Vinod v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 18[TH] DAY OF NOVEMBER 2021 / 27TH KARTHIKA,** ## **1943** **CRL.A NO. 295 OF 2017** **AGAINST THE ORDER/JUDGMENT IN SC 1296/2014 OF ADDITIONAL SESSIONS COURT-III, KOLLAM CP 123/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,** **PUNALUR, KOLLAM** ## **APPELLANT/ACCUSED:** VINOD, S/O.PODIYAN, C.NO.903 CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV ADV.M.DINESH (STATE BRIEF) ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY D.G.P., HIGH COURT OF KERALA, ERNAKULAM. ## **OTHER PRESENT:** SRI.V.S.SREEJITH, PUBLIC PROSECUTOR **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2021, THE COURT ON 18.11.2021 DELIVERED THE FOLLOWING:** Crl.A 295/2017 -2- **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------Criminal Appeal No.295 of 2017 -----------------------------------------Dated this the 18[th] day of November, 2021** ## **J U D G M E N T** ## Jayachandran, J. A casual verbal spat over a trifling issue culminated in the termination of one’s life and the ruination of another. 2. The above criminal appeal stems from the judgment of conviction and the order of sentence dated 28.03.2016 of the Additional Sessions Court-III, Kollam in S.C. No.1296/2014. The sole accused faced indictment for offences under Sections 302 and 324 of the Indian Penal Code. By virtue of the judgment impugned, the Sessions Judge found the accused guilty of both the offences alleged and sentenced him to undergo imprisonment for life and a fine of Rs.5,00,000/-, with a default clause, for the offence under Section 302 of the Penal Code. The accused is also sentenced to undergo rigorous Crl.A 295/2017 3 imprisonment for a period of two years and a fine of Rs.50,000/-, again with a default clause, for the offence under Section 324 of the Penal Code. The substantive sentences were directed to run consecutively. 3. The prosecution case unfolds as follows: On 26.4.2014 at 8.30 p.m., the accused, Vinod (hereinafter referred to as 'the accused') stabbed the deceased, Sibin Sabu (hereinafter referred to as 'the deceased'), firstly on his buttock and thereafter, on his chest by using MO1 knife, pursuant to a verbal spat, at the roadside leading to _Marthandankara Lakshamveedu_ Colony from _Anchal-Kulathupuzha_ public road, with the intention of causing death. The prosecution would further allege that the accused also stabbed PW3 (Sujith) on his left thigh, which is part of the same transaction at the same time and place, thus committing the offences enumerated above. 4. In the instant appeal, Adv.M.Dinesh was appointed as the State Brief. Heard the learned Crl.A 295/2017 -4- counsel appearing for the appellant/accused and the learned Public Prosecutor. Perused the records. 5. The learned counsel for appellant/accused contended that the judgment impugned is illegal and cannot be sustained in law, on the following grounds:- Firstly, the learned counsel contended that the motive alleged in the First Information Statement (FIS) is different from the motive alleged by the prosecution in the Final Report. Going by the FIS, the accused had a quarrel with the friend of the deceased by name Sujith (PW-3) and the accused stabbed him on his leg. Seeing this, the deceased intervened. Infuriated by the same, the accused stabbed the deceased as well on his chest. However, in the Final Report, the motive alleged is that the deceased spoke in opposition of the accused and due to that animosity, the accused stabbed the deceased. The learned counsel for the appellant, therefore, contended that the prosecution has no definite case as regards the motive of the crime. Secondly, the learned counsel submitted that MO2 shirt and MO3 Crl.A 295/2017 5 dhotti/kaili of the accused were not sent for forensic examination, which is a serious flaw in the investigation of the instant case, casting suspicion over the prosecution case. The third point canvassed by the learned counsel for the appellant is that in MO6 shirt worn by the deceased at the time of incident, there is no hole corresponding to the stab injury in the chest. The learned counsel, thereafter, contended that Ext.P8 FIR, registered pursuant to Ext.P1 FIS on 26.4.2014, is seen received in court only on 28.4.2014, which delay is not explained by the prosecution. Another point seriously canvassed by the learned counsel for appellant/accused is concerning the recovery of MO1 knife under Section 27 of the Evidence Act. Learned counsel attacked the recovery as illegal for the reason that the confessional statement of the accused is not recorded, and therefore, recovery under Section 27, which is a potential weapon in the armoury of the investigating officer, often misused, cannot be believed. The learned counsel also pointed out that the incident took place at 8.30 p.m. and Crl.A 295/2017 -6- there was no light in the scene of occurrence, so as to enable the so-called eye witness to see the incident, as also, to identify the accused. In the electric post referred to in Ext.P5 site plan, there is no indication that there is tubelight. Finally, learned counsel submitted that there is no clarity with respect to the actual incident which transpired. It is clear that there was a scuffle between the deceased and the accused, and therefore, conviction under Section 302 of the IPC is neither legal, nor proper. Assuming without admitting that the incident, as narrated by the prosecution, is to be believed, at best, the offence under Section 304 of the IPC is attracted, contends the learned counsel for the appellant. 6. _Per contra_ , all the points raised by the learned counsel for the appellant were refuted by the learned Public Prosecutor. The learned Public Prosecutor submitted that the judgment of conviction impugned is essentially based on the evidence tendered by PW-2 and PW-3, who are eye witnesses to the incident. PW-3 is an injured witness, whose Crl.A 295/2017 7 evidence is accorded with a special status in law. PW-1, the father-in-law of the deceased, and PW-4, the brother-in-law of PW-1, have adduced evidence to the effect that they have seen the accused running away with MO1 knife in his hand. Inasmuch as the prosecution case rests on the direct evidence adduced by the eye witnesses; of which one is an injured witness, the discrepancy alleged with respect to the motive would pale into insignificance, submits the learned Public Prosecutor. That apart, a fact referred to in the FIS is only a first information, which is being recorded for the purpose of setting law in motion, and variance of a fact referred to in the FIS with the Final Report preferred by the Investigating officer, after