 1 to 3 to prove the incident. PW2 though turned hostile he supported the prosecution in certain aspects. 9. PW1 lodged the FIS who is none other than the brother of the deceased. He is conducting a provision shop belonging to his deceased brother and the varandah of the shop is the place of occurrence. He narrates the incident which occurred at 7 p.m when the first accused (hereinafter be referred as accused) came to his shop and abused him. At around 8.00 p.m the deceased came to the shop. Accused again came at 8.15 p.m along with other accused, when the deceased was also present and again abused PW1 when deceased intervened. Then accused kicked the deceased and stabbed him with MO1 knife on his chest and abdomen four times. PW2 came and snatched the knife from first accused thereby sustaining an injury. Thereafter, the accused went in KL-25-6835 autorickshaw. Deceased was not hiring the autorikshaw of Crl.A.No.819, 838, 883 & 931 of 2015 11 the accused was the motive according to PW1. PW2 also sustained injury and went to the hospital. Ext.P1 FIS was marked through him. 10. PW2 is conducting a bunk-shop at Kottukkal junction. Ext.P2 search list was marked through him and he admitted that MO1 is of his shop, but further he was not prepared to support the prosecution and hence declared as hostile and cross-examined by the Public Prosecutor. He admitted during cross-examination by the prosecutor that he snatched the knife near the shop of PW1 from the accused. 11. PW3 is the brother-in-law of the deceased. He is conducting a hardware shop by name Karthika Agencies which is situated on the eastern side of the shop of PW1. He was standing in front of his shop at 7 p.m and saw the incident and deposed in corroboration with PW1 except with regard to the involvement of accused Nos.2 to 10. On that aspect he was declared hostile and was examined by the Prosecutor. 12. PW4 did not support the prosecution case and was Crl.A.No.819, 838, 883 & 931 of 2015 12 declared hostile. But he admitted during crossexamination by the prosecutor that while standing at the junction he saw a crowd in front of the shop ofPW1. It was also stated that PW2 handed over a knife to him, asking him to keep it and this knife was put back by him in the shop of PW2. But he was not prepared to admit whether the knife shown to him was the one entrusted by PW2. He too was declared hostile. 13. Evidence of PW11 the Doctor who conducted postmortem and Ext.P11 the postmortem certificate would prove the corresponding three incised penetrating wounds and one incised punctured wound. Injury No.1 is incised penetrating wound 3.4x1 c.m. on the front of chest its lower end sharply cut and was 3 cm to the left of midline and 8.5 cm below collar bone. The 2[nd] injury is incised punctured wound 3.5 x 1x4.5 cm oblique, on the left side of chest, its lower inner sharply cut end being 14.5 cm to the left of midline and 23 cm below collar bone. Injury No.3 is incised 2.5 x 1 cm oblique, on the left side of chest. Its upper front sharply cut end long 15 cm below the back fold of armpit. The 4[th] Crl.A.No.819, 838, 883 & 931 of 2015 13 injury is incised penetrating wound 5.5 x 2.5 cm oblique on the abdomen and its lower inner sharply cut end being 7.5 cm to the left of umbilicus. The doctor opined that the cause of death is penetrating injuries sustained to chest and abdomen i.e. injury Nos.1,3, & 4 and further that injury No.1 is independently sufficient in the ordinary course to cause death. Ext.P48 chemical examiner's report of the blood sample of deceased would prove that no poison was detected in the sample blood. It would rule out the possibility of death due to poisoning. Hence the evidence of PW11 and Ext.P11 postmortem certificate prove that the deceased had a homicidal death. 14. Discrepancy with regard to the time in the FIS and FIR is the first contention advanced by the learned counsel. In FIS time of death is stated as 6.30 pm. But court charge states the time at 7.00 pm and subsequent incident at 8.00 pm and a later incident when the murder occurred. There is no incident as alleged by prosecution which happened at 8 'O' clock, is also the contention. PW17 - the Sub Inspector, who registered the FIR Crl.A.No.819, 838, 883 & 931 of 2015 14 admitted that it has been recorded in Ext.P1 that the death was at 18.30 hours on 14.01.2005. But he clarified that it has been further recorded that the 1[st] incident occurred at 7 p.m. So the time stated as 18.30 hours in the FIS and