Velmurukan, S/o. Saravanan and Karuppuswamy, S/o. Udayar v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938 CRL.A.No. 666 of 2010 ( ) -------------------------- AGAINST THE ORDER/JUDGMENT IN SC 342/2007 of SPL. COURT (NDPS ACT CASES), THODUPUZHA DATED 09-03-2010 APPELLANT(S)/ACCUSED 1 AND 3: ---------------------------- 1. VELMURUKAN, S/O. SARAVANAN, MGP 11/167, PATHIKODU KARA, MARAYOOR VILLAGE. 2. KARUPPUSWAMY, S/O. UDAYAR, MGP, VII/278, MARAYOOR GRAMAM, MARAYOOR VILLAGE. BY ADVS.SRI.P.HARIDAS SMT.LIJI KUTTAPPAN SMT.S.SIKKY SMT.DIVYA K.NAIR SRI.P.C.SHIJIN RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA - CIRCLE INSPECTOR OF POLICE, MUNNAR, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. GOVERNMENT PLEADER R BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03-102016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.K. ABDUL REHIM & ANIL K. NARENDRAN, JJ. ----------------------------------------------Crl.A. No.666 of 2010** ## **----------------------------------------------Dated this the 3[rd] day of October, 2016** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J** . The appellants are the 1[st] and 3[rd] accused in S.C.No.342/2007 on the file of the Additional Sessions Court (Special Judge for NDPS Act cases), Thodupuzha. 2. The appellants along with 2 others were charge-sheeted in Crime No.2/2005 of Marayoor Police Station, alleging commission of offences punishable under Sections 342 and 302, read with Section 34 of Indian Penal Code, 1860. By the order dated 18.5.2007 in C.P.No.10/2007 the Judicial Magistrate of First Class, Devikulam committed the case to the District and Sessions Court, Thodupuzha which was made over to the Additional Sessions Court (Special Judge for NDPS Act cases), Thodupuzha for trial. Upon consideration of the records of the case and after hearing the accused and the prosecution, the trial court found no grounds to discharge the accused under Section 227 of Criminal Procedure Code, 1973. Accordingly, charges were framed against the accused for the offences alleged, which were read over and explained to them. The accused pleaded not guilty. Crl.A.No.666 of 2010 -2- 3. During trial, PWs.1 to 17 were examined, Exts.P1 to P23 and MOs.1 to 15 were marked on the side of the prosecution. After closure of prosecution evidence, accused 1 to 3 and the learned counsel for the 4[th] accused were questioned under Section 313(1)(b) of Cr.P.C. Since the accused were found not entitled to an order of acquittal, they were called upon to enter their defence. Accordingly, Ext.D1 was marked as defence exhibit. 4. After trial, the trial court as per the impugned judgment dated 9.3.2010 found the 1[st] accused guilty of the offence under Sections 342 and 302 of IPC and the 3[rd] and 4[th] accused guilty of the offence under Section 342 of IPC. Accordingly, the 1[st] accused was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default to undergo rigorous imprisonment for one year, for the offence under Section 302 IPC; and rigorous imprisonment for six months and to pay fine of Rs.1,000/-, in default rigorous imprisonment for fifteen days, for the offence punishable under Section 342 of IPC. The sentence was ordered to be run concurrently and the 1[st] accused was found not entitled to set off. The 3[rd] accused was convicted and sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for fifteen days, for the Crl.A.No.666 of 2010 -3- offence punishable under Section 342 of IPC, subject to set off. It was ordered that, the fine amount, if realised, will be paid to PW1 as compensation under Section 357(1)(a) of Cr.PC. Since the 4[th] accused was absent, the case against her was split up and it was ordered to be re-filed. The 2[nd] accused was found not guilty of the offences punishable under Sections 342 and 302 of IPC. Accordingly, he was acquitted of the said offences and set at liberty, after cancelling the bail bond. Challenging the conviction and sentence of the trial court in S.C.No.342/2007, the 1[st] and 3[rd] accused are before this Court in this appeal. 5. We heard the arguments of the learned counsel for the appellants/the 1[st] and 3[rd] accused and also the learned Public Prosecutor representing the respondent/State. 6. The learned counsel for the appellants/1[st] and 3[rd] accused would contend, inter alia, that there is total lack of evidence to corroborate the prosecution case as to the overt acts leading to the injury caused to the deceased, which had resulted in her death, and that the conviction and sentence of the trial court is based on probabilities and surmises. Further, the prosecution case as to the dying declaration alleged to have been made by the deceased before PW1 is unbelievable. When the very foundation of the prosecution Crl.A.No.666 of 2010 -4- case was shaken, the accused are entitled for benefit of doubt. Per contra, the learned Public Prosecutor would contend, inter alia, that the conviction and sentence of the trial court are perfectly legal and that the evidence of PW8 Doctor would indicate that at the time when the deceased made declaration to PW1 about the cause of injury, she was in a fit state of mind. When no suggestion was made to PW8 by the defence as to the state of mind of the deceased, it can be assumed that the deceased was in a fit state of mind while she narrated the incident to PW1. Further, minor contradictions in the deposition of prosecution witnesses are bound to be ignored as it is likely to be so as the statement is recorded in court after inordinate delay. Both the sides have also cited various decisions in order to buttress their respective contentions. 7. Going by the prosecution case, on 10.1.2005 at about 11.00 AM at Kovilkadavu Kara, all the accused in furtherance of their common intention of committing murder of one Vasanthakumari, wife of CW1, on account of their enmity towards CW1 and his wife in connection with a dispute that arose in putting up a kayyala causing obstruction to the pathway to the property of the 3[rd] and 4[th] accused, wrongfully confined her by catching hold of her. The 2[nd] accused directed the 1[st] accused to beat the deceased upon which the 1[st] Crl.A.No.666 of 2010 -5- accused struck on the top of her head with a crowbar (alavanku), resulting fatal injury, consequent to which she died at 12.30 AM on the next day in a hospital at Coimbatore. According to the prosecution, the accused in furtherance of the common intention of all committed the above said offences. 