rule whereunder the hearsay evidence becomes admissible. But for
bringing such hearsay evidence within the provisions of S.6, what is
required to be established is that it must be almost
contemporaneous with the acts and there should not be an interval
which would allow fabrication. The statements sought to be
admitted, therefore, as forming part of res gestate, must have been
made contemporaneously with the acts or immediately thereafter
[(see Sukhar v. State of U.P. (1999 (9) SCC 507)].
Where the transaction consists of different acts, in
order that the chain of such acts may constitute the same
transaction, they must be connected together by proximity of time,
proximity or unity of place, continuity of action and community of
purpose or design. The spontaneity of the statement is the
guarantee of the truth. The reasons for its admissibility under
Section 6 of the Evidence Act is that it is a part of the transaction
and not merely because it is spontaneous. The statement is
relevant only if it is that of a person, who had seen the actual
occurrence and who uttered it simultaneously with the incident or
soon thereafter as to make it reasonably certain that the speaker is
still under the stress of the excitement caused by his having seen
the incident. In order to make the statement of a bystander
admissible, it must have been made, at the time of transaction or
shortly before or after it. The statement uttered or the act done must
be a spontaneous reaction of the person witnessing the crime and
forming part of the transaction. The bystanders' declaration must
relate only to that which came under their observation.[See
Bhaskaran v. State of Kerala (1985 KLT 122)]. In the present
case, the declaration was made by the victim himself, immediately
after the incident of sustaining injury by him. In the said
circumstances, the evidence of PW5 and PW6 about what the
victim/deceased said immediately after the incident, is admissible
under Section 6 of the Evidence Act. The above discussion would
make it clear that apart from Sec.32 (1) of the Evidence Act, the
aforesaid statement of the deceased can be admitted under Sec.6
of the Evidence Act on account of its proximity of time to the act of
murder. In either case, whether it is admissible under S.32 (1) or
under S.6 of the Evidence Act, it is substantive evidence, which can
be acted upon with or without corroboration in finding guilt of the
accused [(see Rattan Singh's case (supra)].
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
FRIDAY, THE 5TH DAY OF JUNE 2015
CRL.A.No. 1157 of 2010 (G)
AHRAF, S/O.MOIDU,
THARAYIL VEEDU, VELLARKAD,
ERUMAPETTY, PUNNAYOOR,
THRISSUR DISTRICT.
Vs
THE STATEOF KERALA,
Citation: 2015(3)KLJ201
The appellants are the accused in S.C.No.86 of 2009 on the
files of the Sessions Court, Manjeri, who in this appeal challenges
the judgment of conviction and sentence passed by the court below
under Sections 302, 323 and 341 read with Section 34 of the Indian
Penal Code. The court below sentenced each of the appellants to
imprisonment for life and a fine of Rs.10,000/- each with a default
clause for rigorous imprisonment for one year each under Section
302 read with Section 34 IPC, rigorous imprisonment for three
months each under Section 323 read with Section 34 IPC and a fine
of Rs.500/- each with a default clause for simple imprisonment for
one week each under Section 341 read with Section 34 IPC.
2. There was dispute between the appellants and the
deceased Ibrahim with regard to the payment of rent in respect of
the building where the appellants were residing. The said building
and other tenanted buildings of the deceased are called quarters.
On 17.9.2002 at about 6.30 p.m., the deceased Ibrahim went to the
quarters of the appellants to collect the rent. On the way, the
deceased met the appellants. The deceased demanded rent from
the appellants. There was an altercation. Thereafter, the first
appellant Ashraf pushed the deceased towards the western side of
the quarters. He also pulled the deceased down and restrained him
there. Thereafter, the first appellant sat on the chest of the
deceased and fisted him. While so, the first appellant directed the
second appellant to bring a knife. Accordingly, the second appellant
brought a knife. Thereafter, the second appellant Navas stabbed on
the nose and left side of the chest of the deceased with a knife. The
deceased was immediately taken to Sukapuram Hospital at Edappal.