completion of investigation, is quite natural and not a taboo in itself. According to the learned Public Prosecutor, Ext.P6 seizure mahazar, as per which MO2 shirt and MO3 dhotti/kaili of the accused were recovered, itself contains the answer for not sending the same for forensic examination. Ext.P6 refers to the fact that MO2 and MO3 dress materials were wet, besides Crl.A 295/2017 -8- being smeared with soil and filth. As regards absence of a hole in MO6 shirt corresponding to the stab injury on the chest of the deceased, learned Public Prosecutor submits that the same would happen during the course of the scuffle between the accused and the deceased, wherein one cannot expect that the position of the shirt will remain intact. At any rate, the absence of a hole in MO6 shirt, by itself, is not a circumstance to frown upon the prosecution case. Regarding recovery of MO1 knife under Section 27 of the Evidence Act, learned counsel submitted that the requirements of the Section are amply satisfied. The recovery was effected from the place to which the investigating officer was led by the accused, after recording a confessional statement to that effect. There exists nothing to disbelieve recovery of MO1 knife and allegations to the contrary are denied. The further allegation with respect to absence of light in the scene of occurrence is wholly fallacious, submits the learned Public Prosecutor. When the witnesses spoke about the availability of the light from the electric post, non-mentioning of Crl.A 295/2017 9 the light annexed to the electric post in Ext.P5 is of no moment. The learned Public Prosecutor would conclude that the incident which led to the crime has been established by the prosecution by adducing satisfactory evidence, and the judgment of conviction for offence under Section 302 of the IPC is well-nigh maintainable, since the accused inflicted an injury on the vital part of the body of the deceased, that is to say, the chest, that too after inflicting a prior injury on the buttock. The intention to cause death is axiomatic, submits the learned Public Prosecutor. The learned Public Prosecutor would thus support the judgment impugned and seeks to sustain it. 7. Having heard the learned counsel appearing for the appellant/accused and the learned Public Prosecutor, this Court will now analyse the evidence adduced and points raised in the appeal, to ascertain whether the judgment impugned can be sustained in law. 8. This Court will first refer to the evidence tendered by the star witness of the prosecution, PW3, Crl.A 295/2017 -10- who was present at the place of occurrence and who got injured during the course of the incident, as per the prosecution case. 9. The evidence tendered by PW3, rendered as a whole, would indicate that the accused, was known to PW3 from his childhood onwards and that he is residing near the house of PW3. The deceased is also a person known to PW3. He knows the deceased as husband of one Vineetha (PW5), the daughter of PW1. PW3 deposed that the incident took place in the road, which proceeds to the _Lakshamveedu_ Colony. PW3 was coming along with the accused to charge his mobile phone, when the deceased was engaged in a telephonic conversation, sitting in his bike. The deposition of PW3 regarding the crucial phase of the incident is to the effect that when PW3 and the accused came down to the road leading to the _Lakshamveedu_ Colony, they saw the deceased whereupon, the accused asked, who he was? To this, the deceased retorted “whoever I be, how are you concerned?” Thereafter, both the accused and the deceased started quarreling. PW3 told the accused that deceased is the husband of Vineetha. Crl.A 295/2017 11 Thereupon, the accused stabbed on the buttock of accused, uttering “I don't mind whoever he be?” After being stabbed, the deceased moved a little in his bike. In the meantime, the accused stabbed on the left thigh of PW3. When the deceased fell down, the accused caught hold of him and stabbed on his chest and kept the knife as such. When the deceased fell down, the accused took off the knife and he went through the road to the _Lakshamveedu_ Colony. After two minutes, PW2, Sudheesh, came down to the spot of occurrence. 10. As regards MO1 knife, PW3 stated that it was a black knife with a steel handle. PW3 identified MO1 knife in the Court. According to PW3, he saw the incident in the streetlight, although it was elicited in cross examination by referring to his former statement that PW3 applied the light of his mobile to the face of the deceased to identify him. There, again, he would maintain that there was streetlight as well. PW3 identified MO2 shirt and MO3 dhotti/kaili worn by the accused at the time of the incident. It was further deposed that he gave Ext.P2 ## Crl.A 295/2017 -12- statement to the Judicial First Class Magistrate. According to PW3, the accused stabbed the deceased all of a sudden, when a wordy altercation was going on between the accused and the deceased. 11. In cross examination, it is elicited from PW3 that PW2 saw the accused running away when he came down to the spot of the incident from his house. It was suggested that the same is not forming part of his former statement to the investigating officer. It was further suggested that the evidence regarding the availability of streetlight was not referred to in the statement under Section 164 of the Code of Criminal Procedure. As regards non mentioning of the dresses worn by the accused in the former statement, PW3 would state that the same was not asked by the investigating officer and hence, not stated. Ext.D1 contradiction is seen marked pertaining to the timing at which PW2, Sudheesh, came to spot. In chief examination, PW3 would state that the accused trekked home and PW2 came down after two minutes. In his statement under Section 164 of the Code of Criminal Procedure, PW3 stated that PW2 came when the accused Crl.A 295/2017 13 trekked home. Ext.D1 contradiction is, accordingly, marked. PW3 would resile from his former statement to the effect that PW1, the father-in-law of the deceased, had beaten him. In the Court, PW3 would state that PW1 had only pushed him. It is seen elicited in cross examination that MO1 knife was brought by the sister of the accused, who was at Gulf and that two such knifes were brought by her. PW3 would hasten to add that he had seen MO1 knife in the hands of Vinod on earlier occasions as well. The suggestion that the deceased died in the quarrel between PW3 and the deceased, is seen denied by PW3. 