Ajayachandran @ Ambili vs State Of Kerala

P.B.Suresh Kumar, J.

Trivial issues, at times, would result in extreme violence. This appeal depicts one of such instances.

One Vikraman and his son Jaimon suffered serious injuries in an occurrence that took place at about 6.45 p.m. on 16.04.2014 on the side of a public road close to a culvert near their house. Although they were taken to the Taluk Hospital, Haripad, Vikraman succumbed to the injuries on the way. Jaimon was taken from the said hospital for expert management to the Medical College Hospital, Alappuzha and he survived. At 1.00 a.m. on the following day, Jaimon gave a statement to the Station House Officer, Kareelakulangara about the occurrence, and a case was accordingly registered. The investigation in the case revealed that it was the appellant in the case who caused the death of Vikraman and inflicted injuries on Jaimon. Ajaya Chandran who was residing in the close neighbourhood of the house of the deceased, is the appellant. The second accused is the father of Ajaya Chandran and the third accused is a relative of the first and second accused. Final report was accordingly filed in the case alleging commission of offences punishable under Sections 114, 115, 341, 307, 323, 302, 294(b) and 506(i) read with Section 34 IPC.

The indictment against the accused in the final report is that the deceased failed to return hundred rupees borrowed from the second accused; that there occurred a quarrel and a consequent fight at the venue of a temple festival between the accused, Jaimon and the deceased on 04.04.2014 over the said issue and the accused consequently nourished enmity towards the deceased and his son Jaimon. It was alleged that on account of the said reason, at the instigation of the second accused and with a view to commit murder of the deceased, the appellant caused Jaimon to come near the culvert near their houses and when Jaimon reached there, the appellant fisted on the forehead of Jaimon and when the deceased who came to that place in the meanwhile interfered in the altercation, the appellant fisted the deceased as well. It was further alleged that Jaimon then attempted to save the deceased by brandishing his helmet and the third accused who came to the scene in the meanwhile snatched the helmet from Jaimon and caught hold of him by his neck and wrongfully restrained him. It was further alleged that the appellant then took out the knife carried by him in his waist and stabbed on the left thigh of Jaimon first and then on his left shoulder. It was further alleged that by the time, the second accused caught hold of the deceased and the appellant then stabbed the deceased on his abdomen. It was further alleged that when the deceased fell on the road on account of the stab injury, the second accused sat on his chest and fisted on his forehead. It was further alleged that Jaimon then rushed towards the deceased and at that time, the appellant stabbed Jaimon repeatedly on different parts of his body. It was further alleged that the appellant then pushed aside the second accused, sat on the body of the deceased in his place and stabbed on the chest of the deceased and he died on account of that injury.

On the accused being committed to trial, the Court of Session framed charges against them, to which they pleaded not guilty. Thereupon, the prosecution examined 32 witnesses as PWs 1 to 32 and proved through them 40 documents as Exts.P1 to P40. MOs 1 to 13 are the material objects in the case. Exts.D1 and D2 are the documents marked by the accused through the witnesses examined on the side of the prosecution. When the incriminating circumstances brought out in evidence were put to the accused in terms of the provisions contained in Section 313 of the Code of Criminal Procedure (the Code), they denied the same and maintained that they are innocent. As the case was not one fit for acquittal in terms of the provision contained in Section 232 of the Code, the accused were called upon thereafter to enter on their defence. They chose not to adduce any evidence on their side. Thereupon, on a consideration of the evidence on record, the Court of Session held that accused 2 and 3 are not guilty of the charges. It was, however, held that the appellant is guilty of the offences punishable under Sections 302 and 307 IPC. He was consequently convicted for the said offences and sentenced to undergo imprisonment for life and to pay fine for the offence punishable under Section 302 IPC and to undergo imprisonment for five years and pay fine for the offence punishable under Section 307 IPC. The appellant was, however, acquitted of the remaining charges. It is aggrieved by his conviction and sentence that the appellant has come up with this appeal.

The point that falls for consideration is whether the conviction of the appellant and the sentence passed against him, are sustainable in law.

Heard the learned counsel for the appellant as also the learned Public Prosecutor.