However, on the way to the hospital, he succumbed to the injuries.
3. CW1 (not examined as he was not alive) witnessed the
incident. He went to the police station and launched Ext.P18
Statement to PW21, who in turn registered Ext.P18(a) F.I.R. The
investigation was taken over by PW22 on 18.9.2002. He conducted
the inquest on the body of the deceased at 8.30 a.m. on that day
and prepared Ext. P4 inquest report. On that day at 12.15 p.m.,
PW22 visited the place of occurrence and prepared Ext.P1 scene
mahazar. He arrested the appellants on 18.9.2002 at 8.30 p.m. On
questioning the second appellant, the second appellant had given
Ext.P19 disclosure statement and pursuant to Ext.P19 disclosure
statement, MO8 knife was recovered by PW22 at the instance of the
second appellant, as per Ext.P13 mahazar. After completing the
investigation, PW22 laid the charge before the court.
4. In the trial, PW1 to PW22 were examined and Exts.P1 to
P23(a) were marked for the prosecution, besides identifying MO1 to
MO8. No evidence was adduced on the side of the defence.
5. We have heard the learned counsel for the appellants
Sri.T.K.Ajith Kumar and the learned Public Prosecutor
Sri.K.K.Rajeev.
6. PW14 is the doctor who conducted the autopsy on the
body of the deceased and issued Ext.P10 postmortem certificate.
The following ante-mortem injuries were noted by PW14 in Ext.P10
postmortem certificate:-
"Injuries (Ante-mortem):-
1. Incised wound 2.1x0.5x1 cm at the root of nose,
vertically placed. There was a cut in the nasal
bone for a depth 0.7 cm.
2. Linear abrasion 5x0.2 cm on the top of right side
of head 5 cm above right eyebrow and 5.5 cm
outer to midline.
3. Abrasion 7x3 cm on the back of right elbow and
right forearm.
4. Abrasion 4.5x1.5 cm on the back of right upper
arm 3 cm above elbow.
5. Linear abrasion 5.5x0.3 cm on the outer aspect of
right side of abdomen horizontally placed 13 cm
outer to midline and 5 cm below costal margin.
6. Abrasion 4x1.8 cm on the front of right knee.
7. Incised penetrating wound 2.9x1.1 cm on the
lower part of left side of chest obliquely placed
with its upper end placed, 18 cm below axilla.
The upper end was split and lower end was
sharply cut. The wound had cut the muscles of
the left side of chest. It had entered the chest
cavity by cutting the intercostals muscles and
vessels between the 9th and 10th ribs on left side.
It had pierced the lower lobe of left lung
(2.8x0.5x1.5 cm). The left chest cavity contained
700 ml of fluid blood. The left lung was found
collapsed. The total minimum depth of the wound
was 11 cm."
PW14 opined that the death of the deceased was due to the incised
penetrating injury sustained to the chest. Injury No.7 is the incised
penetrating injury sustained to the chest. PW14 opined that injury
Nos.1, 2, 5 and 7 could be caused with MO8 knife. It is the further
evidence of PW14 that injury No.7 in Ext.P10 is fatal and sufficient in
the ordinary course to cause death. PW14 specifically stated that
the injuries noted in Ext.P10 could not be possible in a fall. Thus, it
is proved from the evidence of PW14 that the deceased died due to
the incised penetrating injury No.7 sustained to the chest of the
deceased.
7. PW2 to PW6 are the occurrence witnesses examined by
the prosecution to prove the prosecution case. But, none of the
above witnesses had witnessed the entire incident in this case.
Each witness had witnessed the incident partly.
8. PW2 was a tenant of the deceased and a neighbour of the
appellants. She stated that on the fateful day, she saw the
deceased talking with the appellants regarding payment of rent.
Thereafter, the first appellant caught hold of the hand of the
deceased and both the appellants pushed the deceased to the
western side of the quarters where PW2 and the appellants were
residing. The deceased was then pushed down by the appellants.
