Mathias vs State

Raja Vijayaraghavan V., J.—1. The appellant, who figured as the sole accused in S.C. No. 415 of 2010 on the files of the Additional Sessions Judge, (Ad hoc-II), Ernakulam stood charged for the offence punishable under S. 302 of the Indian Penal Code. He was found guilty and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- with a default clause to undergo simple imprisonment for three months.

The prosecution case, as is revealed from the evidence, runs in the following lines:--

"The deceased Balraj and the accused Mathias, are natives of Tamilnadu. They came to Koothattukkulam, a place in central Kerala, years back and had been living like vagrants. They had no fixed place of abode and used to spend their night outside shops. On 20.01.2010, the deceased and the accused entered into an altercation, that too, in an inebriated stage. The accused in a fit of anger, is alleged to have inflicted two stab injuries on the abdominal area of the deceased. The deceased, after sustaining the stab injury, struggled his way to the Government Hospital, Koothattukulam. He was seen by PW4, Dr. Suraj, to whom the deceased stated that the injuries were inflicted by the appellant. PW1, who was having acquaintance with the deceased and the accused was intimated. He rushed to the hospital and on inquiry was told about the complicity of the accused by the deceased himself. As advised by the Doctor, the deceased was shifted to the Medical College Hospital, Kottayam. The injured was treated in the Medical College Hospital till 24.01.2010 by PW5, Dr. Moni Suseelan who issued Ext. P6 certificate. While undergoing treatment at the Medical College Hospital, the deceased succumbed to his injuries on 24.01.2010."

PW1 Bijumon laid Ext. P1- First information Statement based on which Ext. P1(a) First Information Report was registered by PW6, the Sub Inspector of Police, Koothattukulam.

Investigation was taken over by PW9, Circle Inspector of Police, Piravom. He went to the Medical College Hospital on 25.01.2010 and conducted the inquest over the body of the deceased and prepared Ext. P4 inquest report. On the same day itself, at 2.15 p.m., he visited the scene of crime and prepared Ext. P3 scene mahazar. He later furnished Ext. P9 report incorporating corrections as regards the scene of crime noted in the FIR. The body was sent for autopsy and PW8, the Associate Professor of Forensic Medicine, Medical College Hospital, Kottayam conducted the same and issued Ext. P8 postmortem certificate. At 2.30 p.m., the accused was arrested while he was standing in front of the private bus stand, Koothattukulam. Ext. P10 Arrest memo was prepared. On the basis of Ext. P2(a) disclosure statement given by the accused, MO1 Knife was seized as per Ext. P2 mahazar. The knife was sent for analysis as per Ext. P11 forwarding note and Ext. P12 report of analysis was obtained. Finally, after questioning of witnesses, final report was laid before the jurisdictional Magistrate.

The Court before which the final report was laid, took cognizance of the offence and on finding the offence to be one, which is to be exclusively tried by the Court of Sessions, committed the case to the Court of Sessions, Ernakulam under S. 209 of the Cr.P.C., after complying with the necessary procedures. The case was made over to the Additional Sessions Court, (Ad hoc-II) Ernakulam for trial and disposal.

The latter Court on receipt of records, framed charge under S. 302 of the IPC. When the charge was read over and explained to the accused, he pleaded not guilty and claimed that he be tried. The prosecution examined as many as 9 witnesses as PW1 to PW9 and had Exts.P1 to P12 marked. The knife which was used for the commission of offence was marked as MO1.

On the close of prosecution evidence, the incriminating materials arising out of the prosecution evidence was put to the accused under S. 313 (1)(b) of the Cr.P.C. He denied the same and maintained that he was innocent. On the side of the defence, no evidence was let in.

The learned Trial Court completely placing reliance on the evidence of PW1, the first informant to whom an oral dying declaration was furnished by the deceased and also the evidence of PW4, the Doctor, to whom the injured had furnished the cause of injury came to the conclusion that the prosecution has cogently and convincingly established its case and on its basis, the appellant was convicted as aforementioned. Much sanctity was also given to the recovery of the weapon at the instance of the accused.

The appeal was preferred by the appellant from Jail and as he was not able to engage a counsel of his choice, Adv. Shri. A.K. Alex was appointed as the legal aid counsel to defend the appellant.

We have heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor.

The learned counsel appearing for the appellant criticized the findings of the Court below on various grounds. The learned counsel would submit that the case was registered several days after the incident at the instance of PW1, who claims to be a friend of the deceased. The Court below was persuaded to a great extent by the alleged statements made by the deceased to PW1 and also to PW4, the Doctor who had admitted him at the Koothattukkulam Hospital. The evidence of PW1 reveals that he was intimated by the Sub Inspector of Police Koothattukulam about the incident. If that be the case, according to the learned counsel, serious doubts will ensue with regard to the veracity of the prosecution case, as no explanation is forthcoming as to why the crime was not registered at the earliest opportunity.

Referring to the evidence of PW4, the learned counsel would point out that the Doctor had no consistent case as to how the deceased had come to the hospital. The learned counsel would highlight the assertion by PW4 in his evidence, that the injured was brought to the hospital by the police and he did not come on his own as claimed by the prosecution. This glaring contradiction in the evidence of PW 4, according to the learned counsel, would cut the root of the prosecution case.