Even though the learned counsel for the appellant did not raise any argument challenging the finding rendered by the Court of Session that the case on hand is a case of homicide, it is necessary to ensure that the finding rendered by the Court of Session in this regard is in order, before proceeding to consider the point formulated for decision. PW22 is the doctor who conducted the autopsy on 17.04.2014 and issued Ext.P14 autopsy certificate. PW22 deposed that there were altogether 14 ante-mortem injuries on the body of the deceased at the time of autopsy. Injures 8 and 10 noticed on the body at the time of autopsy were described by PW22 thus:

“8. A gaping incised wound 3.4 x 1.2cm x chest cavity deep, vertical, over the left side of front of chest, its upper end 10cm below the collar bone and 4cm outer to midline. Along the inner border of this injury was an upward and inward directed oblique side cut for 0.5cm. The wound edges were measured again after approximation and measured 3.7cm. The lower end of this injury was sharply cut and the upper end rather sharply cut. On dissection, the pectoral muscles underneath showed an incised cut for their full thickness measuring 2.7cm long. The lower margin of the 3rd rib, the intercostal muscle and the entire 4th rib showed an incised cut measuring 2.7cm long. The anterior edge of the upper lobe of the left lung was found cut for 2.3cm for its full thickness. The anterior layer of the pericardium showed a 2.9cm long incised cut. The main pulmonary arterial trunk was completely cut and transected immediately above the infundibulum of the right ventricle. The anterior wall of the esophagus was incised for its full thickness for 0.4cm. The pericardial sac contained about 50ml of fluid blood. The left pleural cavity contained about 2500ml of clotted and fluid blood. The heart weighed 382gms, left ventricular hypertrophy was present (2.5cm). Subendocardial hemorrhages were seen in the left ventricle. The valves, chambers and coronaries were normal. The wound track commencing from the external wound up to the esophagus measured 9cm, and was directed backwards and inwards.

x x x xx x x x

Incised wound 6cmx2.5x1.3cm, oblique, over the front of right lower abdomen, with a superficial incised tailing for 13cm in an upward and backward direction from its lower outer end. The upper inner end of this injury also showed tailing, directed towards the injury in a downward and outward direction. This wound did not enter the peritoneal cavity. ”

PW22 in his evidence opined that the death was due to the incised penetrating injury sustained to the chest of the deceased, namely injury 8. It was also opined by PW22 in his evidence that the said injury is one that could be caused using MO10 knife and that the same is sufficient in the ordinary course of nature to cause death. There was no serious challenge in the cross-examination of PW22 to the said evidence given by him. We are, therefore, of the view that the finding rendered by the Court of Session that it is a case of homicide, is in order.

