VIJAYAN v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 6TH DAY OF APRIL 2016/17TH CHAITHRA, 1938 CRL.A.No. 916 of 2010 -------------------------SC 303/2004 of ADDL. SESSIONS COURT (FAST TRACK-II), PALAKKAD CP 19/2004 of J.M.F.C.-II, PALAKKAD APPELLANT/ACCUSED NO.2:: -------------------------------------------- VIJAYAN, AGED 34 YEARS, S/O.BHASKARAN, ARATTUPUZHA HOUSE, KAMMATH LANE, KOTTAPPURAM,, THRISSUR. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/COMPLAINANT:: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. BINDU GOPINATH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.12.2015, ALONG WITH CRA. 2119/2010, THE COURT ON 6.4.2016 DELIVERED THE FOLLOWING: ## **K.T. SANKARAN & RAJA VIJAYARAGHAVAN.V., JJ** - - - - - - - - - - - - - - - - - - - - Crl.A.916 & 2119 of 2010 - - - - - - - - - - - - - - - - Dated 6[th] April, 2016 - - - - - - - - - - - - - - - - ## **JUDGMENT** ## _Raja Vijayaraghavan.V.(J)_ - 1.Appellants along with another person were indicted - and tried for having committed the murder of Ganeshan, a goldsmith, by forcible administration of poison. Motive was to rob the gold which was in the possession of the deceased. The gruesome incident was witnessed by Sachin, a co-worker of Ganeshan, whose evidence was found reliable, and the fate of the appellants were sealed. The Appellants challenge their conviction for murder and related offences. - 2.Prosecution case is that pursuant to a criminal conspiracy to commit theft and murder, on 16.6.2003 at about 1.30 p.m, the appellants, along with **Crl.A.Nos.916 & 2119/2010** 2 another, trespassed into the premises of the gold coloring shop run by PW 14 - Sivaji Vittal in door No.PMC.40/235 and committed murder of Ganeshan by forcibly administering poison. The appellants at the same place and time also inflicted injuries on PW 5 - Sachin, the assistant of deceased Ganeshan and attempted to forcibly administer poison to him. After silencing Ganeshan and injuring PW 5, the appellants along with another committed robbery of gold ingot weighing 663 grams kept in the said concern. Part of the incident was witnessed by PW 4, a resident of the same building and her cries attracted the attention of the neighbors. Police was intimated, and they shifted the injured persons to the hospital. Ganeshan was examined by the casualty Medical Officer of the District Hospital, Palakkad and he was declared dead. The Sub Inspector of police, Town North police station, Palakkad, recorded the statement of PW 5 - **Crl.A.Nos.916 & 2119/2010** 3 Sachin while he was undergoing treatment at the District Hospital, Palakkad, based on which crime No.319 of 2013 was registered. Sachin, a Maharashtrian, was not very fluent in the Malayalam language and hence, the assistance of another person was secured for translating his version of the incident. The investigation was conducted by PW 29, the Circle Inspector of police, who prepared Ext.P2 inquest over the dead body of Ganeshan. Thereafter, the body was sent for autopsy which was conducted by PW 21, the Police Surgeon of District Hospital, Palakkad, who issued Ext.P16 postmortem certificate . PW 29 visited the scene of crime and prepared Ext.P1 scene mahazar and also seized MO1 to MO6 which were found at the scene of crime. MO5 is the lower incisor tooth of PW5 - Sachin which had come off while he evaded the attempt made by the appellants to forcibly administer poison. The scientific assistant **Crl.A.Nos.916 & 2119/2010** 4 was summoned to the scene and traces of blood found at the scene of crime were seized for the purpose of analysis. The accused were arrested and based on the disclosure statements given by the 1[st] accused, MO7 series gold ingots, 2 in numbers, were seized from separate places. It was also revealed that the 1[st] accused was living incognito in a lodge at Kadampuzha and records were seized to prove this particular aspect. Later, investigation was completed and charge was laid before the jurisdictional Magistrate by PW 26 for the offence u/s 120-B, 449, 394, 307 and 302 r/w S.34 of the IPC. - 3.The learned Magistrate before whom the charge was laid took cognizance and finding that the offence was exclusively triable by a Court of Session, committed the case to the Court of Sessions, Palakkad. The case 5 ## **Crl.A.Nos.916 & 2119/2010** was thereafter made over to the Additional Sessions Court (Fast Track No.II), Palakkad for trial and disposal. 