The first appellant sat on the chest of the deceased and directed the
second appellant to bring a knife. Since PW2 had fear in her mind,
she entered into her house and closed the door. The above incident
was at about 6.15 p.m., as per the evidence of PW2. PW2 did not
see the rest of the incident.
9. PW3 was a neighbour of the appellants. She stated that
the incident in this case occurred at about 6.30 p.m. on 17.9.2002.
Her evidence is that while she was proceeding for the evening
prayer, she heard a sound. She opened the window. Then she saw
the appellants pushing the deceased towards the northern side of
the quarters of PW3. She shut the window and started her prayer.
After the prayer, when she came out, she found the deceased
Ibrahim with blood all over his body. He was limping. People also
assembled there. The evidence of PW3 would show that she had
seen the deceased immediately after the incident. She had also
seen the deceased and the appellants just before the incident.
10. PW4 was also a neighbour of the appellants. On the
fateful day at about 6.15 p.m., while he was returning to his house
after his job, he saw the appellants talking on the side of the road.
He entered into his house and changed his dress. Then he heard a
sound from the western side of the quarters of the deceased. He
came out of the house. Then he found the deceased Ibrahim lying
there. Blood was oozing out from the body of the deceased. He
also found both the appellants moving away from there hurriedly.
The deceased was taken from there in a Maruthi van by CW1 (not
examined). PW4 identified MO4 lungie and MO5 shirt worn by the
first appellant Ashraf and MO6 lungie and MO7 shirt worn by the
second appellant Navas at the relevant time.
11. PW5 is the daughter-in-law of the deceased. On the
fateful day, she planned to go to the house of a relative along with
the deceased and her children, as the said relative died. At that
time, CW7 Gopalakrishnan (not examined) came there to borrow
money from the deceased. Then the deceased told the said
Gopalakrishnan that he would collect rent from the quarters and give
the same to Gopalakrishnan. Accordingly, he went to the quarters
along with the said Gopalakrishnan. PW5 saw both the appellants
proceeding towards the quarters. After some time, she saw the
appellants coming back hurriedly. PW5 was waiting in the Omni van
in which she came there with the deceased. In a little while, she saw
the said Gopalakrishnan(CW1) bringing the deceased. The
deceased told PW5 that the second appellant Navas stabbed him.
The deceased also told her that both the appellants assaulted him.
She had given water to the deceased as requested by him. The
deceased was immediately taken to Sukapuram Hospital. However,
before reaching there, the deceased died.
12. PW6 was a neighbour of the deceased. PW6 stated that
on getting information that somebody sustained injury, he rushed to
the spot. Then, he saw the deceased Ibrahim lying in the seat of a
Maruthi van with blood all over his body. He asked the deceased as
to what happened. Then the deceased uttered that the second
appellant Navas stabbed him. The deceased was taken to the
hospital. PW6 also accompanied the deceased to the hospital.
After examining the deceased, the doctor declared that the
deceased died.
13. The evidence of PW2 to PW4 would show that they
witnessed the incident only in part. PW5 and PW6 did not see the
incident. PW5 and PW6 stated that the deceased told them that the
second appellant Navas stabbed him with a knife. The learned
Public Prosecutor has submitted that the evidence of PW5 and PW6
that the deceased told them that the second appellant Navas
stabbed him with a knife, is admissible under Section 32(1) of the
Evidence Act. The learned counsel for the appellants, on the other
hand, has argued that the evidence of PW5 and PW6 with regard to
the dying declaration made by the deceased, cannot fall under
Section 32(1) of the Evidence Act, as the said dying declaration was
not recorded by a Magistrate or a police officer or a doctor and
consequently, their evidence cannot be used to bring home the guilt
of the appellants. Clause (1) of Section 32 of the Evidence Act
provides that statements made by a person as to the cause of his
death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that person's
death comes into question, are themselves relevant facts. In the
present case, the cause of death of the deceased comes into
question. In the said circumstances, the statement made by the
deceased before PW5 and PW6 that the deceased was stabbed
with a knife by the second appellant Navas is relevant.