8. A crime was registered on 11.1.2005 at 6.00 AM, based on Ext.P1 first information statement of CW1, the husband of the deceased. As per Ext.P1 first information statement, all the accused on account of their enmity towards CW1 and his wife attempted to demolish a kayyala put up along the boundary of his property. When the deceased obstructed the accused, the 3[rd] and 4[th] accused caught hold of her, thereby restraining her from moving ahead. The 2[nd] accused directed the 1[st] accused to beat and finish the deceased, upon which the 1[st] accused struck on her head with MO3 crowbar, as a result of which she sustained fatal injury. She was taken to the Primary Health Centre, Marayoor by persons gathered there on hearing her screams. Since the injury was serious, she was shifted to Sahayagiri Hospital after first aid. On hearing about the incident, CW1 rushed to the hospital. On seeing him, the deceased detailed the entire incident to him at Sahayagiri Hospital. Since the injury was serious the deceased was taken to Government Hospital, Udumalpet, Crl.A.No.666 of 2010 -6- at about 2.00 PM. As advised by doctors, she was taken from Udumalpet to Coimbatore Medical College Hospital. While undergoing treatment there, she succumbed to injuries on 11.1.2005 at 12.30 AM. 9. CW1, who was examined as PW1 during trial, deposed that he is a manual labourer and on the date of occurrence at 8.00 AM he went to Marayoor for work. He heard about the incident from one of his friends, when he went to Marayoor town for having tea; who told him that the accused have beaten his wife and she has been taken to the hospital. From Marayoor town he rushed to Sahayagiri Hospital, where he met his wife. He enquired her about the incident and she narrated the entire incident to him. From Sahayagiri Hospital she was taken to Udumalpet, where she was not admitted. From there she was taken to Ramakrishna Hospital, Coimbatore, where the doctor found her dead. Her body was taken back home and the matter was informed to the police. The Police came and recorded his statement. PW1 deposed that, the deceased had not undergone any treatment at Coimbatore Hospital. PW1 has also identified the accused in court, mentioning the name of each of them. 10. During cross examination PW1 admitted that, he has no direct knowledge about the incident. PW1 deposed that, he does not remember the name of his friend, who told him about the incident at Crl.A.No.666 of 2010 -7- the tea shop at Marayoor and he does not know the name of the owner of that shop. At the tea shop, his friend narrated the entire incident to him, in the presence of others sitting in that shop. PW1, at the time of recording his statement, had disclosed to the Police about narration of the entire incident by his friend at the tea shop. PW1 deposed that, when he reached Sahayagiri Hospital many people known to him were standing near his wife, who was lying on the hospital bed. He enquired them about the incident, who narrated the incident to him. 11. During cross examination PW1 deposed further that, the Police was informed about the incident before the deceased was taken to Sahayagiri Hospital. Before the deceased was taken from Sahayagiri Hospital and even thereafter, he had gone to the Police station and informed the Police about the incident. According to PW1, his wife has not spoken anything after she was taken from Sahayagiri Hospital. She was taken from Udumalpet to Coimbatore at night 12.00 AM. From Coimbatore her body was taken back home by about 3.00 AM. At that time the police was there. PW1 clarified that, he never stated before the Police that his wife died while undergoing treatment at Coimbatore Medical College Hospital. The relevant portion of Ext.P1 FIS was read over to PW1 and he was confronted with the contents of Crl.A.No.666 of 2010 -8- the same, which was marked as Ext.D1. PW1 has also denied the suggestion that, the deceased sustained injury due to fall on rocky area. 12. In order to prove the occurrence, the prosecution cited Cws.2 and 3, who were examined during trial as Pws.2 and 3 respectively. According to the prosecution, CW2 had witnessed the entire incident and CW3 witnessed only the last part of the incident, i.e., what happened after the deceased sustained the injury. During inquest, the Investigating Officer CW22 (who was examined as PW14 during trial) recorded the statement of Cws.2 and 3, under Section 161 of Cr.P.C. Section 161 statement of CW2 was recorded on 11.1.2005, which was followed by a further statement recorded on 14.1.2005. Section 161 statement of CW3 was recorded on 11.1.2005. 13. As per Section 161 statement of CW2, [ _on 10.1.2005 at 11.00 AM, when he came out of his house hearing hue and cry from the western side of the house of the deceased, he saw altercation going on between the deceased and the accused near the Kayyala on the boundary of her property. The 1[st] accused demolished the kayyala with a crowbar. When the deceased attempted to prevent the 1[st] accused from doing so, the 2[nd] accused directed the 3[rd] and 4[th] accused to catch hold of her and accordingly the 3[rd] and 4[th] accused caught hold of her. On seeing the incident, CW2 moved towards them. While so, the 2[nd] accused directed the 1[st] accused to_ Crl.A.No.666 of 2010 -9- _finish her upon which the 1[st] accused struck violently on the head of the deceased with the crowbar, resulting in severe bleeding and she fell down. On seeing this, all the accused flew away from the scene of occurrence._ ]* By that time CW3 came there running from her house, which is close by. CW2, with the help of CW3, took the deceased to Government Hospital, Marayoor in an autorickshaw which came by that way. By that time, on hearing about the incident, CW1, husband of the deceased, came to that hospital. Thereafter, as advised by the doctor the deceased was taken to Sahayagiri Hospital. Since the injury was serious the deceased was taken to Udumalpet, and from there to Medical College Hospital, Coimbatore. Though CW2 had not gone to Udumalpet, he came to know that the deceased died while undergoing treatment at Medical College Hospital, Coimbatore. CW2 has also deposed that, there was boundary dispute between CW1 and the 1[st] accused. As per the further statement of CW2 recorded on 14.1.2005, [ _it was CW2 who gave the required information when the deceased was brought to Sahayagiri Hospital. While giving the information in a perplexed mental condition, CW2 wrongly stated that, the incident occurred at 10.10 AM and the Police was informed about the incident at 10.45 AM._ ]** [* _marked as Ext.P2_ ; ** _marked as Ext.P3_ ] 14. CW2, who was examined as PW2 during trial, denied to Crl.A.No.666 of 2010 -10- have witnessed the overt acts of the accused causing injury to the deceased. PW2 was declared hostile, as he did not support the prosecution case. During cross examination by prosecution, PW2 was confronted with material portions of his statement made under Section 161 Cr.PC. The portion of the Section 161 statement, where PW2 had stated to have witnessed the altercation going on between the deceased and the accused and also the overt acts of the accused, was read over to him and he was confronted with the contents of the same, which was marked as Ext.P2. PW2 denied to have made any such statement before the Police. During cross examination by prosecution PW2 has stated that, he saw the deceased lying injured, who was taken to hospital in an autorickshaw. However, he does not know who gave the required information at Sahayagiri Hospital. Though PW2 had gone to the Police Station, he was told that the Police will come and record statement at the hospital. The portions of the further statement recorded under Section 161, where PW2 had stated to have given wrong information at Sahayagiri Hospital in a perplexed mental condition as to the incident occurred on 10.1.2005 were read over to him and he was confronted with the contents of the same, which were marked as Exts.P3 and P3(a). PW2 denied to have made any such statements before the Police. Crl.A.No.666 of 2010 -11- 15. As per Section 161 statement of CW3, [ _on 10.1.2005 at 11.00 AM she came out of her house hearing hue and cry from the northern side of the house of the deceased. Then she saw the accused fleeing