12. The second important witness of the prosecution is PW2, who had worked with the deceased on the fateful day. He has deposed that he had acquaintance with the deceased and that on the date of incident (26.4.2014), the deceased, along with PW2 had attended to a wiring job at Marthandam. They left for their respective houses, after the job. After 6 p.m., PW2 called the deceased over phone, whereupon, the deceased reached Ezhamkulam and called PW2 over phone. PW2 also went to Ezhamkulam. PW2 Crl.A 295/2017 -14- would state that the deceased came in a motorcycle. Thereafter, PW2 and the deceased went to Kulathupuzha for purchasing vegetables and petrol and then they came to the road, which leads to the _Lakshamveedu_ Colony. PW2 went to his house, whereupon the deceased was waiting in the road in his motorcycle. After keeping the vegetables in his home, PW2 came back carrying petrol, whereupon he saw the accused running away, with a knife in his hand, towards the road leading to the _Lakshamveedu_ Colony. When PW2 reached the road, PW3 told him that the accused stabbed him and the deceased. PW2 would state that he gave information to PW1, Vijayan (father-in-law of the deceased), as also, to the wife of the deceased. PW2 identified MO1 knife as the one he saw in the hands of the accused when he ran away. He would also state that he saw the incident in the streetlight. PW2 would also state that the accused is known to him from his childhood onwards and that the house of the accused is situated just above the house of PW2. 13. In cross examination, it was elicited that his information that it was the accused, who stabbed Crl.A 295/2017 15 the deceased, is only as spoken to him by PW3. However, PW2 would reiterate in cross examination that he had seen the accused running away, and that what he had seen is the back side of the accused. It is brought out that there was no streetlight in the road, which leads to the _Lakshamveedu_ Colony. According to PW2, he gave statement to the Police to the effect that the accused was holding MO1 knife in his left hand, when he ran away. PW3 would state in cross examination that he called PW1 and the wife of the deceased from the phone of somebody, who assembled at the place of occurrence. It is elicited from PW3 that he could not see the details of the dress worn by the accused at the relevant time, since it was dark. According to PW2, PW1 slapped PW2 and PW3. In re-examination, PW2 would state that he saw the face of the accused in the reflection of the light, which he was referring, in all possibility, to the streetlight. 14. Other witnesses are not eye-witnesses. However, for the sake of completion, we will briefly Crl.A 295/2017 -16- refer to the evidence tendered by the other witnesses as well. 15. PW1 is the father-in-law of the deceased, who gave Ext.P1 FIS. He would depose in chief examination that the deceased started residing in the house of PW1, 2-3 weeks before the incident. The deceased died on 26.4.2014 between 8.30 p.m. and 9 p.m. PW1 would state that he had seen some aspects of the incident. He was returning home after his job, when he heard sounds of a melee and he proceeded to that place, whereupon he got a call from PW2 informing him that his son-in-law is lying there pursuant to a stab injury. When he reached the place, he saw his son-in-law lying there and PW3 sitting nearby. He saw the accused running towards the _Lakshamveedu_ colony at the top, with a knife in his hand. PW1 knows the accused for the past 10-24 years. Thereupon, PW1 and his brother-in-law, Ramesh (PW4), attended to the deceased, when they saw a deep injury on his left chest, from where blood was oozing out. The deceased told PW1 that the accused stabbed him. The deceased was taken in a jeep to the Anchal Crl.A 295/2017 17 Mission Hospital. There was no response from the deceased even when PW1 called him. The Doctor in the Hospital informed PW1 that the deceased is no more. PW1 would depose that he gave statement to the Police and that he can identify MO1 knife. When MO1 knife was shown to him, he would state that the accused was holding a similar knife. PW1 identified the shirt and dhoti/kaili worn by the accused, as MO2 and MO3, respectively. PW1 identified Ext.P1 FIS, besides identifying the accused, who was known to him for the past 24 years. PW1 saw the accused running away in the streetlight. He was cross examined at length, whereupon, he would state that he saw the accused running away with a knife in his hand. PW1 would state that the accused ran away upon seeing PW1 and PW4. It was elicited from PW1 that he had given information to the Police to the effect that he received the phone call, while proceeding to the place after hearing the sounds of a melee. PW1 would state in cross examination that he was not asked about his long acquaintance with the accused and, hence, not stated so before the Police. The knife in Crl.A 295/2017 -18- the hands of the accused was a long one, made of steel, which information was also given by him to Police. He does not remember whether Police had recorded it or not. Similarly, he also spoke about the dress worn by the accused, to Police. It is extracted in cross examination that in the electric post, a tube light was there. He denied the suggestion that there is no light in the road which leads to _Lakshamveedu_ colony. It is elicited that the information that his son-in-law attempted to disengage the accused and PW3, who were quarrelling, is only a hearsay one. To a suggestive question, PW1 answered that the deceased did not tell him, which Vinod stabbed the deceased. But PW1 deposed that he saw the accused running away with a knife. PW1 denied the suggestion that the deceased died in the quarrel between himself and PW3. 16. The next witness is PW4, who is the brother-in-law of PW1. He deposed in tune with what has been spoken to by PW1 to the effect that they heard the sounds of a commotion, besides getting information over phone to PW1, and that when they Crl.A 295/2017 19 reached the spot, they saw the deceased lying there. He saw the deceased whispering something to PW1. He also spoke about PW3 sitting with a stab injury on his leg. Both the deceased and PW3 were stabbed by the accused. When PW4 went to hire a vehicle, he saw the accused running away with a knife. PW1 told PW4 that it is Vinod. They took the deceased to the Hospital in a jeep. The Doctor informed them that the deceased is no more. PW4 would state that the incident took place at 8.30 p.m. - 9 p.m. and that there was streetlight in the locality. PW4 would state that he knows the accused from childhood onwards. He identified MO2 shirt and MO3 dhotti/kaili worn by the accused at the time of the incident. However, he could not state the details of MO1 knife, precisely. PW4 would state that the accused stabbed the deceased pursuant to a verbal altercation between them. In cross examination, PW4 denied that he gave statement to the effect that he came to know about the incident after reaching home, as spoken to by Vineetha (PW5), daughter of PW1. This contradiction is seen marked as Ext.D2. PW4 had Crl.A 295/2017 -20- not given any statement to the Police on 29.4.2014. It is also brought out in cross examination that in his former statement, PW4 had not referred to his statement that he saw the accused running away. It is also extracted that PW4 saw only the back portion of the accused, Vinod, and that he came to know that it is Vinod upon being said so by the others. 