14. The Apex Court in Prakash and another v. State of M.P.
(AIR 1993 SC 65) observed in paragraph 11 as follows:-
"In the ordinary course, the members of the
family including the father were expected to ask the
victim the names of the assailants at the first
opportunity and if the victim was in a position to
communicate, it is reasonably expected that he
would give the names of the assailants if he had
recognised the assailants. In the instant case there
is no occasion to hold that the deceased was not in
a position to identify the assailants because it is
nobody's case that the deceased did not know the
accused persons. It is therefore quite likely that on
being asked the deceased would name the
assailants. In the facts and circumstances of the
case the High Court has accepted the dying
declaration and we do not think that such a finding is
perverse and requires to be interfered with."
15. In Ramawati Devi v. State of Bihar (AIR 1983 SC 164),
the Apex Court observed thus:
"A statement, written or oral, made by a person
who is dead as to the cause of his death or as to any of
the circumstances of the transaction which resulted in
his death, in cases in which the cause of that person's
death comes into question, becomes admissible under
section 32 of the Evidence Act. Such statement made
by the deceased is commonly termed as dying
declaration. There is no requirement of law that such a
statement must necessarily be made to a Magistrate.
What evidentiary value or weight has to be attached to
such statement, must necessarily depend on the facts
and circumstances of each particular case."
16. In Bhajju alias Karan Singh v. State of Madhya
Pradesh ((2012) 4 SCC 327), the Apex Court observed thus:
"The law is very clear that if the dying
declaration has been recorded in accordance with
law, is reliable and gives a cogent and possible
explanation of the occurrence of the events, then the
dying declaration can certainly be relied upon by the
Court and could form the sole piece of evidence
resulting in the conviction of the accused. This Court
has clearly stated the principle that Section 32 of the
Indian Evidence Act, 1872 (for short 'the Act') is an
exception to the general rule against the admissibility
of hearsay evidence. Clause (1) of Section 32 makes
the statement of the deceased admissible, which is
generally described as a "dying declaration"."
17. In Ashabai and another v. State of Maharashtra ((2013)
2 SCC 224), the Supreme Court held as follows:
"There is no particular form or procedure
prescribed for recording a dying declaration nor it is
required to be recorded only by a Magistrate. As a
general rule, it is advisable to get the evidence of
the declarant certified from a doctor. In appropriate
cases, the satisfaction of the person recording the
statement regarding the state of mind of the
deceased would also be sufficient to hold that the
deceased was in a position to make a statement. It
is settled law that if the prosecution solely depends
on the dying declaration, the normal rule is that the
courts must exercise due care and caution to
ensure genuineness of the dying declaration,
keeping in mind that the accused had no
opportunity to test the veracity of the statement of
the deceased by cross-examination. As rightly
observed by the High Court, the law does not insist
upon the corroboration of dying declaration before it
can be accepted. The insistence of corroboration
to a dying declaration is only a rule of prudence.
When the Court is satisfied that the dying
declaration is voluntary, not tainted by tutoring or
animosity, and is not a product of the imagination of
the declarant, in that event, there is no impediment
in convicting the accused on the basis of such dying
declaration"
18. In State of Madhya Pradesh v. Dal Singh & others (AIR
2013 SC 2059), the Supreme Court held thus:
" The law on the issue can be summarised to
the effect that law does not provide who can record
a dying declaration, nor is there any prescribed
form, format, or procedure for the same. The
person who records a dying declaration must be
satisfied that the maker is in a fit state of mind and
is capable of making such a statement. Moreover,
the requirement of a certificate provided by a
doctor in respect of such state of the deceased, is
not essential in every case."
19. In Shudhakar v. State of Madhya Pradesh ((2012) 7
SCC 569), the Apex Court held that a dying declaration can be oral
or in writing and any adequate method of communication, whether
by words or by signs or otherwise, will suffice, provided the indication
is positive and definite.