4.The learned Additional Sessions Judge after following the preliminary procedures framed charge for the offence under S.120B, 449, 394, 307 & S.302 r/w S.34 of the IPC. - 5.The charge was read over to the accused who pleaded not guilty and claimed that they be tried. The prosecution examined as many as 29 witnesses as PWs 1 to 29 to prove its case. Exts.P1 to P33 were marked on their side and 11 material objects were produced and identified as MO1 to MO11. After the prosecution evidence was closed, the accused were questioned with regard to the incriminating items of evidence brought out in evidence against them u/s **Crl.A.Nos.916 & 2119/2010** 6 313 (1)(b) of the Code of Criminal Procedure. They denied the same and maintained that they were innocent. On the side of the defence, Ext.D1, photocopy of the recovery mahazar, was marked. 6.The learned Sessions Judge after evaluating the oral and documentary evidence let in, came to the conclusion that the prosecution had succeeded in establishing that the accused had conspired together to commit murder and to rob the gold and that it was in pursuance to the same that the offence of murder was committed. It was further held that the prosecution was successful in bringing home the charge against the accused. The accused were accordingly found guilty and were convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default to undergo simple imprisonment for 4 months each **Crl.A.Nos.916 & 2119/2010** 7 under S.302 r/w S.34 of the IPC. They were sentenced to undergo rigorous imprisonment for 6 months each under S.120B r/w S.34 of the IPC and to undergo rigorous imprisonment for 7 years each and to pay a fine of Rs.5,000/- and in default of payment to undergo simple imprisonment for 2 months. The appellants were also sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.5,000/- and in default to undergo simple imprisonment for 2 months each u/s 394 r/w S.34 of the IPC and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for 2 months each u/s 449 r/w S.34 of the IPC. 7.The aforesaid findings are under challenge in these appeals preferred by accused Nos.1 & 2. In the course of proceedings, the 3[rd] accused died and **Crl.A.Nos.916 & 2119/2010** 8 offence as against him stood abated. 8.We have heard the learned counsel appearing for the appellant/accused No.1 in Crl.A.2119 of 2010, the learned Senior counsel appearing for the appellant/accused No.2 in Crl.A.916 of 2010 and also the learned Public Prosecutor. 9.The learned counsel appearing for the 1[st] accused submitted that the evidence let in by the prosecution was inconclusive and could not have been the basis for conviction. According to the learned counsel, the crime was registered at 3.30 p.m on 16.6.2003 based on the statement given by PW 5, a Gujarati, who was not conversant with Malayalam language. The witness had stated that his employer, PW 14 had translated his version to the police. PW 14, on the other hand, had unequivocally stated that he had come to **Crl.A.Nos.916 & 2119/2010** 9 Palakkad only late in the day. This according to the learned counsel, would throw serious doubts on the genesis of the prosecution version. It was further pointed out that the evidence let in by PW 5 was beset with omissions and contradictions and his version before Court was at variance with Ext.P3 FI statement and his 164 statement. It was further pointed out that the prosecution version that the incisor tooth of PW 5 had come off during the attempt to administer poison to PW 5, also cannot be believed. Lack of injuries on the face and on the areas surrounding the mouth of the deceased was projected as yet another reason to ditch the evidence of the said witness as unbelievable. It was further submitted that the reliance placed by the learned Sessions Judge on the alleged recovery of MO7 series ingots at the instance of the 1[st] accused could not be accepted, as the evidence was not convincing enough. **Crl.A.Nos.916 & 2119/2010** 10 10.The learned Senior counsel appearing for the 2[nd] accused incisively argued that several suspicious circumstances envelop the prosecution version making it difficult to place implicit reliance on the same. According to the learned Senior counsel, the benefit of the inconsistencies in the prosecution version should be extended to the accused. It was submitted that there has not been a proper appreciation of evidence in the case and the conclusion arrived at by the learned Sessions Judge is based on surmises and conjectures. The learned Senior counsel also attacked the genesis of the prosecution version and submitted that Ext.P3 is ante timed. According to the learned Senior counsel, there was no possibility of recording the FI statement at the time and place as PW 14 arrived at the scene only at 4.30 p.m. It was pointed out that the learned **Crl.A.Nos.916 & 2119/2010** 11 Sessions Judge had ignored the substantial flaws in