away and the deceased lying on the rocky area. She saw CW2 running towards the place of occurrence._ ]* [ _While fleeing away the 1[st] accused was carrying a crowbar. When she reached the place of occurrence, the deceased was lying there with bleeding head injury._ ]** The deceased was conscious. CW2 brought an autorickshaw in which the deceased was taken to Primary Health Centre, Marayoor. Since the injury was serious, the doctors advised them to shift her to another hospital and accordingly, CWs.2 and 3 have taken the deceased to Sahayagiri Hospital. By that time, on hearing about the incident, PW1, the husband of the deceased, and other relatives came there. Since the injury was serious, they have taken the deceased to Udumalpet. CW3 has deposed that, [ _there was boundary dispute between PW1 and the 1[st] accused and that, the deceased had told her about the incident and also the overt acts of the accused._ ]*** CW3 has also deposed that, the deceased was conscious while she was taken from Sahayagiri Hospital to Udumalpet. [* _marked as Ext.P4_ ; ** _marked as Ext.P4(a)_ ; *** _marked as Ext.P4(b)_ ] 16. CW3, who was examined as PW3 during trial, denied to have witnessed the overt acts of the accused causing injury to the Crl.A.No.666 of 2010 -12- deceased. She did not even identify the accused. According to PW3, on hearing hue and cry she rushed to the place of occurrence from her house, where she saw the deceased lying with bleeding head injury. She along with PW2 had taken the deceased to the hospital. Since the deceased was not admitted in the Government Hospital, she was taken to Sahayagiri Hospital. When the relatives of the deceased came, PW3 returned from the hospital. PW3 was declared hostile, as she did not support the prosecution case. During cross examination by prosecution, PW3 has stated that, the deceased was talking while she was taken to the hospital, and the deceased had disclosed to her that she was beaten by two or three persons. During cross examination PW3 was confronted with material portions of her statement made under Section 161 Cr.PC. The portion of Section 161 statement, where PW3 had stated to have witnessed the accused fleeing away from the place of occurrence and CW2 running towards the place of occurrence was read over and she was confronted with the contents of the same, which was marked as Ext.P4. PW3 denied to have made any such statement before the Police. The portion of Section 161 statement where PW3 had stated to have witnessed the 1[st] accused fleeing away from the scene of occurrence carrying a crowbar was read over to her and she was confronted with the contents of the same, which was Crl.A.No.666 of 2010 -13- marked as Ext.P4(a). PW2 denied to have made any such statement before the Police. The portion of Section 161 statement where PW3 had stated that, there was boundary dispute between PW1 and the 1[st] accused and that, the deceased had told her about the incident and also the overt acts of the accused was read over to her and she was confronted with the contents of the same, which was marked as Ext.P4(b). PW3 denied to have made any such statement before the Police. During cross examination for the accused, PW3 has deposed that the Police came to Sahayagiri Hospital. 17. The Doctor, who issued Ext.P7 wound certificate was examined as PW8. The injury noted in Ext.P7 wound certificate is lacerated injury 6x2 cm on left parietal area with active bleeding. PW8 has deposed that, on 10.1.2005, while she was working as Medical Superintendent at Sahayagiri Hospital, Marayoor, she had examined the injured at 12.15 PM and noted a lacerated wound on her head with active bleeding. PW8 has deposed that, the neighbours have brought the injured to the hospital. The alleged cause of injury was noted as beaten by somebody on head by iron rod. She has also deposed that, the injury noted in Ext.P7 can be caused by a weapon like the one shown to her (MO3 'alavanku'). The injured was given first aid and she was kept under observation till the relatives came. Then the injured Crl.A.No.666 of 2010 -14- was referred to the Medical College Hospital, Coimbatore. During cross-examination for the accused, PW8 has deposed that, the patient was brought to the hospital in a semi-conscious condition and she was talking. However, she has not stated in Ext.P7 certificate that the patient was talking. The neighbours told PW8 about the alleged cause of injury. For three hours the patient was there at the hospital. When the husband of the patient came, she was taken to Medical College Hospital, immediately. The shifting of the patient was delayed for three hours, since her relatives came there late. PW8 has also deposed that, she was not questioned by the Police showing MO3 'alavanku.' 18. The Deputy Police Surgeon, who conducted postmortem at Medical College Hospital, Kottayam and issued Ext.P8 postmortem certificate was examined as PW9. The ante-mortem injury noted in Ext.P8 certificate were sutured lacerated wound 6 cm. long oblically placed on the right side of the top of the head, with its black outer end just above the parietal eminence; scalp tissue around showed contusion 12x6x1 cms.; scull bone underneath showed multiple fissured fracture with sutured separation of the sagittal and right side of the lambdoid; and extradural haemorrahge 8x6x4 cms. over right temporo parietal region. Subdural and subarachnoid spaces had defused haemorrahage. Under surface of the brain showed Crl.A.No.666 of 2010 -15- haemorragic contusion 4x3x1 cm. Sulci of brain narrowed and its gyri flattened. In Ext.P8 the opinion as to cause of death was that, it was due to head injury. 19. PW9 has deposed that, he conducted postmortem examination of the body of the deceased on 12.1.2005 from 9.20 AM to 10.20 AM and prepared Ext.P8 certificate and noted the antemortem injuries. He opined that the death happened due to head injury. PW9 deposed that, the injury noted can be caused by a weapon like the one shown to him (MO3 'alavanku'). During cross-examination for the accused PW9 deposed that, due to internal bleeding, increased pressure in brain can lead to unconsciousness. There can be the possibility that the patient fell unconscious. Externally there was only a lacerated wound. There was multiple tissue fractures, which can be caused as a result of possible blunt impact. 