FIR appears to be a mistake. It is also contended by the learned counsel that there is no possibility of PW1 giving FIS at 1.00 hours on 15.01.2005 since he stated during cross-examination that after the declaration of the death of the brother at the Medical College Hospital, he remained there for five hours and it is after five hours of death that he reached at Kadakkal. The death was at 10.30 p.m and upto 3.30 a.m he was in the hospital, 1½ hours will be taken for reaching Kadakkal from Medical College Hospital. He admitted to have given the statement to the Kadakkal Police at 5 a.m. Some discrepancy with regard to the time of giving the FIS is there in the evidence of PW1. But on further cross-examination he clarified that he had given the statement during night. In this context it is also to be noted that PW2 categorically stated during cross-examination by the learned Public Prosecutor that Crl.A.No.819, 838, 883 & 931 of 2015 15 he went to Kadakkal Police Station at about 01.00 hrs and PW1 was present with him and Pw1 narrated the incident to the police. So the prosecution case that PW1 had gone to Kadakkal police station at 01.00 a.m and gave the FIS stands corroborated with the evidence of PW2. So the factors brought out during cross-examination of PW1 that he remained in the hospital for five hours and it is after that he had gone to Kadakkal Police station is an inadvertent mistake. This is clear because PW1 himself clarified on further cross-examination that he has given the FIS during night and the first statement was at 01.00 a.m. So the registration of FIR is properly proved. True the charge speaks of an incident at 8.00 pm, but the evidence does not disclose any such incident. However that does not cause any prejudice to the accused since there is no separate offence charged on that count and there cannot be raised any ground of failure of justice only by reason of such an irregularity that occurred when framing the charge. 15. PW17 the Sub Inspector admitted to have gone to the place of occurrence prior to the registration of FIR on Crl.A.No.819, 838, 883 & 931 of 2015 16 getting information, but he did not make any G.D. entry and FIR was also not lodged and that according to the counsel has caused serious prejudice to the accused. He placed reliance on Sevi and Another v. State of Tamil Nadu and Another [1981 (Supp) SCC 43] wherein it has been held that even if the police officer is not satisfied of the information given about the commission of cognizable offence he should make an entry in the general diary and proceed to the place of occurrence and record a complaint from someone who is in a position to give such a report about the commission of offence. But in that case the FIR book which was alleged to have been taken by the Sub inspector could not be produced by the prosecution in spite of the steps taken for production of the same. It was in that context that the argument of the defence that the original FIR has been suppressed and in its place some other document has been substituted was accepted. In the present case though PW17 admitted that he got an information in the police station before recording the statement of PW1 and he had gone to the scene of occurrence his evidence was that he Crl.A.No.819, 838, 883 & 931 of 2015 17 had not questioned anybody. No attempt was also made by the defence to bring out that anybody was present at the spot for giving any information. So the fact that PW17 did not register the FIR or make an entry in the G.D. before proceeding to the place of occurrence by itself cannot be sought in aid by the accused to create any doubt by contending that original FIR has been suppressed and prejudice has been caused to the accused. In all probability information having been received of an altercation the Station House Officer would have carried out a surveillance, by which time the crowd had dispersed. There would have been none available to give an account of the crime. 