the prosecution version. The learned Senior counsel further pointed out that Ext.P31 certificate of chemical analysis would destroy the very case of prosecution as the said certificate, prepared after examining the contents of viscera of deceased Ganeshan, conclusively states that no poison was detected. It was further argued that Ext.P20 certificate of chemical analysis issued in respect of the contents of the pepsi bottle found from the place of occurrence reveals absence of sodium cyanide. When the prosecution version is that Ganeshan was administered fatal poison which was contained in the said bottle, the absence of any sort of poison in the visceral contents and also in the pepsi bottle would knock off the bottom of the prosecution version, is the submission of the learned Senior counsel. 12 ## **Crl.A.Nos.916 & 2119/2010** 11.The learned Public Prosecutor ably countered the arguments advanced by the learned counsel appearing for the appellants. According to the learned Public Prosecutor, the trial Court has given cogent and convincing reasons to accept the evidence of PW 5 - Sachin whose presence at the scene of occurrence could not be doubted. He is an injured witness and his evidence was amply corroborated by the evidence of PW 4. PW 4 also had sustained injuries as revealed from Ext.P33 wound certificate. It was pointed out by the learned Public Prosecutor that both the witnesses had prior acquaintance with the 1[st] accused and they had also identified the 2[nd] accused in the identification parade conducted by PW 28, the learned Magistrate. Opposing the contention of the learned counsel appearing for the appellant that the prosecution had not succeeded in proving the cause of death of the deceased, it was argued by the learned Public **Crl.A.Nos.916 & 2119/2010** 13 Prosecutor that the evidence let in by PW 21, the police surgeon was emphatic and left no doubt that the cause of death was consistent with death due to poisoning. It was also argued that there is direct evidence of administration of a poisonous liquid which resulted in the death of Ganesan and there was no reason to doubt the same. Finally it was argued by the learned Public Prosecutor that the omissions and contradictions brought out by the defence in the evidence of PWs 4 & 5 are trivial and were not of such a nature to doubt the prosecution version. The learned Public Prosecutor also placed reliance on the judgments reported in **Gentela Vijayavardhan Rao and Another v. State of A.P. (1996 (6) SCC 241)** , **Suryamoorthi and another v. Govindaswamy and others (AIR 1989 SC 1410)** , **Bhaskaran v. State of Kerala (1985 KLT 122)** , **State rep. By Inspector of Police, Tamil Nadu v. Sait Alias** **Crl.A.Nos.916 & 2119/2010** 14 **Krishnakumar (2008 (15) SCC 440)** , and **Shanmughan v. State of Kerala ( 2012 (2) SCC 788)** to sustain the conviction and sentence. 12.The prosecution relies on the evidence of PW4 and PW5 to prove the incident. The crime was registered based on the FI statement given by PW5 who was working as an Assistant to deceased Ganeshan. We shall advert to the evidence of PW5 as he gives a detailed version of the incident. PW5 testified that he is a Maharashtrian and was employed by PW 14 - Sivaji Vittal in his establishment at Pattikkara. Deceased Ganeshan was also working with him. PW 5 along with the deceased had reached their place of work at about 10.00 a.m. from Thrissur. Ganeshan had with him 806 grams of gold which he had sourced from Chemmannur jewellery. They started their work of purifying the gold and at about 12.00 a.m, the 1[st] **Crl.A.Nos.916 & 2119/2010** 15 accused Kannan, with whom PW 5 had acquaintance since 2 - 3 months, came to their shop and was there for about 10 - 15 minutes. After inquiring about various aspects of their work and the quantity of gold received, the 1[st] accused left the place. At about 1.00p.m, the 1[st] accused returned with A2 - Vijayamony and A3 - Unnikrishnan. PW 5 and the deceased were sitting idle at that point of time. The deceased asked PW5 to sit near the counter as he wanted to wash his hands and legs. A1 - Kannan was holding a half litre Pepsi bottle. The deceased had kept the gold inside the drawer of the table. After Ganeshan had returned, PW 5 went outside to wash his hands and legs. When he returned, he saw A2 and A3 holding the hands of Ganeshan and A1 was seen forcibly pouring some liquid contained in the pepsi bottle into the mouth of the deceased. Ganeshan **Crl.A.Nos.916 & 2119/2010** 16 asked PW 5 to flee from the place after taking the gold. PW 5 took the gold and when he reached near to the door, A2 - Vijayamoni caught him on his hands and pulled