20. The Circle Inspector of Police, Munnar who conducted inquest and prepared Ext.P5(a) inquest report was examined as PW14. He deposed that, after inquest the dead body was sent to Medical College Hospital, Kottayam for postmortem. He questioned the witnesses. PW2 gave Exts.P2 and P3 statements; PW3 gave Exts.P4, P4(a) and P4(b) statements; and PW6 gave Ext.P5 statement. He arrested the accused. Based on the disclosure statement of the 1[st] Crl.A.No.666 of 2010 -16- accused, the weapon used for committing the offence was taken into custody as per Ext.P6 seizure mahazar and the accused were produced before the court along with remand report. PW14 deposed that, the 1[st] accused made a declaration that, he had concealed the bar in the house of his friend Pakkiraju @ Achuthan Nair, under a coat in the bedroom on the center of that house and that, he will show the concealed bar if he is taken to that house. Accordingly, PW14 along with the 1[st] accused went there and recovered MO3 crowbar. The relevant portion of the declaration of the 1[st] accused leading to the alleged recovery of MO3 was marked as Ext.P6(a). PW14 has also identified MO3 crowbar. During cross-examination for accused, PW14 deposed that, the information regarding the incident was received on 11.1.2005 at 6.00 AM. He denied the suggestion that, such information was passed on to the Police at 10.00 AM on 10.1.2005 itself. PW14 has admitted that, there were occupants in the house from where MO3 was recovered. He denied the suggestion that, the deceased sustained injury due to fall on rocky area. 21. In order to prove recovery of MO3 crowbar, the prosecution examined PW7, who alleged to have affixed signature as one of the witnesses in Ext.P5(a). Though PW7 admitted his signature in Ext.P5 (a), which was marked as Ext.P6, he did not identify MO3 crowbar. Crl.A.No.666 of 2010 -17- Accordingly PW7 was declared hostile. On cross-examination by prosecution PW7 has admitted that he knows Pakkiraju and his house. However he denied to have witnessed recovery of MO3 crowbar from the house of Pakkiraju. He admitted his signature in Ext.P5(a). However, he deposed that he has not signed anything evidencing the recovery of crowbar. 22. The conviction of the trial court, as discernible from the impugned judgment, is mainly based on the evidence of PW1, relying on Section 32 of the Evidence Act, 1872. As we have already noticed, the crime was registered on 11.1.2005 at 6.00 AM based on Ext.P1 first information statement made by PW1. Admittedly, PW1 has no direct knowledge about the incident occurred on 10.1.2005 at about 11.00 AM at Kovilkadavu, since he was at his work place at Marayoor. According to PW1, on hearing about the incident he rushed to the hospital and on seeing him, the deceased detailed the entire incident to him at Sahayagiri Hospital. 23. Section 32 of the Evidence Act, 1872 deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. As per Section 32 of the Act, statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving Crl.A.No.666 of 2010 -18- evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the cases falling under clauses (1) to (8) thereof. As per clause (1) of Section 32, when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. 24. In **Ramawati Devi v. State of Bihar (1983 (1) SCC 211 : 1983 CriLJ 221)** the Apex Court held that, a statement, written or oral, made by a person who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or Crl.A.No.666 of 2010 -19- weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. 25. In **Lakhan v. State of M.P. (2010 (8) SCC 514 )** the Apex Court held that, the juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. Since the accused has no power of cross examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the Crl.A.No.666 of 2010 -20- opportunity to observe and identify the assailant. The Apex Court held further that, a dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. What evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. 26. In **Puran Chand v. State of Haryana (2010 (6) SCC 566 : 2010 CriLJ 3423)** the Apex Court held that, the courts below have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without Crl.A.No.666 of 2010 -21- being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. 27. In **Surinder Kumar v. State of Haryana (2011 (10) SCC 173 : 2012 CriLJ 1043)** the Apex Court reiterated that, if after careful scrutiny, the court is satisfied that the dying declaration is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make a basis of conviction, even if there is no corroboration. However, on facts the Apex Court upheld the acquittal of the accused since the dying declaration was found to be shrouded by suspecious circumstances and no witness in support thereof had been examined. 28. In **Bhajju @ Karan v. State of M.P. (2012 (4) SCC 327 : 2012 CriLJ 1926)** the Apex Court held that, the dying declaration has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to Crl.A.No.666 of 2010 -22- the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the court, the same may be refused to be accepted as forming basis of the conviction. Another consideration that may weigh with the court, of course with reference to the facts of a given case, is whether the dying declaration has been able to bring a confidence thereupon or not, is it trust worthy or is merely an attempt to cover up the latches of investigation. It must allure the satisfaction of the Court that reliance ought to be placed thereon rather than distrust. 29. In **Shudhakar v. State of M.P. (2012 (7) SCC 569 : 2012 CriLJ 3985)** the Apex Court reiterated the principles relating to admissibility and evidentiary value of dying declaration under Section 32 of the Evidence Act. The Apex Court held that, once such statement has been made voluntarily, it is reliable and is not an attempt by the deceased to cover up the truth or falsely implicate a person, then the courts can safely rely on such dying declaration and it can form the basis of conviction. Where the version given by the deceased as dying Crl.A.No.666 of 2010 -23- declaration is supported and corroborated by other prosecution evidence, there is no reason for the courts to doubt the truthfulness of such dying declaration. 30. In **State of Madhya Pradesh v. Dal Singh (2013 (14) SCC 159 : 2013 CriLJ 2983)** the Apex Court held that, the law does not provide who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. 31. Having referred to the law relating to dying declaration, we shall now examine whether the conviction of the trial court mainly based on the evidence of PW1, relying Section 32 of the Evidence Act, is legally sustainable. As held by the Apex Court in the decisions referred to hereinbefore, great caution must be exercised in considering the evidentiary value of dying declaration on account of the existence of many circumstances which may affect its proof. The court has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court must also be satisfied that while making such declaration, the deceased was in a fit state of mind. Therefore, the court has to examine a dying declaration scrupulously Crl.A.No.666 of 2010 -24- with a microscopic eye to find out whether such declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by anyone who may be interested in the success of the investigation. 