Dr. A.K. Jayasankaran Nambiar, J.

1. The sole accused in Crime No.199 of 2010 of Panoor Police Station is the appellant before us aggrieved by the judgment dated 28.03.2019 of the Additional Sessions Judge-II, Thalassery in S.C.No.451 of 2011.

The Prosecution case:

2. The case of the prosecution is that at about 06.30 a.m. on 18.03.2010, the accused committed the murder of one Vasu, son of Kunhiraman [hereinafter referred to as the “deceased”] by intentionally inflicting fatal injuries on him using a billhook. The motive for the murder was apparently to settle scores with the deceased on account of a property dispute that was subsisting between the accused and the deceased. The deceased died on the spot within a short while after the infliction of the fatal injuries.

The investigation and trial:

3. The investigation commenced with the registration of Crime No.199 of 2010 of Panoor Police Station, and on its culmination, the final report was laid before the Additional Chief Judicial Magistrate, Thalassery in C.P.No.6 of 2011. The appellant/accused appeared before the Additional Chief Judicial Magistrate, Thalassery, when he was furnished with copies of all the relevant prosecution records. Thereafter, on complying with the other procedural  formalities, the learned Magistrate committed the case to the Court of Sessions, Thalassery, from where it was made over to the Additional Sessions Judge-II, Thalassery for trial. On the appearance of the appellant/accused before the trial court, the charges framed against him were read over and explained to him, to which he pleaded not guilty. He was thereafter released on bail.

4. In the trial that followed, the prosecution examined PWs.1 to 20 and marked Exts.P1 to P25. MOs.1 to 21 were also identified. On the side of the defence, Exts.D1 to D8 were marked albeit through the prosecution witnesses. Exts.D3 to D5 and D8 are contradictions in the statement of prosecution witnesses marked under Section 162 of the Code of Criminal Procedure [hereinafter referred to as the “Cr.P.C.”]. On closure of the prosecution evidence, the accused was examined under Section 313 of the Cr.P.C. when he denied the incriminating circumstances put to him and reiterated his plea of innocence. In an additional statement that was filed by him, he stated as follows:

                  “A suit was filed by deceased Vasu, his mother and sister against him as O.S.342/1991 to restrain him from trespassing to the property from where the alleged incident took place. An application for interim injunction filed in the said suit as I.A.2308/1991 claiming title and possession of deceased and others in the said property and seeking injunction to restrain him from trespassing to the said property was dismissed by the court. He stated that in 1999, O.S.342/1991 happened to be decreed against him, challenging which AS 538/1999 was filed by him before the Honourable High Court of Kerala, along with an application for stay of operation of the decree in O.S.342/1991. It is stated that, the Honourable High Court was pleased to stay the operation of decree till disposal of the appeal. He stated further that, A.S.538/1999 was decreed by the Honourable High Court, by setting aside the decree and judgment in O.S.342/1991 and by remanding the matter to the court below for fresh consideration. According to him, accordingly the suit was tried afresh and decreed in his favour by recognizing his rights and possession over the suit property. So his contention was that, the suit property was throughout in his ownership and possession. He contended that, he was  taking usufructs from the property and the deceased was never in possession and enjoyment of the same. It is stated that, on the date of incident by about 06.00 a.m when he reached the property with a bucket for collecting cashew nuts, the deceased trespassed to the property, restrained him, broken the bucket and attacked him with the billhook possessed by the deceased. It is stated that, in a scuffle, his spectacles, chappals and tiffin box were thrown and he ran away from the scene of occurrence to save his life. He stated that, while he was running away from the scene of occurrence he had seen some persons coming to the scene of occurrence with whom the deceased had altercation whereby the deceased sustained grievous hurt. According to him, the henchmen of one Gangadharan who entertained illwill and rivalry towards the deceased have so attacked the deceased. He stated further that, after the incident the associates of the deceased and activists of Congress party reached his house and threatened to kill him, on knowing which, he fled from there. He stated that, he sustained injuries in the scuffle taken place with the deceased, which were healed on treatment done by himself. It is stated that, after leaving the place for some days he surrendered before the police. He blamed the investigating officer for falsely creating evidence to foist this case against him. According to him, the witnesses are all interested persons. It is stated that, the property in RS 151/1 owned by him was entrusted by the deceased and his cousin Chandri to Gangadharan for conducting quarry. According to him, while the said entrustment was subsisting, the deceased and his cousin Chandri again entrusted the rights to conduct quarry to one George @ Thankachan. His case was that, on account of this there was dispute between deceased and George on one side and Gangadharan on the other side. He stated that, subsequently he filed a writ petition before the Honourable High court seeking a revisit in the matter of permission to conduct quarry given by deceased and cousin, due to which, the deceased and George are having illwill towards him. According to him, the investigating officer of the case also was party to the said writ petition. He asserted that, except making an attempt to escape from attack as part of a self defence, he has not committed any offence as alleged by the prosecution.