The occurrence was attempted to be proved by the prosecution through the evidence of PWs 1 to 7. Among them, PW1 is Jaimon, who suffered injuries in the occurrence. PWs 2 to 7 are not persons who saw the occurrence, as they reached the scene only after the occurrence. PW1 deposed that he had been to Arattupuzha with his friend Ahad on the date of occurrence for purchasing a mobile phone for Ahad; that while coming back, the appellant called him over telephone and required him to come near the culvert and that he met the appellant accordingly at the said place at about 6.30 p.m. It was deposed by PW1 that while they were about to talk, the deceased also came there after work in his bicycle; that while PW1 was talking to the deceased, the appellant intervened and asked the deceased who caused hurt to him at the time of festival and that the deceased then told the appellant that it was his father, namely the second accused who caused hurt to the deceased. It was deposed by PW1 that he then walked with the appellant for some distance and stated to him that this was a matter which is over and that they can talk about the same later; that the appellant then asked PW1 the reason for beating the uncle of the appellant, to which PW1 replied that it was since the uncle of the appellant who had caught hold of the face of the mother of PW1 that PW1 beat the uncle of the appellant. It was deposed by PW1 that the appellant then beat him on the left side of his forehead and PW1 beat the appellant back with his helmet; that the appellant then fisted on his head and PW1 beat the appellant back again using his helmet; that when the deceased approached them watching the physical altercation after placing his bicycle on the side of the road, the appellant beat the deceased on his face and when PW1 attempted to hit the appellant using his helmet again, the third accused snatched the helmet from PW1 and threw it away. It was deposed by PW1 that the third accused then caught hold of him to restrict his movement and the appellant then took out a knife from his waist and stabbed on the left side of the hip of PW1; that the parents of the appellant also came to the scene by the time and thereupon, the appellant inflicted a stab injury on the left thigh of PW1 as well. It was deposed by PW1 that when he questioned the appellant for having come to that place with a knife, the appellant replied that he brought the knife deliberately and inflicted a stab injury on his left hand also, below the shoulder. It was deposed by PW1 that when the deceased approached him then, the second accused caught hold of the deceased and the appellant then inflicted a stab injury on the abdomen of the deceased as well; that the deceased fell on the road then on account of the impact of the injury and when the deceased fell on the road, the second accused sat on the chest of the deceased and fisted on his forehead. It was deposed by PW1 that when he moved towards his father thereupon, the appellant stabbed PW1 on his left hand repeatedly and when appellant caught hold of the knife, the appellant pulled back the knife and consequently appellant suffered an injury on his finger. It was deposed by PW1 that while the appellant pulled out the knife held by him, an injury was caused on the hand of the mother of the appellant as well. It was deposed by PW1 that when he sat down then owing to pain, he saw the appellant sitting on the abdomen of the deceased after pushing aside the second accused who was sitting on his body, and inflicted a stab injury on the chest of the deceased also. It was also deposed by PW1 that thereupon, the third accused fisted on the back of the head of PW1 and when he fell down on account of the hit, the appellant inflicted a stab injury on his back as well. It was deposed that the appellant and others fled from the scene immediately thereupon. It was also deposed by PW1 that about a year ago, the deceased and the second accused consumed toddy together and after about a year, there was a fight between them over the price paid for the toddy and it is on account of the said reason that the appellant and others caused hurt to PW1 and committed murder of the deceased. PW1 affirmed that it was he who gave Ext.P1 statement to the police and identified MO10 as the knife used by the appellant to inflict stab injuries on him as also on the deceased.

PW2 is the wife of the deceased and the mother of PW1. PW2 deposed that at about 6.45 p.m. on the date of occurrence, when she went to the road near her house on hearing a noise from there, she saw her husband as also PW1 lying on the western side of the culvert and the appellant standing in between them with a blood stained knife. It was also deposed by PW2 that the second and third accused, the mother of the appellant as also Ahad, a friend of PW1, with whom PW1 went to Arattupuzha, were also present there. It was further deposed by PW2 that after sometime, the deceased and PW1 were taken in the vehicle belonging to one Shaji to the hospital by Ahad and Kannan. PW2 also deposed that in the year 2013, the deceased and the second accused consumed toddy together and sometime during 2014, there was a fight between them and others over the price paid for the toddy in her presence and in the course of the fight, the elder brother of the second accused caught hold of the face of PW2 and PW1 then beat him. It was deposed by PW2 that it is on account of the said reason that the appellant and others caused hurt to PW1 and committed murder of the deceased.

PW3 is the mother of Ahad. PW3 deposed that at about 7 p.m. on the date of occurrence, Ahad came to the house and took her mobile phone to call a vehicle to take PW1 and the deceased to the hospital. It was deposed by PW3 that she was told then by Ahad that it was the first and second accused who inflicted injuries on the deceased and PW1. PW3 also deposed that she too rushed to the scene then and at the scene, she saw the deceased lying on the road with injuries. It was also deposed by PW3 that after sometime, PW1 and the deceased were taken by Ahad and Kannan in a vehicle to the hospital. PW4 is a resident in the locality. PW4 deposed that when he was moving through the road near his house in his motorcycle, he saw a lady crying near the culvert and when he stopped his bike at that place, it was noticed that Ahad and his brother seated PW1 to the front seat of a vehicle and the deceased to the back seat of the said vehicle. PW4 deposed that he also got into that vehicle and accompanied the deceased and PW1 to Taluk Hospital, Haripad.