16. According to the learned counsel the case of the prosecution that PW2 snatched the knife from the accused is highly improbable and it is against normal human conduct. But PW1 and 3 deposed in corroboration that PW2 snatched the knife from the first accused and they also stated that during its course PW2 sustained an injury. PW2 admitted in chief examination that he knew that the knife MO1 was taken from his shop but later Crl.A.No.819, 838, 883 & 931 of 2015 18 turned hostile. During cross-examination by the Public Prosecutor he stated that when he knew the knife was taken from his shop he ran towards that direction. When he reached he saw the knife in the hands of the accused. He snatched the knife from the hands of the accused, with his left hand. Since he did not want to loose it he entrusted the knife to Murali (PW4). The conduct of PW2 snatching the knife cannot be challenged as an unnatural conduct. A person witnessing the stabbing of another or even when confronted with a man stabbed and another holding a knife, may instinctively snatch the knife from the hands of the assailant to prevent further injury. He may also hand over the knife for safe keeping to yet another known person, when he realizes that the weapon belongs to him. There is nothing unnatural in such conduct. 17. PW10 is the Doctor who examined PW2 with the alleged history of sustaining injury while trying to intervene, after accused stabbed the deceased. The injury noted by him is 10 cms long incised wound on the back of the left little finger and according to the Doctor, the injury Crl.A.No.819, 838, 883 & 931 of 2015 19 could be caused as alleged. Though attempt was made to discredit the evidence of Doctor by challenging that the injury can be caused only to the right hand, when one tried to intervene or rescue the victim, PW10 stoutly denied that suggestion. Hence the fact that PW2 sustained injury during the course of snatching MO1 from 1[st] accused is a very important circumstance against the accused, which fact was spoken of by the witness and stands corroborated by the evidence of PW10. 18. PW2 and PW4 having been declared hostile by itself will not efface their entire evidence. The deposition of hostile witness to the extent it supports the prosecution case can be relied upon. (Manoj Suryawaushi v. State of Chattisgarh – AIR 2020 SC 3863). It has been held in Dev Ray v. State of Chattisgarh – AIR 2016 SC 3498) that evidence of a hostile witness can be relied if there are some other material on the basis of which said evidence can be corroborated. 19. The fact that the knife was taken from PW2's shop, which was later seen in the hands of accused when PW2 Crl.A.No.819, 838, 883 & 931 of 2015 20 reached the spot hearing a commotion and that PW2 snatched it from the accused, sustaining an injury and handed it over to PW4 comes out from the testimony of PW2 itself. PW4 admits the knife having been handed over to him by PW2, which he replaced in the shop of PW2. The knife which was identified by PW2 was also seized from his shop. So much of the admissible portion of the evidence of PW 2 & 4 stands corroborated by the version of PW1 and 3. The evidence discussed above also establishes how the knife came into the hands of the accused; that having been taken away from the shop of PW2 and kept back in the shop by PW4. PW4 was not prepared to identify MO1 knife but PW2 did identify it though he turned hostile. PW19-the Investigating Officer seized MO1 knife from the shop of PW2 on 16.01.2005 on conducting a search of his shop and Ext.P2 is the search list. PW2 is a witness in Ext.P2 search list and it was marked through him. So the fact that MO1 is the weapon used for the commission of offence is rather established. 20. The learned counsel would also bring to our Crl.A.No.819, 838, 883 & 931 of 2015 21 attention the evidence of PW11, the Doctor, to contend that there is possibility of using more than one weapon. He has also got a contention that according to the Doctor the third injury noted in Ext.P11 i.e. an incised penetrating wound on the left side of chest can be inflicted from the back. The Doctor also stated that injury No.1 can be inflicted only from the front. Doctor did not rule out the possibility of causing injuries with any other weapon with appropriate dimension. But the Doctor categorically stated that all the injuries are possible of being caused using MO1. There is no evidence to show that anybody else other than first accused was holding any weapon and inflicted any stab injuries upon the deceased. Even in the FIS the clear allegation was that first accused stabbed the deceased and the other accused beat him with hands. So the occular evidence is in corroboration with the medical evidence proving that the injuries sustained by the deceased could be caused by MO1 knife. 