20. The above discussion makes it clear that it is not necessary
that the dying declaration must be recorded by a Magistrate or a
police officer or a doctor. A dying declaration can be made to any
person including a close relative of the deceased. The only thing is
that the person to whom the dying declaration is made must be
satisfied that the declarant was in a fit state of mind to give the
declaration. The Court must also be satisfied that the deceased was
in a fit and conscious state of mind to give the declaration at the time
when he had given the declaration. The Court must be further
satisfied that the witness to whom the dying declaration was given is
a witness of credence.
21. The evidence of PW5 and PW6 clearly shows that the
deceased was in a fit and conscious state of mind to speak and give
the declaration. From the materials on record, we are fully
convinced that the victim was in a sound state of mind to make the
declaration as spoken to by PW5 and PW6. We are further satisfied
that PW5 and PW6 are reliable witnesses. PW5 is the daughter-in-
law of the deceased. She is not having any enmity towards the
appellants to falsely implicate them in a case like this. Since there
was no ill-motive on the part of PW5 to falsely implicate the
appellants, the evidence of PW5 with regard to the dying declaration
made by the deceased can be safely accepted. PW6 is a neighbour
and a friend of the deceased. PW6 is also not having any enmity
towards the appellants to falsely implicate them in a case like this.
Not even a suggestion was made during the cross-examination of
PW6 that he had any ill-motive to implicate the appellants in this
case. In the absence of any such ill-motive, the evidence of PW6
can be safely accepted. The above discussion makes it clear that
the evidence of PW5 and PW6 with regard to the dying declaration
made by the deceased can be safely accepted. Since the
declaration was made by the deceased with regard to the cause of
his death, the said declaration is, no doubt, admissible under
Section 32(1) of the Evidence Act.
22. It has been submitted by the learned Public Prosecutor
that the statement made by the deceased to PW5 and PW6 falls
under Section 6 of the Evidence Act also in addition to Section 32(1)
of the Evidence Act. The principle embodied in Section 6 of the
Evidence Act is usually known as the principle of res gestae, which
is a kind of exception to the rule against hearsay. What it means is
that a fact which, though not in issue, is so connected with the fact in
issue "as to form part of the same transaction" becomes relevant by
itself. To form a particular statement as part of the same transaction,
utterances must be simultaneous with the incident or substantial
contemporaneous that is made either during or immediately before
or after its occurrence [See Bhairon Singh v. State of Madhya
Pradesh (AIR 2009 SC 2603)].
23. Section 6 of the Evidence Act reads as follows:-
"6. Relevancy of facts forming part of
same transaction-- Facts which, though not in
issue, are so connected with a fact in issue as to
form part of the same transaction, are relevant,
whether they occurred at the same time and place
or at different times and places."
Illustration (a) to the said Section is important in this context,
which is extracted hereunder:-
" A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by-
standers at the beating, or so shortly before or
after it as to form part of the transaction, is a
relevant fact.
24. . It is clear from illustration (a) to Sec. 6 of the Evidence
Act that the utterances made by the accused or the victim or the
by-stander just before, during or immediately after the commission of
a crime are relevant facts. A "by-stander" is a person who is
present at the scene of occurrence. A person, who arrives the
scene of occurrence after the commission of a crime, cannot be
said to be a by-stander. Therefore, the utterances made by any such
person, who reaches the scene of occurrence after the commission
of the crime, are not relevant under this section.
25. The word "transaction" in Sec.6 of the Evidence Act was
interpreted by this Court in Ponnappan v. State (1994(2) KLT 1027)
thus:-
"The word "transaction" in the section in its
largest sense can be termed as the group of facts so
connected together as to be referred to the crime
itself. Whether a series of acts are so connected
together as to form the same transaction is a
question of fact. Proximity of time, continuity of
action and unity of purpose or design are factors
governing the same question of fact."