PW5 is a relative of the mother of the appellant. PW5 deposed that at about 6.45 p.m. on the date of occurrence, he heard a hue and cry from the street in front of his house and when he got out out of the house, he saw somebody lying on the street, PW2 standing near that person and the mother of the appellant coming from that place with an injury on her hand. It was also deposed by PW5 that after sometime, he saw the appellant passing through the road with his mother in a bike towards south and the second accused following them. PW6 is a lady who, at the time of occurrence, was residing in a house located on the west of the house of the appellant. PW6 deposed that on the relevant day, she came back home after work between 6.45 p.m. and 7.00 p.m. and while coming back home, she saw PW1 waiting near the culvert. It was also deposed by PW6 that after sometime while she was at home, she received a call from her husband who is abroad and while she was talking to him, she heard the hue and cry of PW2 and when she went to to the place from where she heard the sound, she saw PW1 sitting with blood on his body and the deceased lying on his chest near PW1. PW6 also deposed that by the time she reached the scene, a vehicle came there, in which PW1 and the deceased were taken to the hospital. PW7 is a person with whom the deceased used to work. It was PW7, who, having found the bicycle of the deceased on the side of the road near the culvert after the occurrence, moved the same to the house of the deceased. PW7 only deposed the said fact in his evidence.

PW9 is the mother of the appellant who also suffered, according to the prosecution, an injury in the occurrence. Even though PW9 admitted that she suffered an injury on the relevant day, she did not support the case of the prosecution. According to her, she suffered the injury at home.

PWs 13 and 15 are two independent witnesses examined by the prosecution to prove the motive. PW13 deposed that on 04.04.2014, he went for the festival in Karimarathinkal temple and at the venue of the festival, a fight occurred between the deceased and the second accused. PW15 was the Secretary of the festival committee of the said temple during the year 2014 and he deposed that he heard that there was a fight in the temple premises on 04.04.2014.

PW23 was working as the Junior Consultant at the Taluk Hospital, Haripad on 16.04.2014. PW23 deposed that she examined PW1 at 7.45 p.m. on that day and issued Ext.P18 certificate. PW23 also deposed that she noticed at the time of examination, an incised wound in the left upper arm on the anterior aspect, an incised wound in the upper part of left thigh, an incised wound on the lower part of the chest on the back and a wound on the left thigh in the lower 1/3rd of the thigh. PW23 also deposed that the patient was later referred to the Medical College Hospital as he was bleeding profusely. It was also deposed by PW23 that PW1 was brought to the hospital by one Shaji and the alleged cause of injury was stated to her to be the injuries caused by one Ambili using a knife at 7.00 p.m. The original entry in Ext.P18 as regards the history was “ആരരര കതതയതത  വചച about 7.30 p.m.” It was subsequently corrected as “ആരരര അമതളത എന്നയര  കകകകകകകകകകക കതതയതത വചabout 7.30 7 p.m." PW23 affirmed in the chief-examination itself that the corrections were carried out by her. During cross-examination, PW23 affirmed that it was at 7.45 p.m. that the injured and the deceased were brought to the hospital. As regards the correction carried out in Ext.P18 certificate, it was clarified by PW23 during cross-examination that the time of occurrence was initially informed to her as 7.30 p.m. and later corrected as 7.00 p.m. and it is on account of the said reason that the appropriate entry had to be corrected. PW24 was the doctor who examined PW1 at the Medical College Hospital on 06.05.2014 and issued Ext.P20 certificate. The injuries noted by PW24 on the body of PW1 at the time of examination on 06.05.2014, as deposed by him, are as follows:

“1. Healed sutured incised wound 2.5cm long on the outer aspect of right index finger 4cm behind its tip.

Healed sutured incised wound 2.3x.2cm front of left forearm, transverse 4cm above wrist towards outer aspect.

Healed sutured incised wound 'L' shaped 1.5 and 4.5cm, long limb was transverse and from the front end the short limb coursed obliquely upwards on the back of left forearm the end of long limb was 9cm below elbow.

Healed sutured infected incised wound on the back of left forearm 2cm inner to the end of the long limb in injury no 3 over an area 3x1cm (lower) to 2cm(upper), obliquely upwards.

Healed stapled incised wound 14x0.1 (lower) to 0.4cm (upper) outer aspect of left upper arm 4cm above elbow joint and 3cm inner to midline outer aspect.

Healed abrasion 6x2.5cm back of left upper arm in line with injury no. 5 and 4.5cm above elbow joint.