32. Going by Ext.P1 first information statement, on hearing about the incident, PW1 rushed to the hospital and on seeing him, the deceased detailed the entire incident to him at Sahayagiri Hospital. During trial, PW1 deposed that, he heard about the incident from one of his friends, when he went to Marayoor town for having tea; who told him that the accused have beaten his wife and she has been taken to the hospital. However, he does not remember the name of his friend, who told him about the incident at the tea shop and he does not know the name of the owner of that shop. When he reached Sahayagiri Hospital many people known to him were standing near his wife, who was lying on the hospital bed. PW1 deposed further that, the Police was informed about the incident before the deceased was taken to Sahayagiri Hospital. Before the deceased was taken from Sahayagiri Hospital and even thereafter, he had gone to the Police station and informed the Police about the incident. PW1 deposed that, his wife has not spoken anything after she was taken from Sahayagiri Hospital. Crl.A.No.666 of 2010 -25- 33. Going by Ext.P7 wound certificate, the patient was brought to the hospital in a semi-conscious condition. The said fact has been admitted by PW8 Doctor. Admittedly, the neighbours told PW8 about the alleged cause of injury. During chief examination PW8 has deposed nothing to suggest that, when the patient was brought to the hospital she was in fit state of mind to make a declaration about the alleged cause of injury. Though PW8 deposed during cross examination that the patient was talking when she was brought to the hospital, the witness had admitted that the said fact is not stated in Ext.P7 certificate. The evidence of PW8 would also show that the patient was taken from Sahayagiri Hospital immediately after her husband came there. According to PW8, shifting of the patient was delayed for 3 hours, since the relatives came late. The evidence of PW8 referred to above is sufficient to draw an inference that PW1 reached Sahayagiri Hospital just before the deceased was shifted from that Hospital to Udumalpet. As admitted by PW1, his wife has not spoken anything after she was taken from Sahayagiri Hospital. Further, PW1 deposed that when he reached Sahayagiri Hospital many people known to him were standing near his wife, who was lying on the hospital bed. According to PW1, he enquired his wife about the incident, who narrated the entire incident to him. None of the witnesses, who were Crl.A.No.666 of 2010 -26- interrogated at the time of inquest, have witnessed the deceased narrating the entire incident to PW1, even going by the statement of such persons recorded under Section 161 of Cr.PC. 34. The mere statement made by PW8 Doctor during crossexamination that the patient was talking when she was brought to the hospital, is not at all sufficient to draw an inference that when PW1 reached Sahayagiri Hospital and alleged to have enquired with his wife about the incident, she was in a fit state of mind to narrate the entire incident leading to the injury. This is more so, when as discernible from Ext.P7 wound certificate and the oral evidence of PW8 Doctor, she has recorded the alleged cause of injury as told by the neighbours of the patient. 35. Relying on the decision of the Apex Court in **Pothakamuri Srinivasulu v. State of A.P. (2002 (6) SCC 399 : 2002 CriLJ 3569)** the learned Public Prosecutor would contend that, when no suggestion was made to PW8 that, due to the injury sustained by the deceased she might have become unconscious, it can be assumed that the deceased was in a fit state of mind while she narrated the incident to PW1. The said decision of the Apex Court is on an entirely different factual matrix, which has no application to the facts of the case on hand. A bare reading of the said decision would show that, in that case Crl.A.No.666 of 2010 -27- three eye witnesses have positively stated that the deceased was speaking when they had met her soon after the incident. On the other hand, in the instant case, as we have already noticed, during chief examination PW8 has deposed nothing to suggest that, when the deceased was brought to the hospital she was in fit state of mind to make a declaration about the alleged cause of injury. 36. A conjoint reading of the evidence of PW1, PW8 and Ext.P7 wound certificate, in the light of the admission made by PW1 that his wife has not spoken anything after she was taken from Sahayagiri Hospital, would lead to an irresistible conclusion that, by the time PW1 reached Sahayagiri Hospital his wife was not in a fit state of mind to narrate the entire incident regarding the cause of injury. Therefore, in the facts and circumstances of the case, as borne out from the evidence on record, the dying declaration alleged to have been made by the deceased to PW1 at Sahayagiri Hospital cannot be acted upon and made the basis of conviction of the accused, for the offences alleged. In the absence of any corroborative evidence as to the declaration alleged to have been made by the deceased to PW1, the trial court committed a grave error in convicting the accused mainly based on the evidence of PW1, relying Section 32 of the Evidence Act. 37. In **Ganga Bhavani v. Rayavati Venkat Reddy (2013** Crl.A.No.666 of 2010 -28- **(15) SCC 298)** , a decision relied on by the learned Public Prosecutor, the Apex Court held that, in case there are minor contradictions in the depositions of witnesses, the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as statement in court is recorded after an inordinate delay. In the said decision, the Apex Court has also held that, in case contradictions are so material that the same go to the root of the case materially affecting the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence. 38. In the instant case, the fact that PW1 had no occasion to witness the alleged occurrence at Kovilkadavu is not in dispute. In order to prove the occurrence, the prosecution relied on the oral evidence of PWs.2 and 3 and also the relevant portions of their Section 161 statement, which were marked as Exts.P2, P3, P3(a), P4, P4(a) and P4(b). Even going by the prosecution case, PW3 had witnessed only the last part of the incident, i.e., what happened after the deceased sustained injury. Therefore, admittedly, PW3 who came to the place of occurrence after the deceased sustained injury had no occasion to witness either the alleged altercation between the deceased and the accused or any overt acts of the accused in causing Crl.A.No.666 of 2010 -29- injury on the deceased with MO3 crowbar. The portion of Section 161 statement made by PW3 which was marked as Ext.P4 is to the effect that when PW3 proceeded towards the place of occurrence, she saw PW2 running towards the place of occurrence. On the other hand, in the portion of Section 161 statement made by PW2 which was marked as Ext.P2, PW2 had witnessed the altercation going on between the deceased and the accused and also the overt acts of the accused. As per the said statement made by PW2, on seeing the deceased fell down with severe bleeding, all the accused flew away from the scene of occurrence. According to PW2, by that time PW3 came there running from her house. The apparent contradictions and discrepancies in the statements made by PWs.2 and 3 cast a serious doubt on the prosecution case that, PW2 had witnessed the altercation and the overt acts and PW3 had witnessed the accused fleeing away from the scene of occurrence, after committing the alleged offence. Such contradictions and discrepancies are so material, which go to the root of the case, materially affecting the core of the prosecution case. Therefore, on an overall evaluation of the evidence of PWs.2 and 3, the conclusion is irresistible that, the prosecution has failed to establish beyond reasonable doubt that, the accused had committed the alleged offence by causing injury on the deceased with MO3 Crl.A.No.666 of 2010 -30- crowbar. 39. It is trite law that, statements recorded by Police during investigation are not substantive evidence. Such statements recorded under Section 161 Cr.PC. can be used for the purpose of contradiction, which cannot be used for any purpose except to contradict a witness in the manner prescribed under sub-section (1) of Section 162 Cr.PC. Therefore, the statement recorded by Police under Section 161 Cr.PC., which can be used for the limited purpose of impeaching the credibility of a witness, cannot by itself be treated as a substantive evidence in a criminal trial. 