5.     The trial court then considered the matter under Section 232 of the Cr.P.C and finding no ground to acquit the appellant/accused at that stage, called upon the appellant/accused to enter his defence and to produce such evidence as he might have in support of the defence. The defence then marked Exts.D9 to D14 in addition to Exts.D1 to D8 that had already been marked through the prosecution witnesses. On conclusion of the defence evidence, the arguments of the Prosecutor and defence counsel were heard and a finding of conviction entered against the appellant/accused under Section 302 of the Indian Penal Code [hereinafter referred to as the “IPC”]. The appellant/accused was sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.50,000/-, in default to undergo rigorous imprisonment for a further period of one year. It is further directed that if the fine is recovered, it should be paid to PW2 Bincy, the daughter of the deceased, in terms of Section 357(1)(b) of the Cr.P.C. Set off as eligible under Section 428 of the Cr.P.C was also allowed.

6.     In the appeal before us, we have heard Sri.M.P.Madhavankutty on behalf of the appellant/accused and Sri.T.R.Renjith, the learned Public Prosecutor on behalf of the respondent/State. We have also meticulously gone through the evidence on record as also the precedents relied upon by counsel on either side.

Discussion and finding:

7. At the outset, we might observe that this is a case where the trial court convicted the appellant/accused under Section 302 IPC based entirely on the ocular evidence of PW2 Bincy which it found to be credible and unimpeachable. She is the daughter of the deceased, and during her examination before the trial court, she stated that, on 18.03.2010 by about 5.30-6.00 a.m, after waking her up to study, her father went to the nearby property for collecting cashew nuts. Thereafter, by about 6.30 a.m while she was standing in the courtyard, brushing her teeth, she heard a scream from the property and rushed to the said place. She then saw the accused repeatedly inflicting injuries on her father using a billhook. According to her, after causing an injury on the right leg of her father, the accused ran away from there by shouting to her that, he had 'finished' her father She went on to state that, when she approached her father and saw the injuries on his head and legs, she supported him and laid him down with his head on her lap. At that time, her father told her that it was the accused who had inflicted injuries on him. She further deposed that when her neighbours Anitha (PW3) and Shaji reached there she told them about the acts committed by the accused; that some other persons also reached there and one Kumaran attempted to give some water to her father, which he could not drink and that was when she understood that her father had died. She went on to depose that thereafter she fell unconscious and regained consciousness from the house of her neighbour Kalliyani; that after regaining consciousness she disclosed the facts to PW1. She also deposed about the property dispute between her deceased father and the accused. According to her, the suit was decreed in favour of her deceased father and the accused, who got infuriated, had proclaimed that her deceased father would not be allowed to enjoy the property. She also identified the accused, who is related to her, and MO1 billhook that was used by him for inflicting injuries on her deceased father. The dress worn by the accused at the time of the occurrence, which was seized by the police during investigation was also identified by her as MO's 2 and 3. The billhook carried by her deceased father when he went for collecting cashew nuts was identified through her as MO5. The shirt worn by her deceased father at the time of the incident was identified as MO4 and the lungi worn by him was identified as MO6. MO7 and MO8 were identified as broken pieces of bucket carried by her deceased father while collecting cashew nuts. The shoes worn by her deceased father were identified as MO9 (a) and (b) and the belt as MO10. The top and bottom of the blood stained churidar worn by her at that time when  she had placed her deceased father's head on her lap were identified as MO's 11 and 12.