'V' shaped sutured incised wound 6 and 5.5cm on the front of left upper arm, upper back end 13cm below top of shoulder 5cm in front of midline back.

Healed sutured incised wound 2.5x0.3cm back of left side of abdomen 11cm outer to midline back and 23cm below top of chest.

Healed sutured incised wound 3x0.5cm on the front of left thigh 9cm above knee oblique reaching midline with black scab at the upper third.

Healing 'V' shape wound 3.5x1.5cm on left thigh 5cm below iliac crust at the midline front with infected area on the upper outer limb; subcutaneous deep.”

PW24 opined that all the said injuries are possible with a sharp weapon.

PW31 was the police officer who conducted investigation in the case. PW31 deposed that when the appellant was interrogated on his arrest, he disclosed that he threw away a knife to the southern side of his house and when he was taken to the said place as guided by him, he took out MO10 knife from the place beneath the dry leaves and the same was seized as per Ext.P11 mahazar. Ext.P11(a) is the disclosure of the appellant which led to the recovery of MO10 knife. In cross-examination, PW31 affirmed that the distance between the place of occurrence and Taluk Hospital, Haripad is about 8 kms and under normal circumstances, one would be in a position to reach the said Hospital from the place of occurrence within ten minutes. It was also admitted by PW31 in cross-examination that even though MO10 knife was recovered on 18.04.2014, it was produced before court only on 07.05.2014 and PW31 had kept the same in the meanwhile under his custody. PW32 was the Station House Officer of Kareelakulangara Police Station who registered the crime after recording the First Information Statement from PW1. PW32 affirmed the said fact in his evidence. In cross-examination, PW32 also affirmed that he received information regarding the occurrence while he was on patrol duty, and he immediately rushed to Taluk Hospital, Haripad and enquired with the doctor as also with the relatives of the deceased and it is thereafter that he proceeded to the Medical College Hospital and recorded the statement of PW1.

PW28 was the Assistant Director of the Serology Division of the Forensic Science Laboratory, Thiruvananthapuram. Ext.P23 is the report issued by PW28 and Ext.P23(a) is the report of the DNA Division of the Laboratory issued by Dr.Sreekumar who was holding the charge of the Assistant Director of the DNA Division of the Laboratory then. Items 3 and 4 in Ext.P23 report are the clothes seized from the appellant on 17.04.2014. It is reported in Ext.P23 that the bloodstains contained in the said clothes belonged to group 'AB' which is the blood group of PW9. Item 5 in the report is the knife recovered based on the information furnished by the appellant. It is stated in Ext.P23 that though item 5 contained blood, its origin and group could not be detected. In Ext.P23(a) report also, it is stated that the blood contained in items 3 and 4 belonged to PW9.

The above referred is, in essence, the evidence let in by the prosecution to prove the guilt of the appellant. As noticed, PW1 is a person who suffered serious injuries in the occurrence. PW1 gave an exhaustive narration of the occurrence from the beginning till he was taken to the hospital. The deposition of PW1 is consistent with Ext.P1 First Information Statement given by him. Despite searching cross-examination, nothing was brought out to doubt the veracity of the evidence tendered by PW1 as regards the occurrence. It was argued by the learned counsel for the appellant that inasmuch as the injuries suffered by PW1 were serious in nature, reliance cannot be placed on his evidence, for in such nature of injuries, it is not possible for him to have witnessed the entire occurrence so as to give an exhaustive narration of the same. From the evidence tendered by PW23, the doctor who examined PW1 at the Taluk Hospital, Haripad, it could be seen that despite serious injuries, PW1 was conscious throughout and he was referred to the Medical College for expert management as he was profusely bleeding. It is not recorded in Ext.P18 certificate issued by PW23 that the cause of injury was stated to PW23 by the person who brought PW1 to the hospital. In other words, it can be taken that the cause of injury was stated to PW23 by PW1 himself. In the absence of any material to indicate that PW1 lost his consciousness at the scene of occurrence, we do not find any merit in the argument. As indicated, PWs 2 to 7 are not persons who saw the occurrence. They gave in their evidence only a narration of what they saw after the occurrence. The evidence of PWs 2 to 7 are consistent with the evidence tendered by PW1 and there is no reason to disbelieve the said evidence as well. That apart, the evidence tendered by PW1 is corroborated fully by the opinion evidence given by PWs 23 and 24, the doctors who examined PW1 at the Taluk Hospital, Haripad as also at the Medical College Hospital, Alappuzha. The evidence of PW1 is also corroborated fully by the opinion evidence given by PW22, the doctor who conducted autopsy of the deceased. The evidence tendered by PW1 is further corroborated by the evidence tendered by PW31, the investigating officer that MO10 was recovered based on the information furnished by the appellant and the fact discovered thereby, namely that the appellant knew the place where MO10 was concealed. No doubt, the prosecution could not establish that the bloodstains contained on MO10 was that of the deceased. But according to us, the evidence tendered by PW32 in this regard is not liable to be rejected on the sole ground that the bloodstains were insufficient as it is trite that the case of the prosecution cannot be doubted merely on account of that reason [See Kiriti Pal v. State of W.B., (2015) 11 SCC 178].