40. In **Bhajju @ Karan v. State of M.P. (2012 (4) SCC 327 : 2012 Cri.LJ 1926)** the Apex Court reiterated that, the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. 41. In **V.K. Mishra v. State of Uttarakhand (2015 (9) SCC 588 : 2015 Cri.LJ 4021)** a Three-Judge Bench of the Apex Court held that, the statements under Section 161 Cr.PC. recorded during Crl.A.No.666 of 2010 -31- the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose of (i) contradicting such witness by an accused under Section 145 of Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the court and (iii) the re-examination of the witness if necessary. The Apex Court held further that, under Section 145 of the Evidence Act, when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the Police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross examination. The attention of witness is drawn to that part and this must reflect in his cross examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when Crl.A.No.666 of 2010 -32- investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the Police statement will depose about the witness having made that statement. The process again involves referring to the Police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to Police not proved in compliance with Section 145 of Evidence Act, that is, by drawing attention to the parts intended for contradiction. 42. In the instant case, when PWs.2 and 3 were confronted with their statement recorded by the Police under Section 161 of Cr.PC., they denied to have made any such statement. It is not discernible from the evidence of PW14, the Investigating Officer, that when he was examined in the court, his attention was drawn to the passage marked for the purpose of contradiction, and proved in his deposition, who again by referring to the Police statement deposed about the witness having made that statement, which process again involves referring to the Police statement and culling out that part with Crl.A.No.666 of 2010 -33- which the maker of the statement was intended to be contradicted. Further, the testimony of Pws.2 and 3 in their Section 161 statement is not corroborated by any reliable evidence in support of the prosecution case. Still further, there are apparent contradictions and discrepancies in the testimony of PWs.2 and 3, which cast a serious doubt on the prosecution case. In such circumstances the testimony of PWs.2 and 3 in their Section 161 statement cannot be looked into for any purpose much less to discredit their testimony. 43. As we have already noticed, in order to prove the occurrence, the prosecution relied on the evidence of PWs.2 and 3. During chief examination, PW2 did not give any incriminating evidence as to the overt acts alleged to have been committed by the accused leading to the injury sustained by the deceased. As far as PW3 is concerned, even going by the prosecution case, she reached the place of occurrence only after the overt acts alleged to have been committed by the accused. PW3 also did not give any incriminating evidence against the accused. Accordingly, both PWs.2 and 3 were declared hostile and they were permitted to be cross-examined by the Prosecution. During cross-examination, with reference to the relevant portions of the Section 161 statement, nothing could be brought out from PWs.2 and 3 to support the prosecution version. Going by the Crl.A.No.666 of 2010 -34- prosecution case, PWs.2 and 3 are the only persons who have witnessed either whole or part of the alleged occurrence. Another witness examined by the prosecution as PW5, who was also declared hostile, reached the place of occurrence only after the overt acts alleged to have been committed by the accused, even going by the prosecution case. Once they were declared hostile and nothing could be brought out during their cross-examination to support the prosecution case, their testimony under Section 161, which is not corroborated by any reliable evidence in support of the prosecution case, cannot be taken as the basis for conviction of the accused. In that view of the matter, the approach of the trial court in the impugned judgment is clearly erroneous, which cannot be sustained in law. 44. Section 6 of the Evidence Act, 1872 deals with relevancy of facts forming part of same transaction. As per Section 6 of the Act, facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration (a) to Section 6 reads thus; "(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of Crl.A.No.666 of 2010 -35- the transaction, is a relevant fact." The principle embodied in Section 6 of the Evidence Act is usually known as the principle of 'res gestae', which is a kind of exception to the rule against hearsay. What it means is that a fact which, though not in issue, is so connected with the fact in issue 'as to form part of the same transaction' becomes relevant by itself. 45. In **Gentela Vijayavardhan Rao v. State of A.P. (1996 (6) SCC 241 : 1996 CriLJ 4151)** the Apex Court held that, the principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestate recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue 'as to form part of the same transaction' becomes relevant by itself. This rule is roughly speaking an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, Crl.A.No.666 of 2010 -36- however slight it may be, which was sufficient enough for fabrication, then the statement is not part of res gestate. 46. In **Sukhar v. State of U.P. (1999 (9) SCC 507 : 2000 CriLJ 29)** the Apex Court held that, Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of 'res gestate', must have been made contemporaneously with the acts or immediately thereafter. 47. In **Bhairon Singh v. State of M.P. (2009 (13) SCC 80 : 2009 CriLJ 3738)** the Apex Court held that, the rule embodied in Section 6 of the Evidence Act is usually known as the rule of 'res gestae'. What it means is that a fact which, though not in issue, is so connected with the fact in issue 'as to form part of the same transaction' becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence. Crl.A.No.666 of 2010 -37- 48. In **State of Maharashtra v. Kamal Ahmed Mohammed Vakil Ansari (2013 (12) SCC 17 : 2013 CriLJ 2069)** the Apex Court held that, the test to determine admissibility under the rule of 'res gestae' is embodied in words 'are so connected with a fact in issue as to form a part of the same transaction'. It is therefore, that for describing the concept of 'res gestae', one would need to examine, whether the fact is such as can be described by use of words/phrases such as, contemporaneously arising out of the occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like. It is difficult for us to describe illustration (a) under Section 6 of the Evidence Act, specially in conjunction with the words 'are so connected with a fact in issue as to form a part of the same transaction', in a manner differently from the approach characterised above. Para.41 of the judgment reads thus; "41. ....... In our considered view, the test to determine admissibility under the rule of 'res gestae' is embodied in words 'are so connected with a fact in issue as to form a part of the same transaction'. It is therefore, that for describing the concept of 'res gestae', one would need to examine, whether the fact is