21. It has been contended that no description of blood in MO1 is discernible from Ext.P28, the property list Crl.A.No.819, 838, 883 & 931 of 2015 22 prepared for sending MO1 to the Court. True, there is no description of presence of blood in Ext.P28. PW16 Assistant Director FSL received the items in this crime and Ext.P16 FSL report was marked through him. But no question in that regard was put to him. PW19 who seized MO1 was also not questioned in that regard during examination. So at this stage accused cannot contend about the absence of description of blood stain in Ext.P28. Normally if presence of blood is visible to normal eye that would be stated in the property list. Even if the blood stains as such are not visible even then the presence may give a positive result on chemical analysis. FSL report-Ext.P16 describe MO1 as item No.6 and states about rust and dark brown stains on it and the report declares the presence of human blood in MO1. The dark brown stains if visible, in all probability could have been mistaken for rust. The contention is unsustainable and the presence of blood in the weapon would constitute an incriminating circumstance connecting the accused, who had the knife in his hands, with the offence. Crl.A.No.819, 838, 883 & 931 of 2015 23 22. There is a contention for the learned counsel that PWs 1 and 3 are close relatives of the deceased and no independent witnesses have been cited as occurrence witnesses. It was a makaravilakku day and so many people had assembled there. Prosecution could not examine any independent witness. First of all, PW2, 4 and 5 who were not relatives were examined, but they turned hostile. We have already found that PW2 & 4 though turned hostile their clear admissions corroborate the eye witness versions of PW1 & 3. Relationship is not a factor to affect the credibility of the witness unless the Court has a different opinion. In such cases the approach of Courts should be cautious in acting upon their testimony and should scrutinize their evidence with care. (Barati v. State of U.P. (1974 SC 839). In Bhurgaran v. State of Kerala (AIR 2004 SC 1058), it has been laid down that ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. In Devassia C. No.386, Central Prison v. State of Kerala [2019 KHC 117], this Court while dealing with a murder trial held that a witness being a Crl.A.No.819, 838, 883 & 931 of 2015 24 close relative of deceased is not enough to reject his testimony if it is otherwise credible and it is also held that mechanical rejection of evidence of even an interested witness may lead to failure of justice. 23. In the present case Pw1 is the brother of the deceased and Pw3 is his brother-in-law. Pw3 even did not state anything incriminating against accused Nos.2 to 10.Their evidence against first accused is clear and cogent and no material discrepancies could be brought out so as to discredit their testimony. Being the brother and brother in law of the deceased it can never be expected that they will spare the real culprit and falsely implicate the first accused. 24. The defence has also got a contention that Police got information on 15.01.2005 that PW2 snatched the knife from the first accused. But the seizure of the knife as per Ext.P2 has been made only on 16.01.05. On going through the FIS, it is seen that though there is a statement that PW2 snatched the knife from the first accused, it is not revealed that it has been kept in the Crl.A.No.819, 838, 883 & 931 of 2015 25 shop of PW2. PW19 who conducted search explained during cross-examination that CW7 (PW4) stated about the place where knife has been kept only on 16.1.2005 at 9.00 am. At 10.30 search memorandum was prepared and sent. Ext.P27 search memorandum supports that version of PW19. The search list, Ext.P28, which was marked through PW2 would show that the search was conducted on 16.01.2005 at about 11.00 hours. We do not find any delay in seizing MO1. 25. It is contended that PW2 is a 'wholly unreliable' witness and hence his evidence can not be looked into. In Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 KHC 404] the Apex Court classified the oral testimony into three categories namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable in the context of cases when the court is faced with testimony of solitary witness. In Lallu Manjhi and another v. State of Jharkhnad [AIR 2003 SC 854 : 2003 KHC 846] while dealing with the significance of the testimony of a single witness and its admissibility it has been held that in Crl.A.No.819, 838, 883 & 931 of 2015 26 the first two categories there will be no difficulty in accepting or discarding the testimony of a single witness. The difficulty is with regard to the third category when the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony or direct circumstance before acting upon a single witness. 