Let us now consider the contentions raised by the learned counsel for the appellant which have not hitherto been referred to by us. One of the contentions seriously pressed into service by the learned counsel is that there was suppression of material information in the First Information Statement. It was pointed out by the learned counsel that although PW32 received information regarding the occurrence while he was on patrol duty immediately after the occurrence, he did not register the crime based on the said information. Instead, PW32 proceeded to the Taluk Hospital, Haripad where the injured and deceased were taken after the occurrence, questioned the doctor who examined them as also their relatives who were present at the hospital and thereafter, proceeded to the Medical College Hospital, Alappuzha and it was only after recording the statement of PW1 that the crime was registered at 1 a.m. on the succeeding day. The argument advanced by the learned counsel is that the course adopted by PW32 is grossly illegal and contrary to the dictum in Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, rendered by the Apex Court. No doubt, it has come out in evidence that PW32 received information regarding the occurrence while he was on patrol duty, and on receiving the said information, he proceeded to the Taluk Hospital, Haripad, questioned the doctor who examined the deceased and the injured as also their relatives who were present there and then proceeded to the Medical College Hospital, Alappuzha, and the crime was registered only after recording the statement of PW1. It has been held by the Apex Court in Lalita Kumari that if the information received by the police discloses the commission of a cognizable offence, except in situations/cases, where it has been held in Lalita Kumari that it is permissible to have a preliminary enquiry, it is mandatory to register the FIR, and the registration cannot be delayed in the pretext of a preliminary enquiry. But, it has to be noted that an officer in charge of a police station is not obliged to register an FIR immediately on receiving obscure information about the commission of a cognizable offence. An officer in charge of a police station is certainly entitled to collect authentic information about the occurrence, if available, so as to satisfy himself that a cognizable offence has been committed, warranting investigation thereto before registering the crime. There cannot be any hard and fast rule as to the cases where such additional information is required before registering the crime. It depends on the facts and circumstances of each case. Reverting to the facts, it has to be noted that there is nothing on record to infer the nature of information received by PW32 while he was on patrol duty. What was deposed by PW32 was only that he received information about the occurrence. We do not have any material to take a decision as to whether the information received by PW32 was sufficient to register a case. Similarly, there is nothing on record to indicate the nature of information received by PW32 from the doctor at Taluk Hospital, Haripad who examined the deceased as also from the relatives of the deceased and whether the same was sufficient to register a case. The course adopted by PW32, in the circumstances, is in order and Ext.P1 First Information Statement does not suffer from any infirmity.

It was argued by the learned counsel that the prosecution has not established that the appellant intended to cause the death of the victim, for even going by the prosecution case, the deceased came to the scene of occurrence unexpectedly. No doubt, the facts established would show that the appellant had called only PW1 to the scene and the deceased happened to be there by co-incidence. The evidence let in by the prosecution, however, demonstrates that it was not by accident that the appellant inflicted the fatal stab injury on the deceased. On the other hand, the evidence would demonstrate that the appellant inflicted the fatal stab injury on the deceased with the intention to cause death, or at any rate, with the intention to cause a bodily injury which is sufficient in the ordinary course of nature to cause death. The question whether the appellant intended, initially, to cause the death of the victim thus becomes irrelevant.