him back. PW 5 was taken to another room by A2 and A1 caught him from behind. A2 attempted to pour the liquid contained in the pepsi bottle into the mouth of PW 5. He shut his mouth tight and Vijayan tried to open his mouth using his fingers. PW 5 bit his fingers and the bottle of pepsi fell on the ground from the hands of A2. When the hand was pulled back sharply, the lower incisor tooth of PW 5 also came off and it fell on the ground. A2 was carrying a hammer and PW5 was assaulted on his head and face using the same. At that time, PW 5 shrieked loudly and hearing the same, PW 4 came to the scene. The gold was held by PW 5 on his left hand and A1 - Kannan hit him on his hand with an iron rod. He dropped the gold which was taken by A1 and he **Crl.A.Nos.916 & 2119/2010** 17 fled from the scene. Ganesan had fainted after consuming the liquid contained in the Pepsi bottle. Several locals assembled followed by the Police. Ganeshan and PW 5 were shifted to the hospital. He later came to know that Ganesan had died. He identified his signature in Ext.P3 FI Statement. He intimated the incident to PW 15 - Sivaji Vittal, his employer. He also stated that his 164 statement was recorded by the learned Magistrate. He identified the material objects which were seized from the scene of crime . 13.PW 4 is the lady who resides in the same building and claims to have seen the latter half of the incident. She testified that the building where she resided belonged to her son-in-law and deceased Ganesan and PW 5 – Sachin were occupying a portion of the same house. They were doing processing of gold. **Crl.A.Nos.916 & 2119/2010** 18 According to the said witness, she heard a cry from that portion of the house and she rushed to that area. She witnessed the 2[nd] accused hitting PW5 with a hammer on his head. She raised a hue and cry and in order to prevent her from coming near to the room, A2 Vijayan threw a stone at her. She also had seen the first accused standing inside the room and duly identified the 1[st] accused. She identified MO2 hammer and MO6 stone. She went to the hospital and secured treatment. According to the said witness, Ganesan was not conscious. She also identified the accused standing in the dock and stated that she had taken part in the test identification parade . 14.PW 15 is a head load worker and he used to work in the Pattikkara area. He deposed that he had occasion to see the accused fleeing from the scene of crime. 19 ## **Crl.A.Nos.916 & 2119/2010** He went to the scene of occurrence and found one person lying unconscious and another person who was bleeding. He went on to identify the accused in Court . 15.In order to establish that Ganeshan had died due to forceful administration of poison, prosecution examined PW 21 - Dr.P.B.Gujral, the Police Surgeon, District Hospital, Palakkad, who conducted the postmortem on 17.6.2003. Ext.P16 is the postmortem certificate. The following ante-mortem injuries were noted :- i). Crescentic abrasion 0.8 x 0.2 cm, oblique on right half of under-chin area, upper left end 1.2 cm below tip of chin in midline. ii). Contusion 1.5 x 1.2 x 0.2 cm on front of right leg, 3 cm below knee. **Crl.A.Nos.916 & 2119/2010** 20 16.He noted that blood stained fluid with a bright reddish hue was coming out from the nostrils. He also noted postmortem staining with a bright reddish hue on back of trunk which was fixed. The liver, spleen and kidneys were intensely congested and the stomach contained 50 ml of dark brownish fluid, emitting some unusual smell. Mucosa was intensely congested and it showed mild corrosion. All other organs were intensely congested with a bright reddish hue, otherwise normal. Blood had a bright reddish hue. The opinion as to cause of death was that “postmortem findings are consistent with the history of death due to poisoning”. It is further opined that the nature of the poison could be ascertained only after receipt of the chemical analysis report. PW 21 was extensively cross examined and he reiterated his version that the bright reddish hue found in the **Crl.A.Nos.916 & 2119/2010** 21 internal body parts was an indication that the person had died due to cyanide poisoning. It was further asserted that reddish hue is not due to any disease. 