8. PW2's testimony stood corroborated in all material particulars by the testimonies of PW1 Raveendran, PW3 Anitha and PW6 Ratheeshan. Her description of the injuries inflicted by the appellant/accused on her father also stands corroborated by the medical evidence on record, as spoken to by PW16 Dr.S.Gopalakrishna Pillai through whom Ext.P10 postmortem report was marked. The ante-mortem injuries noticed by PW16 Dr.S.Gopalakrishna Pillai are as given below, and when read together with his opinion that they could have been caused by MO1 billhook and further, that the deceased died on account of the bleeding that resulted from those injuries, would suffice to support a finding that the death of the deceased was homicidal in nature and a murder as defined under the IPC:

                   (1)     Incised wound (with marginal contusion), 8.5 x 1 cm obliquely placed on the left side of head, the front lower end being 2 cm above the left ear. A chip of bone, 2.5 x 1 cm, was found cut away from the bone underneath.

                  (2)      Incised wound 3 x 0.5 cm on the front of head, 8 cm above the left eyebrow.

                  (3)      Superficial incised wound 4 x 1 cm, raising a skin flap on the head, 1.5 cm behind injury No.2.

                  (4)      Incised wound 2.5 x 1 cm, oblique, on the forehead, 1 cm above the outer end of left eyebrow.

                  (5)      Superficial linear cut 2.5 cm long across the tip of nose.

                  (6)      Incised wound 9 x 3 cm obliquely placed on the back of right wrist and forearm; both bones underneath were partially cut; radial artery was found cut in to two.

                  (7)      Incised wound 6 x 1 x 3 cm on the front of right palm, at its middle.

                  (8)      Incised wound 9 x 3 cm muscle deep, horizontally placed on the outer aspect of right thigh at its middle.

                  (9)      Incised wound 5 x 0.5 cm, parallel to injury No.7 and 0.5 cm below it.

                  (10)    Incised wound 12 x 3 cm obliquely placed on the outer aspect and top of right ankle. Fibula was cut into two; tibia showed a partial cut; arteries and veins were severed.

                  (11)    Incised wound 13 x 3.5 cm obliquely placed on the back and outer aspect of left forearm, 3 cm below the elbow. The ulna bone showed a superficial cut on it.

                  (12)    Incised wound 2.5 x 0.5 cm x 2 cm horizontal over the left hip region.

9.     In the appeal before us, the argument of the learned counsel for the appellant/accused was largely focused on the inconsistency in the FI Statement given by PW1 and the testimony of PW2. He points out that while PW2 deposed to have told PW1 that she had seen the accused inflict some of the injuries on her father, the said fact was omitted in the FI Statement given by PW1 to the police. Although the learned counsel for the appellant/accused would highlight the said inconsistency to cast doubts on the credibility of PW2, we find ourselves unable to do so. It is trite that the primary object of an FI Statement or FI Report is only to set the criminal law in motion and it would be unreasonable to expect an FI Statement to contain every minute detail pertaining to an incident with unmistakable precision [Jitender Kumar v. State of Haryana - [AIR 2012 SC 2488]]. In the instant case, the mere fact that PW1 had reported the incident based on information that he had gathered from persons who had assembled at the crime scene, cannot dislodge the credibility accorded by the trial court to the ocular evidence of PW2. So long as the evidence of PW2 withstood the rigorous cross examination, inspired confidence in the trial court and stood corroborated in material particulars by the evidence of PW3, PW6 and the medical evidence on record, it had to be seen as evidence that conformed to the sterling quality adverted to by the Supreme Court in Rai Sandeep v. State (NCT of Delhi) – [(2012) 8 SCC 21], where it was observed as follows:

                  “In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

10.    We also find that there are two other aspects of PW2's testimony that though not specifically adverted to by the trial court, when considered for their evidentiary value, in the light of the credibility attached to PW2's testimony, would strengthen the prosecution case against the appellant/accused. We find that PW2, in the course of her testimony, clearly deposed that her deceased father had told her in the moments prior to his death that it was the accused who had inflicted the injuries on him. The said statement was significant because, even according to PW2, she had seen the accused inflict only some of the injuries on her deceased father and she was not there when the assault had commenced. The statement made to her by her father in the moments before he succumbed to those injuries would effectively constitute a dying declaration within the meaning of the term under Section 32 of the Evidence Act. The said statement coupled with the other statements that find mention in the testimony of PW2, such as the statement made by the accused that he had finished her father I and that she had told PW3 that her father had told her that it was the accused who had inflicted injuries on him, would all be relevant facts that fall within the scope of res gestae under Section 6 of the Evidence Act. Section 6 of the Evidence Act is an exception to the general rule whereunder hearsay evidence becomes admissible. As per the provisions of the said Section, what is required to be established is that the statements relied upon were almost contemporaneous with the acts that constituted the crime and that there should not be any interval which would allow for fabrication. As was noticed by the Supreme Court in Gentela Vijayavardhan Rao and Another v. State of A.P. - [(1996) 6 SCC 241], the essence of the doctrine of res gestae 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. The rationale that informs the making of such facts admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. It is therefore necessary that such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. If there is an interval, however slight it may be, which,  in the opinion of the court, is sufficient enough for fabrication, then the statement in question would not form part of res gestae. Placing reliance on the said principle in Sukhar v. State of U.P. - [(1999) 9 SCC 507], the court found that statements made by witness indicating that the injured had told him that his nephew had fired at him, would become admissible under Section 6 of the Evidence Act since the statement was made in such close proximity to the act constituting the crime that it could be seen as forming part of the same transaction. In as much as in the instant case, the trial court believed the ocular testimony of PW2, the statements aforementioned of her deceased father, the accused and her own statement to PW3, as deposed by her have to be seen as contemporaneous and spontaneous in point of time, and as forming part of the same transaction. The said statements would therefore add to the evidentiary weightage of the testimony of PW2 while entering a finding of conviction against the appellant/accused under Section 302 of IPC.

11.    The other aspect on which the learned counsel for the appellant/accused laid considerable emphasis was the alleged inconsistency in the findings of PW16 doctor, who conducted the postmortem of the deceased in Ext.P10 document and that of the chemical examiner in Ext.P24 chemical analysis report as regards the group to which the blood detected on various MOs belonged. While PW19, the Investigating Officer had seized the blood stained clothes of the deceased and PW2 from the house of the deceased under Ext.P4 seizure mahazar, the blood stained clothes of the accused and MO1 billhook that contained blood stains were recovered based on the disclosure statement of the accused, to the extent admissible under Section 27 of the  Indian Evidence Act. While the evidence of PW16, who issued Exhibit P10 postmortem certificate was that the deceased's blood was of group O+ve, Ext.P24 chemical analysis report noted that the blood on the dress of the deceased sent for chemical analysis was of 'B' group. According to the learned counsel for the appellant/accused, this inconsistency goes to the root of the prosecution case and could not have been overlooked by the trial court.

12.    On a consideration of the above argument, we find that the trial court has, in fact, dealt with the aforesaid contention in detail at paragraphs 47 to 51 of its judgment, which read as follows:

                  “47. The blood group of the deceased as per Ext.P10 document was O+ve but in the report of chemical analysis marked as Ext.P24, group of blood noted in the dress of the deceased sent for chemical analysis was a 'B' group. In some other material objects, the grouping of blood could not be done as the test result was inconclusive of groups. This was much highlighted by the learned counsel for the accused in cross-examination of PW16 and also in the arguments advanced by him. According to him, the prosecution failed to explain the change in the blood group noted in the blood stained clothes of the deceased. Thus the scientific evidence was vehemently challenged by the learned counsel for the accused.

                  48.     But PW16 has given proper explanation for this change in blood group. By explaining the characteristics of blood, he deposed that, if the clothes were wet with blood at the time of packing, it may cause contamination by bacterial action. According to him, to get proper results, dress ought to have been dried in room temperature before packing. He explained that, the bacteria which causes contamination of blood may produce substances very similar to 'A' and 'B' antigens and on blood group examination the result can go wrong. In this case, there was no evidence to show that, the dresses were dried and packed by the investigating officer.