Another argument seriously pressed into service by the learned counsel is that it was obligatory on the part of the prosecution to produce the call data records of the mobiles phones held by the appellant as also PW1 and the non-production of the same is fatal to the prosecution case. We do not agree. Inasmuch as the case of the prosecution was that the appellant caused PW1 to come to the scene of occurrence through calls made by him from his mobile to the mobile of PW1, the call data records of the above mobile phones would have certainly corroborated the evidence tendered by PW1 in this regard. But merely for the reason that the said evidence has not been let in by the prosecution, according to us, the case of the prosecution cannot be rejected when there is other satisfactory evidence to corroborate the said case of the prosecution.

It was argued by the learned counsel that the oral evidence tendered by PW1 as to the occurrence is doubtful as it is not consistent with the medical evidence on the material points. We have meticulously perused the evidence let in by PW22, the doctor who conducted autopsy of the body of the deceased, PWs 23 and 24, the doctors who examined and treated PW1 at the Taluk Hospital, Haripad and at the Medical College Hospital, Alappuzha as also the medical certificates issued by PWs 23 and 24 namely Exts.P18 and P20. True, PW23 had not noted, exhaustively in Ext.P18, all the injuries found on the body of PW1 when PW1 was examined immediately after the occurrence. PW23 only recorded the serious injuries found on the body. It appears that PW23 was under the impression that it is not necessary to record all the injuries found on the body of PW1 for, he was contemplating to refer the patient for expert management to the Medical College, Alappuzha. Be that as it may, PW24 gives in Ext.P20 certificate a precise picture of the various injuries sustained by PW1 even though, by the time, most of the incised wounds were sutured and partially healed. On a consideration of the evidence tendered by PWs 22, 23 and 24, we are unable to agree with the argument of the learned counsel that the oral evidence of PW1 is not consistent with the medical evidence in the case.

It was also contended by the learned counsel that the bloodstains contained on MO10 knife was not subjected to DNA examination and in the absence of the same, it cannot be held, conclusively, that MO10 was the weapon that had been used by the assailant. True, Ext.P23 report of the Forensic Science Laboratory would show that though the bloodstain contained on MO10 was subjected to serological examination, the same was not forwarded for DNA examination to the DNA Division of the Laboratory. As noted, PW28 was the Assistant Director of the Serological Division of the Forensic Science Laboratory at the relevant time and she, in her cross-examination explained that the bloodstains on MO10 was insufficient for DNA examination and it was on account of the said reason that the same was not forwarded for DNA examination. There is absolutely no reason to disbelieve the stand taken by PW28 in this regard. Be that as it may, merely for the reason that the bloodstains contained on MO10 was not subjected to DNA examination, it cannot be said, conclusively, that MO10 was not the weapon used for committing the crime. The question aforesaid is one to be considered on the basis of other facts, which are already established in the case.

Another argument advanced by the learned counsel is that the overt acts attributed to the appellant by PW1 in Ext.P1 First Information Statement, are not consistent with the overt acts in respect of which evidence has been let in by PW1. It is trite that the First Information Statement cannot be expected to be an exhaustive narration of the occurrence. What is recorded as first information is only the essence of the occurrence. When large number of persons are involved in an occurrence, both familiar and unfamiliar to the witness, there would naturally be trivial omissions and mistakes. Such omissions and mistakes are likely when the witness is writhing in pain on account of the injuries suffered. In the case on hand, as noted, PW1 sustained several stab injuries in the occurrence and his condition was such that his treatment could not be handled by the Government Hospital to which he was taken first. Even PW32, the Station House Officer who recorded the First Information Statement had to wait, going by his evidence, for the doctors to manage the injuries of PW1 so as to enable PW1 to give the statement. In the circumstances, we do not find any merit in this argument.

Another argument seriously pressed into service by the learned counsel to contend that the occurrence was not as alleged by the prosecution, is that there is serious disparity in the evidence tendered by the witnesses as to the time of occurrence. As noticed, it was stated by PW31, the investigating officer, in his cross-examination that one could reach the Taluk Hospital at Haripad from the scene of occurrence within ten minutes. According to the learned counsel, inasmuch as the injured and the deceased were taken to the said hospital only at 7.45 p.m. as spoken to by PW23, it has to be taken that the occurrence did not take place as alleged by PW1 at 6.45 p.m. We have perused meticulously the evidence on record. It is true that the evidence tendered by PW1 is that the occurrence took place at about 6.45 p.m. It is trite that in regard to the time and duration, the evidence of witnesses is usually based on an estimation made by them. In other words, according to us, unless there is a substantial disparity in regard to the time and duration, the evidence tendered by the witnesses cannot be doubted.