17. PW5 is the wife of the deceased. She would depose that on 26.4.2014 at about 6-7 p.m., her husband went out in a bike to purchase petrol, as also, to collect his wages, upon receiving a phone call from PW2. PW5 called the deceased at about 9 p.m., since he had not returned by that time. However, the call was not attended by her husband. Thereafter, PW2 contacted PW5 over phone and informed that the accused stabbed the deceased, pursuant to a verbal altercation between them. 18. The next witness is PW6, whose evidence is also hearsay, as regards the death of the deceased. However, he would depose that he saw the accused on 27.4.2014 at 6 a.m. near the well on the Western side of his house. The local people confined him, before Crl.A 295/2017 21 which, the accused pushed PW6 and beat him. When PW6 saw the accused, he was wearing a red shirt and a kaily which were identified by the witness as MO2 and MO3, respectively. PW6 would state that he knows the accused and that he is his neighbor. In cross examination, he would state that there is only one person by the name of the accused in _Lakshamveedu_ colony and that he is the son of _Podiyan_ . PW6 does not know the address of the accused. 19. PW7, Sukumari, would depose that on 26.4.2014, PW7 was returning along with her daughter after attending a function, and when they were about to enter into their house at _Lakshamveedu_ colony, they saw the accused and PW3 coming out, and after ten minutes, she heard that the accused stabbed the deceased. PW6 would state that she knows the accused and that he is residing nearby. In cross examination, she would state that she saw the accused himself and that he asked her, as to whether she is coming back only then. 20. PW8 is the one who prepared Ext.P3 inquest report at St.Joseph Hospital, Anchal, on 27.4.2014, ## Crl.A 295/2017 -22- which aspect was spoken to by him in chief examination. PW9 is a witness to Ext.P3 inquest report. He identified Ext.P3, as also, his signature in Ext.P3. PW10 and PW11 are also witnesses to Ext.P3 inquest report. Both of them spoke about the preparation of the inquest report, and identified the inquest report and their signatures therein. 21. PW12 is a witness to Ext.P4 scene mahazar. He deposed that he saw the Police preparing Ext.P4 mahazar, besides identifying the same, as also, his signature therein. He also identified the accused standing in the dock before Court. In cross examination, it is seen elicited that he has not seen the preparation of the mahazar. PW13 is the father of the accused and his information is also hearsay about the death of his son. PW14 is the Scientific Assistant attached to the Forensic Science Laboratory, Thiruvananthapuram. She would state that she examined the scene of the crime on 27.4.2014 and collected seven material objects, vide Ext.P15. The MOs entrusted to the investigating officer, duly packed and sealed, were identified by the witness in Crl.A 295/2017 23 the Court as MO4 series commencing from MO4 to MO4(f). 22. PW15 was the Village Officer-in-charge of Thinkalkarikkam Village at the relevant time. He deposed that he prepared Ext.P5 sketch after inspecting the scene of the crime. He identified Ext.P5 sketch. In cross examination, it is stated that in the electric post shown in Ext.P5 sketch, no tube light or bulb is shown. He would assert that in the electric post No.164, which is 5.40 metres towards the north-eastern side, there was a tube light. 23. PW16 is an attester to Ext.P6 mahazar evidencing recovery of MO2 shirt and MO3 dhotti/kaily worn by the accused. PW16 identified the MOs and the accused in Court. 24. PW17 would depose that he saw the accused taking MO1 knife from the roots of a Hibiscus plant, which is near the well of a dilapidated building. He also deposed that he saw Ext.P7 mahazar being prepared, evidencing the recovery of MO1 knife. He identified Ext.P7 and his signature therein, besides ## Crl.A 295/2017 -24- identifying MO1 knife. He would also state that the said dilapidated building is on the top of a hill, which is more or less isolated. 25. PW18 is the Assistant Sub Inspector of Police, who registered the instant crime based on Ext.P1 FIS. Ext.P8 FIR was marked through him. In cross examination, he spoke about the reason for the delay in Ext.P8 FIR reaching the court. Although the FIR was registered on 26.4.2014, the same reached the court only on 28.4.2014, which according to the witness could be due to the delay in entering the details in the computer and taking a print out. PW19 is the Judicial First Class Magistrate-III, Punalur, who recorded the statement under Section 164 of the Cr.PC of PW3. It was so recorded on 3.7.2014 and the original was handed over to the Judicial First Class Magistrate-I, Punalur. It is elicited in cross examination that the witness spoke to the Magistrate that he saw the deceased in the light of his mobile phone and that the witness had not spoken about availability of any other light. Crl.A 295/2017 25 26. PW20 is the Casualty Medical Officer of St.Joseph Hospital, Anchal, who examined PW3. He spoke about the injury sustained by PW3. PW21 was the Assistant Professor, Forensic Medicine and Police Surgeon, who conducted postmortem examination of the body of the deceased on 27.4.2014. After referring to the five injuries sustained by the deceased, PW21 would depose that the death was caused due to the penetrating injury sustained to the chest, which is described as injury No.1, which according to the witness is a fatal injury. She would also depose that such injury can be caused by MO1 weapon, which reply was given after measuring MO1. In cross examination, it is elicited that injury No.1 can be caused by any weapon exceeding the width of 2.5 c.m.. 27. PW22 is the investigating officer, who spoke about the various steps of the investigation and through whom, Ext.P11 arrest memo, Ext.P12 custody memo and Ext.P13 inspection memo of the accused were marked. He spoke