such as can be described by use of words/phrases such as, contemporaneously arising out of the Crl.A.No.666 of 2010 -38- occurrence, actions having a live link to the fact, acts perceived as a part of the occurrence, exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like. It is difficult for us to describe illustration (a) under Section 6 of the Evidence Act, specially in conjunction with the words 'are so connected with a fact in issue as to form a part of the same transaction', in a manner differently from the approach characterised above. We are satisfied, that the confessional statements recorded by the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case No.4 of 2009 to the witnesses at serial Nos.63 to 66 do not satisfy the ingredients of the rule of 'res gestae' incorporated in Section 6 of the Evidence Act. This is so because the statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah, cannot be said to have contemporaneously arisen along with the bomb blasts of 11.07.2006, which is the 'fact in issue'. The confessional statements of the accused (Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah) in Special Case No.4 of 2009 cannot be perceived to be part of the said 'fact in issue'. The statements made by Sadiq Israr Shaikh, Arif Badruddin Shaikh and Ansar Ahmad Badshah are most certainly not, spontaneous reactions arising out of the bomb blasts of 11.07.2006. The statements under reference are not reactions of the kind referred to above. Our above inferences are fully substantiated, if examined in conjunction with the legislative illustrations incorporated under Section 6 of the Evidence Act." Crl.A.No.666 of 2010 -39- 49. Having referred to the law relating to 'res gestae', we shall now examine whether the statement alleged to have been made by PW3, which has been marked as Ext.P4(b) will come under the purview of Section 6 of the Evidence Act. Gong by the prosecution case, after the deceased sustained injury, she was taken to Government Hospital by PWs 2 and 3 in an autorickshaw. In Section 161 statement made by PW3, she has stated that the deceased had told her about the incident and also the overt acts of the accused. The said portion of her Section 161 statement was confronted to her and marked as Ext.P4(b). The testimony of PW3 would not establish that the statement alleged to have been made by the deceased was almost contemporaneous with the acts which constitute the alleged offence or at least immediately thereafter, in order to make it admissible under the rule of 'res gestae' embodied under Section 6 of the Evidence Act. Admittedly, PW3 reached the place of occurrence after the commission of the alleged crime and as such she cannot be said to be a bystander. Therefore, the testimony alleged to have been made by PW3, which was marked as Ext.P4(b), will not come under the purview of Section 6 of the Evidence Act. 50. The Investigating Officer who was examined as PW14 deposed that the information regarding the incident was received in Crl.A.No.666 of 2010 -40- the Police Station on 11.1.2005 at 6.00 AM. PW14 has also denied the suggestion that the information in this regard was passed on to the police at 10.00 AM on 10.1.2005 itself. PW14 denied the suggestion that FIS was recorded after conducting a preliminary enquiry and that the deceased was not able to speak. On the other hand, PW1, during cross-examination deposed that, the police was informed about the incident before the deceased was taken to Sahayagiri Hospital. PW1 deposed further that, before the deceased was taken from Sahayagiri Hospital and even thereafter, he had gone to the Police Station and informed the police about the incident. Similarly, PW2, during cross examination by prosecution, has deposed that though he had gone to the Police Station, he was told that the Police will come and record statement at the hospital. Ext.P7 wound certificate issued by PW8 would also show that, the Police was informed about the incident at 10.45 AM. Therefore, the version of PW14 Investigating Officer that, the Police was informed about the incident only on 11.1.2005 at 6.00 AM cannot be accepted as true. The evidence on record, which we have already referred to, make it explicitly clear that the deceased was at Sahayagiri Hospital for nearly 3 hours. If the deceased was in a sound state of mind, as contended by the prosecution, the Police could have recorded her statement as to the cause of the injury. The failure Crl.A.No.666 of 2010 -41- on their part in recording statement of the deceased while she was at Sahayagiri Hospital casts a serious doubt on the prosecution case and the accused should be given the benefit of that doubt. 51. We also notice that, before the trial court the prosecution filed Crl.M.P.No.3405/2008, an application under Section 173(8) Cr.P.C. for an order to conduct further investigation of the case by the Superintendent of Police, Idukki since, according to prosecution, the investigation of the case was conducted in a most unfair manner and with a view to help the accused. In the said application it has been stated that, while the deceased was in Sahayagiri Hospital, the hospital authorities have informed the police and the police had taken the statement of the deceased in the presence of the Doctor. But, the police, hiding these facts laid down the charge based on the first information statement made on 11.1.2005 at 6.00 AM by PW1. To the said application, the accused filed their objection dated 18.8.2008. The trial court, by order dated 5.9.2008 in Crl.M.P.No.3405/2008 directed the Public Prosecutor to file affidavit furnishing the names of persons who were present at the time of recording the statement of the victim and who has recorded the statement of the victim, the approximate time, place, etc. and other necessary details, on or before 10.9.2008. Thereafter, the trial court allowed Crl.M.P.No.3405/2008, by order Crl.A.No.666 of 2010 -42- dated 10.2.2009, ordering further investigation in Crime No.2/2005 of Marayoor Police Station by an officer not below the rank of Deputy Superintendent, to be appointed by the Superintendent of Police. 52. The said order passed by the trial court was under challenge in Crl.R.P.No.968/2009 filed by the accused before this Court. By the order dated 16.6.2009, this Court dismissed the said Revision Petition holding that, there is nothing illegal, irregular or improper in the trial court ordering further investigation in the circumstances of the case. Accordingly, the trial court was directed to issue necessary direction to the officer concerned to complete further investigation at the earliest and to submit a further report. Pursuant to the said order, the Deputy Superintendent of Police, Narcotic Cell, Idukki filed a further report dated 28.12.2009. 