26. In this case PWs 1 and 3-the ocular witnesses testified in corroboration about the overt act of the first accused. Evidence of PW2 can be appreciated, though a hostile witness and the acceptability of the clear admissions made as we have already noticed corroborates the evidence of PW1 and 3.Hence the classification of the witness as wholly unreliable has no application in this case. 27. There is yet another contention that there were no blood stains on the dress worn by PW1 when he appeared before the Police to lodge the FIR. PW1 admitted that the deceased was lying on his lap while being taken to Hospital. There is no reason why his shirt should be Crl.A.No.819, 838, 883 & 931 of 2015 27 smeared with blood since the injuries were on the chest and abdomen. Further the wounds would have been covered and the mere fact that the person accompanying the injured did not have blood smears on his clothes cannot conclusively prove that he was absent at the scene of occurrence. 28. It has been contended by the learned counsel that the time of death has not been proved. It is stated in Ext.P1 that while reaching Venjaramoodu Hospital, the Doctor asked them to take the patient immediately to Medical College Hospital. Hence evidence of PW1 that the Doctor at Venjaramoodu examined the brother at 10.30 pm and declared him dead does not appear to be fully correct. Evidence of PW11 Doctor is also to the effect that he might have lived some more time after sustaining these injuries, but it could have been tough. Accused also has a contention that non production of details of examination at Venjaramoodu Hospital caused prejudice to him since there would have been some statement made by the injured about his assailants. This is especially so when PW1 admitted that the victim spoke for more than Crl.A.No.819, 838, 883 & 931 of 2015 28 one person having stabbed him. So there is possibility of victim naming the assailants during that time, the learned counsel contends. 29. It is true that PW1 during cross-examination admitted that deceased made such a statement but he categorically stated that he had seen the 1[st] accused stabbing the brother. PW3 also specifically stated about the overt act of the the fist accused. The above statement of the deceased was made immediately after suffering the stab injuries, when the injured sat in the varandah of the shop. That statement of the deceased is only because there was a crowd gathered there due to the commotion created by the accused and when there was an altercation the victim, by reason of the multiple injuries would have thought that there was more than one assailant. But the involvement of any person other than the accused could be proved by the prosecution. Hence that by itself will not exclude the culpability of the first accused. 30. With regard to the recovery of MOs 7 and 8, it has Crl.A.No.819, 838, 883 & 931 of 2015 29 been contended that though search was conducted in the house of the accused on 15.1.2005 and Ext.P25 search list was prepared, MO7 and 8 were not seized and hence it is highly unbelievable that on 16.1.2005 as per the disclosure statement given by the accused, MO7 and 8 pants and shirt of the accused could be recovered. But recovery of MO7 and 8 is from the hen-shed and not from the house. More over, the initial search was conducted to trace out the accused. Only after arresting the accused on 6.2.2005, the pants and shirt were recovered as per Ext.P12 mahazar, from where it was kept concealed under the roof of the hen-shed. PW12 is the witness in Ext.P12 mahazar and the mahazar is marked through him. But he was not prepared to admit the recovery at the instance of the accused and was declared hostile. But recovery of MO7 and 8 as per Ext.P12(a)disclosure statement of the accused and recovery of the same as per Ext.P12 was proved through the evidence of Pw19. Recovery u/s. 27 can very well be accepted with the evidence of the investigating officer who recovered the material object and the recovery Crl.A.No.819, 838, 883 & 931 of 2015 30 cannot be rejected on the ground that seizure witnesses did not support the prosecution version. (Mallikarjun & Ors. v. State of Karnatak [2019 8 SCC 359 : 2019 KHC 6780], (Anter Singh v. State of Rajasthan [2004 10 SCC 657] ). FSL report which is marked as Ext.P16 through PW16 would prove that item Nos.4 and 5-pants and shirt contain human blood though group could not be detected. That can be read in corroboration ,with the evidence of PW1 who identified MO7 and 8 as the Pants and Shirt of first accused. FSL report also proves that MO2 dhoti, MO3 shirt, MO9 underwear of the deceased contained human blood. Presence of human blood in MO7 and 8 is an incriminating circumstance pointing to the guilt of the accused. 