about the confession statement leading to recovery of MO1 knife under Section 27 of the Evidence Act. Ext.P7 seizure mahazar regarding Crl.A 295/2017 -26- the recovery of MO1 knife was identified by PW22, wherein the confessional part of the statement is seen marked as Ext.P7(a). He spoke about Ext.P14 property list, MO5 chain, MO6 shirt of the deceased, MO7 bangle, MO8 watch, MO4 series of material objects collected by the Scientific Assistant of the F.S.L., Ext.P7 property list, Ext.P6 mahazar, Ext.P10 postmortem certificate and Ext.P18 FSL report. PW22 would state that after investigation, he filed the final report. In cross examination, PW22 would state that MO6 shirt was worn by the deceased until the inquest was conducted at Anchal Mission Hospital. PW22 would explain that there is a hole in MO6 shirt, which is below the left chest area. The deviation in the position of the hole, which should have corresponded to the situs of the injury, can be caused in the scuffle between the accused and the deceased. PW22 would state that Ext.D2 was spoken to by the corresponding witness. It is seen elicited from PW22 that he went to the scene for the purpose of recovery under Section 27 based on Ext.P7 confessional statement. PW22 would admit that the Crl.A 295/2017 27 confessional statement was not recorded at the Police Station. It was suggested to him that the confessional statement cannot be seen from the record, which he denied. According to PW22, the confessional statement is recorded as such in the recovery mahazar. 28. With this, we complete the scan of the evidence adduced by the prosecution. 29. This Court will first address the crucial question whether the prosecution could satisfactorily establish the guilt as against the accused. As indicated earlier, PW3 is the star witness of the prosecution, who is an eye witness, besides being an injured witness. Before addressing the factual aspect, this court would refer to the special status accorded in law to the evidence tendered by an injured witness. 30. The significance and trustworthiness of an injured witness has been dealt with by the Hon’ble Supreme Court in _**Abdul Sayeed v. State of Madhyapradesh [(2010) 10 SCC 259]**_ . Referring to several earlier decisions on the point, the Hon’ble Crl.A 295/2017 -28- Supreme Court dealt with the question as to the weight to be attached to the evidence of an injured witness thus : ## “ **Injured Witness** 28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of Uttar Pradesh, Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharastra, Bhag Singh, Mohar v. State of Uttar Pradesh, SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of Andhra Pradesh and Balraje v. State of Maharashtra]. 29. While deciding this issue, a similar view was taken in, Jarnail Singh v. State of Punjab, where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under: (SCC pp. 726-27, paras 28-29) “28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the Crl.A 295/2017 29 assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. 29. In State of U.P. v. Kishan Chand, a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Hariyana). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below." 30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein”. Crl.A 295/2017 -30- 31. The dictum laid down in _**Abdul Sayeed**_ ( _supra_ ) has been quoted with approval by the Hon’ble Supreme Court in _**Baleshwar Mahto and Another v. State of**_ _**Bihar and Another [AIR 2017 SC 873]**_ , in paragraph no.11 of the judgment. 32. In _**Brahm Swaroop and Another v. State of**_ _**Uttar Pradesh [(2011) 6 SCC 288]**_ , the Hon’ble Supreme Court held thus, as regards the testimony of an injured witness in paragraph no.28 : “Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in -built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.” 33. The question fell for consideration before the Hon’ble Supreme Court again in _**Chandrasekhar and**_ _**Another v. State [AIR 2017 SC 2600]**_ . The relevant findings, as contained in paragraph no.10 of the judgment are extracted here below : “Criminal jurisprudence attaches great weightage to the evidence of a person Crl.A 295/2017 31 injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P., 2011 (6) SCC 288 observing as follows: "28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone”. 34. Recently, in _**Shamim v. State (GNCT of Delhi)**_ **==> picture [416 x 12] intentionally omitted <==** depicted the legal position thus in paragraph no.11 of the judgment : “PW2 is an injured witness whose throat was slit in the occurrence causing loss of voice requiring hospitalization for two months. The evidence of an injured witness carries great weight as it is presumed that having been a victim of the same occurrence the witness was speaking the truth.” 35. Having taken note of the legal position, this Court will now refer to the factual premise. The substratum of the evidence tendered by PW3, the ## Crl.A 295/2017 -32- injured witness, had already been narrated in paragraph 9 above and hence not repeated. PW3 categorically deposed that he was accompanying the accused and that there was a spat between the accused and the deceased, whereafter the accused first stabbed on the buttock of the deceased and then on his chest. Nothing tangible which would erode the veracity of the above evidence of PW3 is seen extracted in his cross examination. An alleged incongruence in respect of the words spoken to by the accused before stabbing the deceased is brought out in cross examination. A contradiction as regards the source of light is seen brought out in cross examination of PW3. While PW3 would maintain before the Court that he saw the accused and the incident in the streetlight, he would state in his statement under Section 164 of the Cr.P.C that he saw the accused in the light of his mobile phone. An omission, which is seen brought out, is with respect to the dress materials worn by the accused at the time of the incident, which is spoken to by PW3 before the court, but not referred to in his Crl.A 295/2017 33 statement under Section 164 Cr.P.C. Ext.D1 is a contradiction marked which pertains to the presence of PW2 at the scene of occurrence. Yet another inconsistency, which is extracted in cross examination, is that PW1, Vijayan, had slapped PW3 and PW2 when he came to the spot, upon knowing about the incident. Before the court, PW1 would maintain that he had only pushed PW3 and not slapped. 