53. As per the further report dated 28.12.2009 of the Deputy Superintendent of Police, Narcotic Cell, Idukki which forms part of the records in S.C.No.342/2007, on further investigation it was found that, immediately after the occurrence the deceased was brought to Marayoor Police Station in an autorickshaw from where she was taken to Government Hospital, Marayoor and from there to Sahayagiri Hospital. Though the Head Constable in charge of CD enquired with the deceased the cause of injury, without recording her statement she Crl.A.No.666 of 2010 -43- was asked to go to the hospital. Even thereafter, no steps were taken to record her statement at the hospital. By about 3.00 PM intimation was received from Sahayagiri Hospital, based on which the said Head Constable and another Police Constable went there. By that time, the deceased was not in a position to give any statement as she fell unconscious. Though the report filed by the Deputy Superintendent of Police, Narcotic Cell, Idukki after further investigation was not marked during trial, the conclusions in the said report, which forms part of the records in S.C.No.342/2007, would strike at the very foundation of the prosecution case. It is shocking that, the learned trial judge turned a blind eye to this crucial aspect and convicted the accused mainly based on the evidence of PW1 as to the declaration alleged to have been made by the deceased, relying on Section 32 of the Evidence Act. 54. In **Vijay Thakur v. State of H.P. (2014 (14) SCC 609 : 2014 CriLJ 4906)** the Apex Court held that, complete chain of events has to be established pointing out the culpability of the accused person and the chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. 55. The presence of blood stains at the place of occurance is revealed in Ext.P10 scene mahazar. Similarly, the presence of blood Crl.A.No.666 of 2010 -44- stains in the dress worn by the deceased is revealed from MOs.7 to 9. Further, at the time of recovery of MO3 crowbar, there was blood stains on it, which was found to be human blood in Ext.P22 report. Though the aforesaid materials probabilise the occurrence of an incident at the scene of occurrence, it is not at all sufficient to prove the prosecution case, since it is well settled principle of law that the prosecution has to prove its case beyond reasonable doubt and not on the touchstone of preponderance of probabilities. 56. In **Mustkeen @ Sirajudeen v. State of Rajasthan (2011 (11) SCC 724 : 2014 CriLJ 4906)** the Apex Court held that, with regard to Section 27 of the Evidence Act, what is important is discovery of the material object at the disclosure of the accused, but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between the discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Evidence Act is the information leading to recovery and not any opinion formed on it by the prosecution. 57. The prosecution relied much on the recovery of MO3 crowbar to establish the involvement of the 1[st] accused in the incident. Crl.A.No.666 of 2010 -45- Ext.P6(a) is the information alleged to have been passed by the 1[st] accused that led to recovery of MO3 crowbar. Ext.P6 is the mahazar prepared by PW14 in connection with recovery of MO3. PW7, the attestor to Ext.P6, did not give any incriminating evidence except that he signed Ext.P6. He did not even identify MO3 crowbar. The prosecution failed to prove the alleged recovery of MO3 at the disclosure of the 1[st] accused and establish a close link between the recovery of MO3 and its use in the commission of the alleged offence. 58. According to the prosecution case, there were disputes between PW1 and the deceased on the one side and the accused on the other side regarding putting up of a 'kayyala' and blocking of the pathway used by the accused to reach their property, which is situated on the western side of the property of PW1. MO3 crowbar is usually used for demolition works. According to the prosecution case, there was an attempt of demolition of 'kayyala' by the accused using MO3 crowbar. When the deceased obstructed the same, the incident took place. The mere existence of 'kayyala' near the place of occurrence, the presence of blood stains at the place of occurrence and also in MO3 crowbar when it was recovered are not at all sufficient to connect the accused to the alleged occurrence, in the absence of any substantive evidence in support of the prosecution case. PW8 doctor Crl.A.No.666 of 2010 -46- who issued Ext.P7 wound certificate has deposed that the injury noted in the said certificate can be caused by a weapon like the one shown to her. However, she has admitted during cross-examination that she was never questioned by the Police showing MO3 crowbar. The Deputy Police Surgeon who conducted postmortem, who was examined as PW9 has also stated that the injury noted can be caused by a weapon like the one shown to him. During trial, the accused has set up a defence that the deceased sustained injury due to fall on rocky area. However, the defence could not prove their case during trial. That by itself will not probabilise or support or strengthen the prosecution case as to the cause of injury of the deceased leading to her death. 59. As we have already noticed, the statements of material witnesses do not help the prosecution to bring home the guilt of the accused beyond reasonable doubt. Further, the testimonies of PW1 and also the occurrence witnesses are wholly unreliable, unbelievable, untrustworthy and self-contradictory. Still further, the entire prosecution evidence bristles with improbable versions and material infirmities. When the prosecution failed miserably to prove that the accused were responsible for causing the death of the deceased, motive, however strong, would not be sufficient to establish the guilt of the accused. Crl.A.No.666 of 2010 -47- 60. In **State of Punjab v. Sucha Singh (2003 (3) SCC 153 : 2003 CriLJ 1210)** the Apex Court held that, when the basic foundation of the prosecution case crumbled down, the motive becomes in consequential. At the same time, animosity is a doubleedged sword. It could be a ground for false implication, it could also be a ground for assault. 61. In the instant case, in view of the facts and circumstances as discussed above, the motive, however, strong merely creates a suspicion, which cannot take the place of proof of guilt of the accused. When the prosecution failed miserably to prove their case beyond any reasonable doubt, the trial court ought not to have arrived at a conclusion that, the deceased was beaten by the 1[st] accused with MO3 crowbar resulting fatal injury on her head, which had resulted in her death, on probabilities and surmises. When there is total lack of substantive evidence to prove the overt acts leading to the injury caused to the deceased, which had resulted in her death, the trial court went wrong in concluding that the prosecution has proved the offence alleged against the accused, who were convicted by the trial court under Sections 302 and 342 of IPC. 62. In the result, this appeal stands allowed. The conviction and sentence passed by the Additional Sessions Crl.A.No.666 of 2010 -48- Judge/Special Judge for NDPS in S.C.No.342 of 2007 against the appellants, who are accused Nos.1 and 3, namely; (1) Velmurukan, S/o.Saravanan, MGP 11/167, Pathikodu Kara, Marayoor Village (2) Karuppuswamy, S/o. Udayar, MGP, VII/278, Marayoor Gramam, Marayoor Village under Section 342 and 302 I.P.C against the 1[st] appellant/1[st] accused and under section 342 IPC against the 2[nd] appellant/3[rd] accused are set aside and the appellants/accused Nos.1 and 3 are acquitted for the said offence. The 2[nd] appellant/3[rd] accused has already undergone the sentence and the 1[st] appellant/1[st] accused is in jail. Therefore, the 1[st] appellant/1[st] accused shall be set at liberty forthwith, if his detention is not required in connection with any other case. **C.K. ABDUL REHIM, JUDGE** **ANIL K.NARENDRAN, JUDGE** pmn/