17.To ascertain the nature of poison, one sealed packet containing five sealed bottles and one packet containing the viscera and other contents of deceased Ganeshan were forwarded to the chemical examiner's laboratory, Thiruvananthapuram, as per PM No.293/03 dated 17.6.2003 for the purpose of analysis. Ext. P31 is the report of chemical analysis dated 23.1.2010 of the Assistant Chemical Examiner which reveals that no poison was detected in the internal body parts. It is relying on the above report that it was vehemently argued by the learned Senior counsel for the appellant that the learned Sessions Judge could not have held that Ganeshan had died due to poisoning. **Crl.A.Nos.916 & 2119/2010** 22 18.The question is whether the whole prosecution case has to be thrown overboard owing to absence of a positive report of the visceral contents. We have already narrated the observations of PW 21 who had conducted the autopsy. He had specifically noted the blood stained fluid with a bright reddish hue coming out from the nostrils and postmortem staining with a bright reddish hue on the back of trunk. The internal organs were all intensely congested with a bright reddish hue and the blood had a bright reddish hue. He has asserted that the death was due to poisoning and not due to any disease. We have no reason to disbelieve the findings of the Forensic Surgeon, who asserted that he had conducted 8000 autopsies during his career. 19.More over, Modi in his Text book of Medical **Crl.A.Nos.916 & 2119/2010** 23 Jurisprudence and Toxicology, 24[th] edition, Chapter 12 , page No.262 has noted postmortem appearance in a case of poisoning by hydro cyanic acid as follows: **Postmortem appearance** : the skin presents a livid or violet colour. Postmortem stains are often bright red or pink due to the formation of cyanmethaemoglobin and also due to the fact that the tissues cannot take up oxygen of the blood , leaving it bright red even in the veins. Thus , asphyxial death occurs in the presence of oxygen. The fingers are clinched the finger nails are blue the jaws are firmly closed and there is froth at the mouth. The eyes may be bright , glistening and prominent with dilated pupils. The odour of hydro cyanic acid may be noticed on opening the body, bur it is liable to fade quickly. There may be blood froth in the trachea and bronchi. The right side of the heart is full and engorged with venous blood, which is fluid and bright red. The **Crl.A.Nos.916 & 2119/2010** 24 lungs are congested. The serous cavities are ecchymosed. In poisoning by hydro cyanic acid, the mucous membrane of the stomach and duodenum are often red and congested although it may be normal in some cases. In cases where potassium cyanide has been taken, the lips and the mouth may be corroded, and the mucous membrane of the stomach and duodenum may be bright red, inflamed, softened and even ulcerated. 20.The above observations of the learned Author tallies with the postmortem findings recorded by PW 21 . We have no reason to doubt the conclusive opinion tendered by PW 21. Though due to absence of chemical analysis the fatal dose of poison or its exact composition could not be determined, we hold that the prosecution has convincingly proved that the death was due to administration of poison. **Crl.A.Nos.916 & 2119/2010** 25 ## 21.In **Joshinder Yadav V State of Bihar (2014 (4)** **SCC 42),** the Apex Court had held that in cases where there is clinching evidence on record to hold that the death was due to poisoning, the Court has to proceed to record the conviction even in the absence of a viscera report. The Apex Court had also deprecated in the above judgment about flaws in investigation and the constant failure of the Investigating Agency in obtaining the report of examination of visceral contents prior to submission of charge sheet by the Police . 22.Though the defence relied on several judgments to advance their case that the conviction was bad due to absence of a report of viscera, we note that those judgments were rendered in cases where the prosecution had sought to bring home the guilt of the accused on the basis of circumstantial evidence alone. 26 ## **Crl.A.Nos.916 & 2119/2010** The instant is one of those rare cases where the accused had attempted to forcibly administer poison and the same was witnessed by PW 5, who was also injured in the transaction and therefore, the principles laid down in those cases cannot be strictly applied to the fact situation herein. 23.We cannot subscribe to the argument of the learned Counsel that due to the lapses in investigation, the case of the prosecution has to be thrown overboard. We note that Ext.P31 report of analysis was furnished after a lapse of almost seven years and the reason for the unreasonable delay can be attributed only to the laches of the investigating agency. As held in **Joshinder Yadav** ( supra) it was the duty of the Investigating officer to secure a report and to furnish the same before Court without any delay. Without doubt, there has occurred numerous instances of **Crl.A.Nos.916 & 2119/2010** 27 negligence and lapses in the investigation conducted by PW 29 , the Investigating Officer. But in view of the other clinching materials, the lapses or defects in the investigation cannot lead to the acquittal of the accused. 