36. The above aspects are referred only to point out that the so called contradictions/omissions are not touching the substratum or the core of the prosecution case, but pertaining to the peripheral and incidental aspects of the crime. As it is well settled, it is not any and every discrepancy between the versions of a witness that qualifies as a contradiction. The variance in the version in respect of a material aspect of a crime, touching the core of the prosecution case, alone tantamounts to a contradiction, or for that matter, an omission. {See in this regard the judgments of the Honourable Supreme Court in _**Rammi alias Rameshwar v. State of M.P. [1999 CRL.L.J.4561]**_ and _**A.Shankar v. State of**_ Crl.A 295/2017 -34- _**Karnataka [(2011) 2 SCC 279]**_ }. Therefore, this Court is of the opinion that the evidence tendered by PW3 is not shaken at all in respect of its material aspects. This, coupled with the fact that PW3 is an injured witness, whose evidence has an in-built guarantee and which is accorded with a special status in law, persuade us to place intrinsic reliance upon the same. We find no convincing evidence or strong grounds to discredit the evidence tendered by PW3/injured witness. PW3 is credible also for the reason that he had acquaintance with the accused from his childhood onwards and he was accompanying the accused to the spot. Still he spoke against the accused. 37. The next important evidence is the one tendered by PW2. He would state in chief examination that when he came back from his house, he saw the accused running away with MO1 knife through the road leading to his house. When PW2 reached the spot, PW3 told him that the accused stabbed himself and the deceased. However, in cross examination PW2 would concede that he saw only the back side of the accused Crl.A 295/2017 35 while he was running away. PW2 would, however, state in the re-examination that he saw the face of the accused in the light radiated from the roadside. In cross examination, PW2 deposed that there is no streetlight in the road leading to the _Lakshamveed_ colony. Further down in cross examination, PW2 would state that he could not refer to the dress of the accused in his former statement, since it was dark. 38. While appreciating the evidence adduced by PW2, it is important to note that his evidence, to the effect that the deceased was waiting in the roadside in his motorcycle, when PW2 went to his house to keep the vegetables and when he came back with petrol, he saw the deceased lying in the ground, after being stabbed, is wholly convincing. The fact that PW2 came back to give petrol to the deceased is corroborated by the version of PW5 (the wife of the deceased) that the deceased went out in the evening on the fateful day to purchase petrol. PW2 deposed that PW3 told him that the accused stabbed the deceased. This corroborates the version of PW3, the eye-witness. What is crucial to be looked into is Crl.A 295/2017 -36- the veracity of the evidence adduced by PW2, in the light of the facts elicited in cross-examination to the effect that he saw only the back of the accused, who was running away from the scene of occurrence and that there is no street light in the road leading to _Lakshamveedu_ Colony. Here, it is quite relevant to note that PW2 had acquaintance with the accused from his childhood onwards, as a neighbouring resident. Considering the close association between the two, the identification of the accused cannot be doubted. PW2 also asserted in cross examination that he saw the steel knife in the hands of the fleeing accused. The contention of the learned defence counsel, based on the deposition of PW2 in cross examination, that sufficient light was not there at the scene of occurrence, cannot be countenanced. What was spoken to by the PW2 in the cross examination is that there was no street light in the road leading to _Lakshamveedu c_ olony, whereas the scene of occurrence is near to the place where the _Lakshamveedu_ road meets the Anchal - Kulathupuzha road at the South, which is decipherable from Ext.P5 scene plan. A Crl.A 295/2017 ## 37 perusal of Ext.P5 would also demonstrate that an electric post (marked as Sl.No.2 to Ext.P5) is quite close to the scene of occurrence, besides another electric post (marked as Sl.No.3), which is slightly farther than the first electric post. Therefore, the deposition of PW2 to the effect that there is no street light in the road leading to _Lakshamveedu_ Colony, will not lead to any inference that there was no sufficient light at the scene of occurrence. 39. When we analyse the evidence tendered by PW1 and PW4, the essence of which have already been referred to in paragraphs 15 and 16 above, it is noteworthy that both are not eye witnesses to the incident, but reached the scene of occurrence shortly after the incident. Both would depose that they saw the accused running upwards towards the _Lakshamveedu_ Colony with a knife, which was subsequently identified in court. The crucial evidence tendered by PW1 is regarding the dying declaration made by the deceased to PW1, while the former was being carried to the hospital. This version is, to some extent, supported by PW4, who deposed that he saw the Crl.A 295/2017 -38- deceased whispering something to PW1. This Court is of the opinion that the dying declaration of the deceased under Section 32 of the Evidence Act, constitutes a corroborative piece of evidence, in support of the evidence tendered by PW3 and PW2. To impeach the veracity of the dying declaration deposed by PW1, he was not subjected to any serious cross examination. It was not even suggested that the deceased, having regard to the nature of the injury sustained by him which proved fatal, was not in a position to make such a declaration to PW1. In fact the suggestion was that the deceased did not identify the particular 'Vinod' who stabbed the deceased. PW6 categorically stated that there was only one Vinod in the locality, who was the accused. The accused has no case that the version of PW1 amounting to dying declaration was not spoken to in his First Information Statement. A perusal of the FIS would amplify that PW1 had given the same statement before the police, _ipsissima verba_ . As regards the probative value of a dying declaration under Section 32, it is settled that an accused can be convicted by Crl.A 295/2017 39 placing sole reliance upon the dying declaration, provided, the same inspires complete confidence in the mind of the Court. In other cases, the courts should always look for corroboration. (See in this regard the judgment of the Honourable Supreme Court of India in _**Paniben v. State of Gujarat (AIR 1992 SC 1817)**_ ]. In the instant case, this Court choose to rely upon the dying declaration, only as a corroborative piece of evidence in support of the substantive evidence adduced by the injured eye witness, PW3 and PW2. Accordingly, we find, on the strength of the evidence tendered by PW3 and PW2, coupled with the dying declaration discussed above, that the accused had inflicted fatal injury on the deceased, leading to his death. The defence suggestion of the deceased having not spoken of the particular Vinod is irrelevant, since PW1 would immediately clarify that he saw the accused running away. This version is supported by PW4 as well. It has been established that both PW1 and PW4 are residents of the same locality having long acquaintance with the accused. There is no doubt Crl.A 295/2017 -40- regarding the identification of the accused as having caused the death spoken of by the deceased. More over, the deposition of PW6 in cross examination that there is only one person by the name of the accused in the _Lakshamveedu Colony_ and he is the son of _Podiyan,_ would establish the identity of the accused beyond the pale of any reasonable doubt. 