26. The Apex Court in Gentela Vijayavardhan Rao and
Another v. State of A.P. (1996 (6) SCC 241) referring to Sec.6 of the
Evidence Act held thus:-
" The principle of law embodied in S.6 of the Evidence Act
is usually known as the rule of res gestate recognised in
English law. The essence of the doctrine is that a fact
which, though not in issue, is to connected with the fact in
issue "as to form part of the same transaction" becomes
relevant by itself. This rule is roughly speaking an
exception to the general rule that hearsay evidence is not
admissible. The rationale in making certain statement or
fact admissible under S.6 of the Evidence Act is on
account of the spontaneity and immediacy of such
statement or fact in relation to the fact in issue. But it is
necessary that such fact or statement must be part of the
same transaction. In other words, such statement must
have been made contemporaneous with the acts which
constitute the offence or at least immediately thereafter.
But if there was an interval, however slight it may be,
which was sufficient enough for fabrication, then the
statement is not part of res gestate."
27.The Apex Court in Rattan Singh v. State of H.P. (1997 (4)
SCC 161) examined the applicability of S.6 of the Evidence Act to
the statement of the deceased and held thus:-
"Here the act of the assailant intruding into the
courtyard during dead of the night, victim's
identification of the assailant, her pronouncement that
appellant was standing with a gun and his firing the
gun at her, are all circumstances so interlined with
each other by proximity of time and space that the
statement of the deceased became part of the same
transaction. Hence it is admissible under S.6 of the
Evidence Act".
28. A Division Bench of this Court in Biju v. State of Kerala
(2006 (3) KLJ 549) held thus:-
"The test of admissibility of evidence as part
of res gestae is that the declaration should be so
contemporaneous, so intimately interwoven or
connected with the transaction in issue, giving no
room for any premeditation or opportunity for
fabrication of evidence."
29. Sec.6 of the Evidence Act is an exception to the general
rule whereunder the hearsay evidence becomes admissible. But for
bringing such hearsay evidence within the provisions of S.6, what is
required to be established is that it must be almost
contemporaneous with the acts and there should not be an interval
which would allow fabrication. The statements sought to be
admitted, therefore, as forming part of res gestate, must have been
made contemporaneously with the acts or immediately thereafter
[(see Sukhar v. State of U.P. (1999 (9) SCC 507)].
30. Where the transaction consists of different acts, in
order that the chain of such acts may constitute the same
transaction, they must be connected together by proximity of time,
proximity or unity of place, continuity of action and community of
purpose or design. The spontaneity of the statement is the
guarantee of the truth. The reasons for its admissibility under
Section 6 of the Evidence Act is that it is a part of the transaction
and not merely because it is spontaneous. The statement is
relevant only if it is that of a person, who had seen the actual
occurrence and who uttered it simultaneously with the incident or
soon thereafter as to make it reasonably certain that the speaker is
still under the stress of the excitement caused by his having seen
the incident. In order to make the statement of a bystander
admissible, it must have been made, at the time of transaction or
shortly before or after it. The statement uttered or the act done must
be a spontaneous reaction of the person witnessing the crime and
forming part of the transaction. The bystanders' declaration must
relate only to that which came under their observation.[See
Bhaskaran v. State of Kerala (1985 KLT 122)]. In the present
case, the declaration was made by the victim himself, immediately
after the incident of sustaining injury by him. In the said
circumstances, the evidence of PW5 and PW6 about what the
victim/deceased said immediately after the incident, is admissible
under Section 6 of the Evidence Act. The above discussion would
make it clear that apart from Sec.32 (1) of the Evidence Act, the
aforesaid statement of the deceased can be admitted under Sec.6
of the Evidence Act on account of its proximity of time to the act of
murder. In either case, whether it is admissible under S.32 (1) or
under S.6 of the Evidence Act, it is substantive evidence, which can
be acted upon with or without corroboration in finding guilt of the
accused [(see Rattan Singh's case (supra)].