24.In **C. Muniappan v. State of T.N. [ (2010) 9 SCC 567]** the Apex Court had held in Para 55 of the Judgment as follows: _55. ... The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded._ 25.In view of the above, the failure to obtain a prompt 28 ## **Crl.A.Nos.916 & 2119/2010** report of the visceral contents in the circumstances of the case is no more than a deficiency in the investigation of the case and such deficiency does not necessarily lead to a conclusion that the prosecution case is totally unworthy of credit. 26.We shall now move on to the injuries sustained by PW 4 and 5 and accused Nos. 1 and 2 in the course of the incident which, according to the prosecution, went a long way in establishing the genuineness of its version of the incident. The prosecution examined PW 11, the Civil Surgeon of the District Hospital, Palakkad, to bring out the fact that he had occasion to examine PW 5 – Sachin. According to the said witness, he had issued Ext. P8 discharge certificate which reveals that Sachin had sustained traumatic loss of lower incisor tooth. It was also stated that the patient was admitted on 16.6.2003 and discharged on 29 ## **Crl.A.Nos.916 & 2119/2010** 21.6.2003. Ext.P19 is the Accident Register–cumwound certificate dated 16.6.2003 prepared by the Assistant Surgeon , District Hospital , Palakkad after examining PW 5 – Sachin at 2.30 p.m. The doctor has noted a lacerated wound on the scalp and also a maxillary swelling under the right eye. The alleged history noted is assault at the instance of Kannan and two others. Ext.P33 is the wound certificate dated 17.6.2003 issued by the Assistant Surgeon , attached to the District Hospital, Palakkad concerning PW 4 - Saraswathy. It is noted in the certificate that she has sustained an injury on her elbow on being hit by a stone. She has stated that the stone was thrown by Kannan and others. It is also worthwhile to note that the prosecution had examined PW 22 - the Senior Lecturer, Medical College Trissur , and had marked in evidence Ext. P17 certificate . Ext. P17 reveals that A 1 – Kannan had sustained some minor injuries. The **Crl.A.Nos.916 & 2119/2010** 30 prosecution also brought on record Ext.P18 certificate by examining PW 21. Ext.P18 reveals that A2 – Vijayan had sustained contused abrasions and superficial lacerated wound in a semi circular line on his finger. Two other superficial lacerated wounds are also noted in Ext.P18 suggestive of the fact that the said injuries were sustained when he attempted to forcibly administer the poisonous liquid to PW 5 - Sachin. The semi circular injuries sustained on his finger is significant as the case of the prosecution is that the same was sustained when he was bitten by PW 5 when he attempted to forcibly administer the liquid contained in the bottle. Though it was submitted by the learned Senior Counsel that the injuries noted did not strictly tally with the ones noted at the time of arrest , we do not think it very significant as the nature of examination and assessment by the arresting officer and the doctor is ## **Crl.A.Nos.916 & 2119/2010** **==> picture [13 x 9] intentionally omitted <==** quite different . Exts. P9 , P16 , P19 , P17, P18 and P33, according to us, corroborate the version of PW 5 and PW 4 and it goes a long way in making their version credible . 27.The learned counsel appearing for the appellant referred to various omissions brought out in cross examination in the evidence of PW 4 and PW 5 and endeavored to bring home the point that the evidence of the witnesses are not credible. The improvements made by PW5 were pointed out meticulously by the learned counsel appearing for the appellants. Admittedly, PW 5 had been staying and working in the state of Kerala. He was first examined by the doctor at 2.30 p.m. His FI statement was recorded later at 3.30 p.m by PW 25 , the Sub Inspector of Police, attached to Town North Police Station , Palakkad. When PW 5 was cross examined, he had 32 ## **Crl.A.Nos.916 & 2119/2010** stated that he had given the statement in Marathi and it was his employer who had translated the same to the police. PW 14 - Sivaji Vittal stated that he had come to the scene of crime only at 4.30 p.m. This inconsistency was also raked up by the defence to convince us that the earliest version of the incident is suspect. We are unable to agree . 