40. Now, we will address the arguments raised by the learned counsel for the appellant/accused. 41. As regards the first contention raised by the learned counsel for the appellant/accused on the point that the motive alleged in the FIS is at variance with the motive alleged in the Final Report, this Court is of the view that the said discrepancy cannot impact the credibility of the prosecution version in any manner. As it is well settled, an FIS is not an encyclopedia of events, which leads to the crime. Instead, as the name indicates, it is only the first information about the commission of a crime. That apart, unlike in a case which is built up on circumstantial evidence, the relevance of motive would pale into insignificance in a case where the Crl.A 295/2017 41 prosecution relies on eye witnesses. Therefore, no inference, adverse to the prosecution case, can be drawn from the discrepancy with respect to the motive for the crime. 42. The second contention of the learned counsel for the appellant/accused is to the effect that MO2 shirt and MO3 dhoti/kaili alleged to have been worn by the accused at the relevant time, were not sent for forensic examination. The answer to the said allegation is contained in Ext.P6 seizure mahazar, wherein it is stated that the dress materials (MO2 and MO3) worn by the accused were smeared with soil and filth, besides being wet. That apart, the accused cannot be heard to say that he is prejudiced, in any manner, for the reason that MO2 shirt and MO3 dhotti/kaili were not sent for forensic examination, for, any result in the forensic examination could not have pointed to the innocence of the accused. Instead, an evidence in this regard, if forthcoming, would only corroborate the other evidence supporting the prosecution case. It is not imperative that the dress worn by the accused should contain blood and Crl.A 295/2017 -42- even if the absence is noticed, that does not absolve the accused, especially when there is ocular evidence. 43. The third contention is with respect to the delay of two days between the date of registration of the FIR and the date on which the same is seen received in the jurisdictional Magistrate's court. The FIR is registered on 26.4.2014 and the same is received in the court only on 28.4.2014. The learned Public Prosecutor pointed out that the intervening day, namely 27.4.2014, was a Sunday. Although such explanation is not completely satisfactory, the delay of one day cannot be taken as fatal to the prosecution case in the above fact situation. 44. The next circumstance based on the recovery of MO1 knife under Section 27 of the Evidence Act is seriously assailed by the learned counsel for the appellant/accused by pointing out that the alleged confessional statement of the accused is not recorded in the Police Station, which according to the learned counsel, would adversely impact the very credibility of the recovery. In support of the above argument, Crl.A 295/2017 43 the learned counsel invited the attention of this Court to cross examination of PW22, the investigating officer. In page No.8 of the readable copy of his deposition, the witness would categorically admit that the confessional statement was not recorded at the Police Station. 45. In Ext.P7 seizure mahazar, a confessional statement of the accused is seen recorded as Ext.P7(a). A separate statement is not seen recorded at the Police Station. Learned Public Prosecutor submitted that the confessional statement is recorded in Ext.P7 and that the same has been spoken to by PW22 in the examination in chief. Inasmuch as MO1 knife used for the perpetration of the crime has been recovered, pursuant to such information given by the accused, so much of the information which pertains to the recovery should be treated as proved, contends the learned Prosecutor. 46. Having heard the learned counsel appearing on both sides, it appears that it is not the mandate of law to record the confessional statement at the police station. In the instant case, Ext.P7 seizure Crl.A 295/2017 -44- mahazar contains the confessional statement given by the accused, which is seen marked as Ext.P7(a). MO1 knife is recovered pursuant to such disclosure made by the accused, the factum of recovery being spoken to by PW17. In the circumstances, this Court is not persuaded to accept the contention of the learned counsel for the appellant, assailing the recovery under Section 27 of the Evidence Act. Moreover, PW3, the occurrence witness, who had close acquaintance with the accused from his childhood onwards, deposed in his cross examination that MO1 knife is one among the two knifes brought by the sister of the accused from Gulf and that PW3 had seen the knife in the hands of the accused on earlier occasions as well. This version of PW3 would lend considerable support to the fact that MO1 knife has been used for the perpetration of the crime. This aspect is further fortified by the evidence tendered by PW21, who measured MO1 knife, and opined that the injury sustained by the deceased can be caused by MO1 weapon. The point is concluded accordingly. Crl.A 295/2017 45 47. Yet another contention raised by the learned counsel for the appellant/accused, is that the prosecution failed to establish that there was sufficient light in the scene of occurrence, so as to enable the so called eye witnesses to see the incident and to identify the accused person. In support of this argument, the learned counsel invited the attention of this Court to Ext.P5 scene plan, wherein the availability of a bulb/tube (fluorescent lamp) is not indicated in the electric post shown. This Court is not in a position to endorse the said submission of the