It was argued by the learned counsel that MO10 knife was produced before the court only after 20 days of its recovery, and in the absence of any satisfactory explanation from the investigating officer as to the delay in producing the said material object in court, the same cannot be relied on as a piece of evidence against the appellant. Section 27 of the Indian Evidence Act provides that the fact discovered in consequence of information received from a person accused of any offence, as it relates distinctly to the facts thereby discovered, may be proved. In the case on hand, inasmuch as MO10 was recovered based on the information furnished by the appellant, the fact discovered is that the appellant knew the place where MO10 knife was concealed. But, the only aspect which connects MO10 with the crime is the bloodstains contained therein. The bloodstains on MO10 has been noted at the time of recovery of the weapon itself as evident from Ext.P11 mahazar. As already noticed, the group and origin of the said bloodstain could not be established. As such, according to us, the delay on the part of the investigating officer in producing MO10 knife in court has not caused any prejudice at all to the appellant.

It was vehemently argued by the learned counsel that the prosecution has not examined material witnesses in the case and consequently the trial was vitiated. In support of the said argument, it was pointed out that on the peculiar facts of this case, the prosecution should have certainly examined Ahad, the friend of PW1 who accompanied him to Arattupuzha before the occurrence and who took PW1 to the hospital after the occurrence, especially when his presence in the scene of occurrence was otherwise established. Similarly, it was argued that the prosecution should have certainly examined Shaji, in whose vehicle PW1 and the deceased were taken to Taluk Hospital, Haripad. It is settled law that the prosecution in its wisdom, is free to decide who should be examined to prove a particular fact and the wisdom of the prosecution can be challenged by the accused, only if they are able to raise a complaint about non-examination of a material witness. The complaint about non-examination of a material witness becomes relevant when the testimony of the witnesses examined to prove the fact is found to be uninspiring or not credible [See Mottammal Shaji v. State of Kerala, 2017 (2) KLT 242]. Needless to say, if the evidence let in by the prosecution is inspiring confidence, non-examination of one or more other witnesses becomes irrelevant and does not affect the trial at all.

It was also argued by the learned counsel that the prosecution has miserably failed in establishing the motive for the crime. Placing reliance on Exts.D1 and D2, it was argued by the learned counsel that the motive alleged and proved by the prosecution is not the motive alleged by PW1 and PW2 in Ext.D1, the plaint in a civil suit instituted by them against the appellant and others. According to us, it is unnecessary to consider this argument, for it is settled that if there is convincing and satisfactory evidence to prove the occurrence, the mere fact that the motive for the crime has not been established, is not sufficient to acquit the accused.

Placing reliance on the decision of the Apex Court in Javed Shaukat Ali Qureshi v. State of Gujarat, (2023) 9 SCC 164, it was argued by the learned counsel that since the co-accused were acquitted in the case on hand, the appellant should not have been discriminated. There is no merit in this argument also. Paragraph 15 of the judgment of the Apex Court relied on by the learned counsel reads thus:

When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the criminal court should decide like cases alike, and in such cases, the court cannot make a distinction between the two accused, which will amount to discrimination.

The proposition aforesaid has absolutely no application to the facts of the present case. In the present case, even though evidence has been given against the second and third accused also by PW1, the roles ascribed to the said accused are not same or similar as ascribed to the appellant. Be that as it may, in the case on hand, we have our own doubt as to whether the trial court was justified in acquitting the second and third accused. But, there is no appeal against their acquittal. According to us, in cases where unmerited orders of acquittal are passed in favour of some of the accused, the convicted accused cannot claim the benefit of that illegality by pleading the principle of parity [See Tarun Kumar v. Enforcement Directorate, 2023 SCC OnLine SC 1486].

In the light of the discussion aforesaid, we do not find any merit in the appeal and the same is accordingly, dismissed.