28.PW 25 has stated that Sachin was not very fluent in Malayalam and some person had assisted him while he was recording the statement from Sachin. He further stated that he had difficulty in discerning some words. According to the learned Public Prosecutor, Sachin was only 17 years old when the gruesome incident had taken place in his presence. His evidence was recorded in Court after 7 years and the inconsistencies and omissions pointed out by the defence in his evidence are insignificant and **Crl.A.Nos.916 & 2119/2010** 33 innocuous. 29.We note that PW 5 was questioned by the police on more than one occasion. The Investigating Officer after taking charge of the investigation had questioned the first informant and that too in the presence of PW 14, his employer. The learned Sessions Judge has taken note of this aspect and it was held that the minor variations in the evidence tendered by PW 5 from the first information statement may not have much of a material bearing in view of the above. 30.It is by now settled that while appreciating the evidence of a witness, the Court has to take into consideration whether the contradictions/omissions brought out were of such magnitude so as to materially affect the trial. Minor contradictions, 34 ## **Crl.A.Nos.916 & 2119/2010** inconsistencies, embellishments or improvements in relation to trivial matters, which do not affect the core of the case of the prosecution, cannot be made a ground for rejection of evidence, in its entirety. 31.The trial court, after going through the entire evidence available, has formed an opinion about the credibility of PW 4 and 5, the star witnesses of the prosecution, and the appellate Court in the normal course of action, would not be justified in reviewing the same again, without providing justifiable reasons for the same. **(See State v. Saravanan, (AIR 2009 SC 152** ). In view of the overwhelming evidence proving the involvement of the appellants, the Trial Court had rightly brushed aside and disregarded minor omissions and contradictions, which, according to us, had no material bearing on the prosecution case. None of these accused have been able to ## **Crl.A.Nos.916 & 2119/2010** **==> picture [13 x 9] intentionally omitted <==** controvert, leave alone make a dent in the prosecution case. The prosecution version has a ring of truth and some minor flaws in the investigation cannot be taken as material to reject the prosecution version . - 32.After meticulously examining the evidence of PW 5 - Sachin and PW 4 - Saraswathy and the other materials adduced by the prosecution , we are of the view that the learned Sessions Judge had rightly believed their version of the incident. 33.Furthermore, the testimony of an injured witness finds a special status in law. Evidence given by an injured witness should be relied upon unless there are grounds for rejection on the basis of major contradiction and discrepancies therein. (See **Jarnail Singh v. State of Punjab (2009 (9) SCC 719),** **Crl.A.Nos.916 & 2119/2010** 36 **Balraje v. State of Maharashtra (2010 (6) SCC 673)** and **Abdul Sayeed v. State of M.P (2010 (10) SCC 259).** 34.We cannot agree with the contention of the learned counsel appearing for the 1[st] accused that the recovery at the instance of MO 7 series ingots has not been proved in the instant case. It was based on the confessional statement given by the 1[st] appellant that MO7 series ingots were recovered from separate places. PW 6 - Abdul Basheer was examined to prove the recovery of the larger ingot among MO7 series. He testified that it was in his presence that the accused had taken out the gold ingot wrapped in a cover from a burrow in the wall of the shop owned by one Haneefa. Ext.P5 is the mahazer. PW 10 - Raju, the owner of Vignesh Silver, Coimbatore, was **Crl.A.Nos.916 & 2119/2010** 37 examined to prove that the 1[st] accused had sold the gold ingot weighing 6.7 gms at his shop at Coimbatore and that he had produced the same before the police. The prosecution had also examined PWs 18 , 19 and 20 , the employees of Chemmannur Jewellery , Palakkad, to prove the fact that gold weighing 806 gms was given to Ganeshan on 16.6.2003. PW 5 - Sachin , the injured witness , who was present with deceased Ganeshan had identified MO 7 series ingots which were recovered at the instance of the 1[st] accused . The learned Sessions Judge has evaluated the evidence of these witnesses and have held that there is nothing to disbelieve the evidence of PWs 6, 7, 10 and 29 . We have independently evaluated the evidence and we do not find any reason to view the recovery with suspicion. 