learned counsel for the appellant/accused. There is no requirement to note the presence of a tube light when an electric post is marked, whereas the absence would have specifically found a mention. Besides, a scan of the evidence tendered by PW2 and PW3 would indicate that they saw the incident in the streetlight. PW3 is an injured witness, who was present at the spot along with the accused and the deceased. Therefore, the significance of the light, if any, is only in the context of identification of the accused, in so far Crl.A 295/2017 -46- as PW3 is concerned. It has come out in the evidence of PW3, as also PW1 and PW2, that they have close acquaintance with the accused; PW2 and PW3 ever since their childhood. Besides the above, the evidence of PW3 would also indicate that he was coming along with the accused towards the road, whereupon the deceased was making a phone call sitting in his bike. In such circumstances, the question of non-identification of the accused by PW3 cannot arise. Therefore, this Court discounts the contention that there was no light available in the scene of occurrence, more so when, the electric posts are shown in Ext.P5 scene plan. We take into account the evidence tendered by PW15, the Village Officer, who prepared Ext.P5 scene plan, to the effect that in one among the electric posts bearing No.164, there was tube light. The omission to notice the presence of the tube light is not relevant, since only the absence is a relevant fact to be noticed. 48. Another point canvassed by the learned counsel for appellant/accused is in the context of Section 273 of the Code of Criminal Procedure, on the Crl.A 295/2017 47 premise that the accused was not present at the time of trial. It could be seen from the depositions of PW3 and PW1 to the effect that the accused was not present on the date on which they were examined (see page No.3 of cross examination of PW3). However, the proceedings sheet pertaining to the date on which PW3 was examined, that is 14.12.2015, would explain such absence, wherein it is stated that the accused is not produced for want of security. It is important to note that PW3 was cross examined at length, which would establish that the learned counsel appearing for the accused was very much present on that day. Section 273 of the Cr.P.C specifically approves evidence being taken in the presence of the Pleader, if the personal attendance of the accused is dispensed with. It is implicit from the order sheet pertaining to the date 14.12.2015 that the personal attendance of the accused was dispensed with, since he could not be produced for want of security. That apart, if there was any objection to the evidence being taken in his absence, the counsel for the accused could have objected to the same. No such Crl.A 295/2017 -48- plea is seen to have been made before the Sessions Court. Finally, the appellant/accused could not establish any prejudice on account of the absence of the accused. As already indicated, the question of identification of the accused by PW3 would pale into insignificance, since PW3 had acquaintance with the accused ever since his childhood, and, in fact, they came together to the road where the incident took place on the fateful day. Therefore, the said contention is also repelled. 49. The final contention of the learned counsel for appellant/accused is that there is no clarity in respect of the actual incident, which took place, and that there was a scuffle between the accused and the deceased and, therefore, the offence under Section 302 of the IPC cannot be sustained. At best, the offence under Section 299 of the IPC, punishable under Section 304 of the IPC, is attracted, contends the learned counsel. Here again, this Court is at a loss to endorse the submissions made by the learned counsel for the appellant/accused. The evidence tendered by PW3, the injured eye witness, would Crl.A 295/2017 49 negate any such consideration as canvassed by the learned counsel for the appellant/accused. The intention of the accused to commit the murder of the deceased is writ large, going by the evidence tendered by PW3. He would state in chief examination that the accused stabbed the deceased on his buttock first. Thereupon the deceased moved forward. After inflicting injury on PW3, the accused caught hold of the deceased and stabbed on his chest. The further deposition made by PW3 is crucial in this regard. PW3 deposed that MO1 knife was kept as such on the chest of the deceased. Then the deceased fell down, whereafter the accused took out the knife from the chest. Thus, the intention of the accused to commit murder is so manifest, which dissuades us from considering the offence in question as one punishable under Section 304 rather than under Section 302. 50. Before parting the judgment, let us also address the legality of the conviction of accused for the offence under Section 324 as well, albeit no specific argument is addressed before us on that count. As per the prosecution case, the accused Crl.A 295/2017 -50- stabbed PW3 on his thigh during the course of the altercation between the accused and the deceased, which took place as part of the same transaction. As in the case of offence under Section 302, the primary evidence in this regard is forthcoming through PW3, the injured witness, whom we have found to be trustworthy and safe to be relied upon. He, specifically, deposed that the accused stabbed him on his left thigh, before inflicting the fatal stab injury on the deceased. We could not find anything in cross examination of PW3 to doubt the said version. Besides, the evidence tendered by PWs 1, 2 and 4 to the effect that they saw the accused running away with a knife and also the injured sitting at the scene of occurrence, with a stab injury on his leg, would corroborate the version of the injured witness. As found by the learned Sessions Judge, Ext.P9 wound certificate of PW3 was proved by examining PW20 Doctor, thus establishing the injury sustained by PW3, beyond any reasonable doubt. We, therefore, endorse the finding of the learned Sessions Judge as Crl.A 295/2017 51 regards the guilt of the accused for the offence under Section 324 as well. 51. In the light of the above discussion, this Court finds no infirmity or illegality in the judgment of conviction impugned before us. Once, the appellant's plea that the offence attracted is one under Section 299 of the IPC is rejected, there exists no scope to interfere with the order of sentence passed by the learned Sessions Judge. In the result, this Criminal Appeal fails and the same is dismissed. **Sd/JUDGE** **K.VINOD CHANDRAN** **Sd/-** **C.JAYACHANDRAN JUDGE** jg/NR