31. The learned counsel has also got a contention that the autorickshaw in which the 1[st] accused and others escaped from the place of occurrence after the incident was seized on 15.1.2005 as per Ext.P9 seizure mahazar. That has been got examined through the scientific Assistant PW15 only on 19.2.2005. According to PW15 traces of blood was found on MO11 and 12. But those were Crl.A.No.819, 838, 883 & 931 of 2015 31 not sent to FSL. There is inordinate delay in getting the autorickshaw examined by the scientific Assistant and collecting MO11 and 12, which is also not explained. We find force in the argument of the learned counsel. But we have already found that there is evidence in abundance to connect the 1[st] accused through the ocular evidence of PW1 and 3 and the admissible portion of evidence of PW2 and other circumstances. 32. The motive alleged by the prosecution is the failure of the deceased to hire the autorickshaw of the first accused. PW1 and 3 deposed in corroboration about the alleged motive. But even prosecution witness Pw3 would admit that deceased used to hire jeep and autorickshaw for travel. Even otherwise as rightly contended by the learned counsel for the accused if at all the deceased was a person who used to hire the autorikshaw of the first accused, normally he would be the last person to murder him so as to cause loss of income to himself. So the motive alleged by the prosecution as rightly contended by the learned counsel for the accused is too feeble and cannot be believed. In Darbara Singh v. State Crl.A.No.819, 838, 883 & 931 of 2015 32 of Punjab [(2012) 10 SCC 476], it has been held by the Apex Court that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available which is credible, motive loses its significance. This is a case based on direct evidence and there is clear occular evidence of PW1 and 3. So absence of proof of motive is of less significance. 33. Evidence adduced by the prosecution proved the act of the 1[st] accused coming at 7 p.m to the shop of PW1 and abusing him and altercation in between them. Subsequently with premeditation he returned at 8.15 p.m snatching MO1 from PW2's shop and abused PW1 and deceased using filthy language and stabbed the deceased on his vital parts and thereby committed murder of deceased which is proved beyond any reasonable doubt. But at the same time the Prosecution could not prove any overt act or active involvement of any of the other accused. Only PW1 stated about the involvement of A2 to 10 before the court. Though he stated that the deceased and himself were attacked by other accused, no injury Crl.A.No.819, 838, 883 & 931 of 2015 33 has been sustained by him. No medical records in that regard also has been produced. Apart from the 4 cut injuries in Ext.P11 no injuries were noted in the post mortem certificate of the deceased. So involvement of accused Nos.2 to 5 are not established beyond any reasonable doubt. The contention of accused No.2 to 5 that their case has to treated on par with that of accused No.6 to 10 is only to be accepted and we hereby find that accused No.2 to 5 are not involved in the commission of the murder. Consequently the conviction and sentence passed against the first accused under Secs 143, 147, 148, 323 r/w 149 IPC is hereby set aside and first accused is acquitted of those charges. In all other aspects the conviction and sentence passed against the first accused is confirmed. 34. In the result Criminal Appeal No.819/2015 partly allowed setting aside the conviction and sentence passed against the first accused under Secs 143, 147, 148, 323 r/w 149 IPC. Conviction and sentence passed against the first accused under Secs 294(b), 448 and 302 IPC is maintained. Criminal Appeal Nos. 838/2015, 883/2015 and Crl.A.No.819, 838, 883 & 931 of 2015 34 931/2015 are allowed and conviction and sentence passed against accused numbers 2 to 5 are hereby set aside, bail bond executed by them stand cancelled and they are set at liberty. **Sd/-** ## **K. VINOD CHANDRAN JUDGE** **Sd/-** **M.R.ANITHA JUDGE** Mrcs/Shg