35.The learned counsel highlighted the fact that Ext.P **Crl.A.Nos.916 & 2119/2010** 38 20 analysis report revealing the absence of cyanide in the pepsi bottle would reveal the falsity of the prosecution version. According to the learned counsel, the prosecution allegation is that the deceased was forcibly administered some liquid from a Pepsi bottle by the accused. The said bottle was seized by the Investigating officer at the time of preparation of Ext.P1 scene mahazer. Ext.P20 certificate of analysis marked through PW 24, revealed that no poison could be detected in MO7 pepsi bottle. It is also reported that MO6 bottle seized from the scene of crime revealed the presence of Hydrogen Cyanide. The learned Sessions Judge has noted that the contemporaneous records prepared by the investigating officer revealed that the Pepsi bottle was almost empty when the same was forwarded to the analyst. Hydro cyanic acid and its salts are degradable and it evaporates at room temperature. **Crl.A.Nos.916 & 2119/2010** 39 The accused had tried to administer forcibly the liquid contained in the said bottle to PW 5 - Sachin and in view of the stiff resistance offered by him, which resulted in the loss of his lower incisor tooth, they were not successful. The bottle was dropped on the ground and by the time the same was seized, it contained only a few drops of liquid. The incident had occurred on 16.6.2003 and Ext.P20 reveals that the bottles were forwarded only on 7.10.2003. The report is dated 17.10.2003. Much cogitation is not required to conclude that storage in room temperature will result in rapid deterioration or evaporation of the cyanide salts. We have no doubt in our minds that the learned Sessions Judge has correctly appreciated this aspect and has held that absence of detection of poison in the Pepsi bottle cannot have much significance in the facts of the instant case. **Crl.A.Nos.916 & 2119/2010** 40 36.It is interesting to note that the learned Public Prosecutor as well as the learned Counsel appearing for the appellants had placed reliance on the principles laid down by the Apex Court to advance their respective views . They reminded us of the three propositions enumerated by the Apex Court in **Anant Chintaman Lagu Vs. The State of Bombay (AIR 1960 SC 500)** which had to be established by the prosecution in a case of murder by poisoning. They are (a). that death took place by poisoning; (b). that the accused had the poison in his possession; and (c). that the accused had an opportunity to administer the poison to the deceased. Further, in **Sharad Birdhichand Sarda v. State of Maharashtra (1984 (4) SCC 116),** Justice Fazal Ali, J. formulated certain propositions to indicate that in a case relating to murder by poison, four important circumstances can justify a conviction and His Lordship laid down the **Crl.A.Nos.916 & 2119/2010** 41 following principles: - _"1. there is a clear motive for an accused to administer poison to the deceased,_ - _2 that the deceased died of poison said to have been administered,_ _3. that the accused had the poison in his possession,_ _4. that he had an opportunity to administer the poison to the deceased"_ - 37.The cases referred to above hinged on circumstantial evidence unlike the instant case where there is direct proof of all the above elements. We have no doubt in our minds that the learned Sessions Judge has rested his conclusions on very sound materials. - 38.After having undertaken a complete and comprehensive appreciation of the vital features of the case and the entire evidence on record, with **Crl.A.Nos.916 & 2119/2010** 42 reference to the broad and reasonable probabilities of the case, we are of the view that the trial Court has rightly recorded the order of conviction and sentence non all counts. We do not feel that the conviction and sentence awarded by the learned Sessions Judge call for any interference by this Court in exercise of appellate powers. We find ourselves in complete agreement with the findings and the ultimate conclusion and resultant order of conviction passed by the learned Sessions Judge and we are of the view that no other view, except the one as arrived at by the trial Court, is possible in the instant case. There is absolutely no reason or justifiable ground to interfere in the judgment, conviction and sentence. 27.Accordingly, the appeal is dismissed. The conviction and sentence are confirmed. The appellants shall be entitled to set off as provided u/s 428 of the Code of **Crl.A.Nos.916 & 2119/2010** 43 Criminal Procedure for the period they have been in custody in this case, subject to the orders passed by the authority u/s 432/ 433 of the Code of Criminal Procedure. ## **Sd/-** **K.T. SANKARAN Judge** **Sd/RAJA VIJAYARAGHAVAN.V. Judge** Mrcs/23.12.2015 //True Copy// P.S.To Judge