                  49.     Though PW16 was cross examined at length on this aspect, his explanation regarding the reason for pseudo results could not be successfully refuted. He relied on the text book 'Forensic Medicine' Second Edition written by Dr. P.V Guharaj and Dr. M.R Chandran wherein in page 262 this phenomena was explained by the authors. It is stated that, all the articles of clothing, before being sent to the Chemical Examiner, must be dried properly at room temperature lest putrefaction should be set in. It is stated in the book that, this will render the detection of stains difficult. According to the authors, blood stained clothes, unless dried properly, are likely to be contaminated with gram negative bacteria such as E.coli, Shigella, Salmonella and Proteus. It is explained that, these bacteria contains substances similar in property to A, B, O, agglutinogens and are likely to vitiate the test. In 'Methods of Forensic Science' Volume II edited by Frank Lundquist, at page 190 and 191, the same phenomena was seen explained. On all probabilities in this case the change in blood group could have been caused by such a contamination due to improper packing of clothes, wet wit blood.

                  50.     Even though, PW18 was cross examined at the length on this aspect nothing could be brought out from him to discredit his version regarding chance of having pseudo results in chemical examination of blood stained clothes. The authority of PW18 to give such evidence was challenged by the learned counsel for accused. It was argued that, PW16 is not competent to explain the content Ext.P24 report which is an evidence otherwise admissible under section 293 of Code of Criminal Procedure and accepted as such by court. But, even without assistance of PW18, the prosecutor was at liberty to place such authorities before the Court. So the fact as to whether it was spoken to by PW18 or not is not of any significance. The stress was on the authorities on the point and not on the opinion of PW18.

                  51.     Further, the said circumstance of change of blood group brought out by defence counsel is not at all fatal to the case in hand because, in this case the court is relying on direct ocular version regarding the incident and not on any circumstantial evidence.”

                  As rightly observed by the trial court, the instant being a case where primacy is accorded to the ocular evidence of PW2, which is sufficient to uphold the conviction of the appellant/accused, the inconsistency above as explained by PW16, can have no bearing on the fate of the appellant/accused.

13.    There was also a faint-hearted plea made by the learned counsel for the appellant/accused to treat the instant case as one where the appellant's right to private defence could be invoked to justify his acts. Reliance was also placed by the learned counsel on the decisions of the Supreme Court in Latel v. State of Chhattisgarh – [2001 KHC 1415] and Periyasamy v. State rep. by the Inspector of Police – [2024 KHC 6145] to demonstrate the circumstances under which the right to private defence would extend to occasioning the death of another person while taking steps to protect one's life and property.

14. We are afraid, we cannot accept the contention of the learned counsel for the appellant/accused for more reasons than one. Firstly, there is absolutely no evidence on record that would suggest even remotely that it was the deceased who was the aggressor in the incident in question. Secondly, the appellant/accused did not adduce any evidence in defence to demonstrate that he had sustained any injury to the incident. There was no evidence in the form of medical certificates or wound certificates on the basis of which he could have shown the deceased as the aggressor, and himself, as the defendant, who was attacked by the deceased so as to exercise his right to private defence. Thirdly, even going by the statement of the appellant/accused under Section 313 of the Cr.P.C, he was exercising his right of private defence with a view to protecting his property from encroachment and theft of cashew nuts by the deceased. It is significant that the property is in the nature of an open coconut/cashew garden, and the appellant/accused did not produce any evidence to suggest that he did not have an opportunity to avail the help of the police or neighbours to thwart the alleged attempt of the deceased to attack him. We are therefore not impressed with the said contention of the learned counsel for the appellant/accused, and we are of the definite view that this was not a case where the appellant/accused was defending himself against any acts of aggression by the deceased.

                  In the result, we see no reason to interfere with the well considered judgment of the trial court, and for the reasons stated in the said judgment as supplemented by the findings in this judgment, we dismiss this Crl. Appeal as devoid of any merit.