31. The evidence regarding the discovery of MO8 knife by
PW22 at the instance of the appellant is another piece of evidence
connecting the appellant with the crime. The evidence of PW22 is
that he arrested the appellants on 18-9-2002 at 8.30 p.m. and
when questioned, the 2nd appellant had given Ext. P19 disclosure
statement and pursuant to Ext. P19 disclosure statement and as
led by the second appellant, MO8 knife was discovered by PW22 at
the instance of the second appellant,as per Ext.P13 mahazar. The
evidence of PW22 regarding the discovery of MO8 knife at the
instance of the second appellant in pursuance to the disclosure
statement given by the second appellant is, not doubt, admissible
under section 27 of the Evidence Act. Ext.P17 report of chemical
analysis would show that MO8 was stained with human blood. The
blood stains on MO8 knife fastens the culpability of the appellants.
32. The evidence discussed above would show that PW2 to
PW4 had seen part of the occurrence. There is absolutely nothing
on record to indicate that PW2 to PW4 had any ill-motive to implicate
the appellants in a case like this. The evidence of PW5 and PW6 is
that the deceased had given dying declaration that the deceased
was stabbed by the second appellant Navas. The deceased also told
PW5 that both the appellants assaulted him. The medical evidence
of PW14 coupled with Ext.P10 postmortem certificate would show
that the deceased died due to the incised penetrating injury
sustained to his chest. Injury No.7 is the incised penetrating injury
sustained to the chest. PW14 opined that injury Nos.1, 2, 5 and 7
could be caused with MO8 knife. Even though the appellants
contended that the deceased sustained injuries in a fall, the
evidence of PW14 clearly shows that the injuries sustained by the
deceased could not be possible in a fall. Thus, the contention of the
appellants that the deceased sustained injury in a fall is ruled out by
the evidence of PW14. The evidence of PW22 regarding the
discovery of blood stained MO8 knife at the instance of the
second appellant supports the medical evidence of PW14. MO5 shirt
worn by the first appellant at the relevant time contained human
blood as per Ext.P17 report. The evidence on record shows that the
first appellant had actively involved in the commission of the offence
in this case. Therefore, it was only natural that MO5 shirt worn by
the first appellant was stained with human blood. The evidence
discussed above clearly shows that both the appellants had active
participation in the crime, sharing common intention. Having
meticulously gone through the evidence on record, we are
fully satisfied that the court below had correctly evaluated the
evidence and reached the conclusion that the deceased died due to
the incised penetrating stab injury inflicted on his chest by the
second appellant with MO8 knife in furtherance of the common
intention of both the appellants, as alleged by the prosecution.
33. Now the question to be considered is as to whether the
offence committed by the appellants falls under Sec. 302 IPC or
under Part I of Sec. 304 IPC. It is in the evidence that there was
sudden quarrel between the deceased and the appellants. However,
the sequence of events which led to the sustaining of injuries by the
deceased is not available on record. The appellants were not
carrying any weapon with them at the time of commencement of
the quarrel. This itself would show that the act was not a pre-
meditated one. There is also no material before the Court to
indicate that the appellants took any undue advantage or the
appellant acted in a cruel or shocking manner. The evidence on
record would show that the 2nd appellant also sustained injuries in
the incident. This itself would show that there was scuffle between
the appellants and the deceased. There is no reasonable or
acceptable evidence as to how it started and who the aggressor
was. In the said circumstances, we are of the view that Exception 4
to Section 300 IPC is clearly attracted in this case and consequently,
the offence falls under Section 304 Part-1 of the Indian Penal Code .
In the result, this Criminal Appeal stands allowed in part. The
conviction and sentence passed by the trial court under Section 302
read with Section 34 IPC stand set aside. The appellants are
convicted under Section 304 Part-1 read with Section 34 IPC.
Each of the appellants is sentenced to rigorous imprisonment for
ten years each and a fine of Rs.10,000/- each with a default clause
for rigorous imprisonment for two years each under Section 304
Part-1 read with Section 34 IPC. The conviction and sentence
passed by the trial court under Section 323 read with Section 34 IPC
and Section 341 read with Section 34 IPC stand confirmed.
(K.T.SANKARAN)
Judge
(B.SUDHEENDRA KUMAR)
Judge
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