The learned counsel also unleashed a vehement attack on the alleged recovery of MO1 weapon at the instance of the accused and submitted that the same is rendered unreliable owing to numerous infirmities. Absence of authorship of concealment in the alleged disclosure statement is projected as one reason to doubt the same.

It is further submitted by the learned counsel that the Court below has wrongly applied the principle of res gestae. According to the learned counsel, the alleged statement made by the deceased was neither contemporaneous nor did it form part of the same transaction and by no stretch of imagination could the principle be applied on facts. Finally, the learned counsel would submit that the statement allegedly made by the deceased to the Doctor and PW1 would never fall within the ambit of S. 32(1) of the Indian Evidence.

Per contra, the learned Public Prosecutor would submit that the evidence let in by the prosecution revealed in unmistakable terms that the deceased, immediately after the incident, had narrated the circumstances of the transactions which resulted in his death to PW1 and PW4. The same was cogent and convincing and there was no reason to doubt their evidence. PW4 had after examining him had ascertained that he was fit and conscious and in the absence of any strong challenge on this vital aspect, the findings of the learned Sessions Judge cannot be said to be erroneous. The learned Public Prosecutor would refer to the evidence and point out that that the deceased is a vagabond and it would be next to impossible for any person other than PW1, who was acquainted with both the deceased and the accused, to come forward and set the law in motion. The delay in lodging the First information Statement and in getting the crime registered was thus explained. The learned public prosecutor contended that the recovery of the weapon of offence at the instance of the accused and the detection of human blood on it would lend further credence to the prosecution case.

To prove the homicidal death of Balraj, the prosecution relies on the evidence of PW8, the Associate Professor of Forensic Medicine, Medical College Hospital, Kottayam and also Ext. P4 inquest report prepared by PW9.

PW8 who conducted the autopsy over the dead body of the deceased noted the following ante mortem injuries:

Injuries (Ante-Mortem)

"1. Sutured surgical laparotomy wound 20cm. long along middle of abdomen with adherent edges, its upper end 6.5cm. below sternum. The abdominal wall was seen sutured in layers. The jejunum showed a sutured wound 2cm. at its antimesentric border 1 meter away from duodenal junction. The coils of intestines were pale. Abdominal cavity contained 100ml. of fluid blood.

Surgical sutured wound 4cm. long, vertical with adherent edges on the left side of front of abdomen 10cm. outer to midline and 1cm. above prominence of hip bone. (Injuries No. 1 & 2 were surgically modified wounds).

Linear abrasion 5cm. long oblique on the right side of back of chest 12cm. outer to midline, 17cm. below top of shoulder.

Abrasion 2x1cm. on the right side of back of chest 4cm. below top of shoulder and 10cm. outer to midline.

Infected wound 6x2 to 3cm. on the front of left leg 15cm. below knee, with peripheral hypopigmented areas.

Healing wound 5x4cm. on outer aspect of right ankle. (The Abrasions were covered with brownish adherent scab)"

PW8 deposed that the death was due to penetrating injuries sustained to abdomen. According to him, injury Nos. 1 and 2 could be caused by MO1 and that those injuries are independently sufficient in the ordinary course of nature to cause death. Ext. P4 inquest coupled with Ext. P8 postmortem certificate and the evidence of PW8 would leave no manner of doubt that the death of Balraj was homicidal.

The next question is whether the prosecution has successfully established the fact that it was the appellant who had inflicted the fatal injuries which resulted in the death of Balraj.

To establish this aspect, the prosecution mainly relies on the evidence of PW1 and PW4.

PW1 would depose that he is a resident of Koothattukulam and he is engaged in the collection of fees at the comfort station. The incident took place on 20.01.2010. He was having acquaintance with Balraj. The accused used to come and sit outside the comfort station. He went to the hospital, hearing the news that the deceased was stabbed by the accused. He had occasion to speak to the deceased and he told him that it was the accused who had inflicted the stab injuries. As suggested by the Doctor attached to the Govt. Hospital, the injured was shifted to the Kottayam Medical College Hospital in an auto rickshaw. On 24.01.2010, the deceased succumbed to the injuries sustained by him. Dispute over fish curry between the accused and the deceased was the reason for the fight according to PW1. He also testified that the deceased was a vagabond and he used to collect scraps from streets. The accused used to work as a casual laborer as well. Both the deceased and the accused were alcoholics according to him. He would further say that he had informed the police and based on Ext. P1 statement furnished by him, Ext. P1(a) FIR was registered.

The evidence let in by PW4, the Doctor attached to the Govt. Hospital, Koothattukalam is the main plank on which the prosecution rests its case. His evidence if believed would lend ample support to the testimony of PW1 as well. He would say that on 20.01.2010, he had examined the deceased Balraj, aged 45 years and issued Ext. P5 certificate, in which, he had noted the following injuries:

"1. Deep penetrating wound over the left-iliac area through that wound omentum was protruded out. There was profusive bleeding.

Small abrasions on the right hand."

In Ext. P5, PW4 has noted that the injured was conscious and oriented. He stated that the injured had disclosed to him that he was stabbed on his abdomen by Mathias with a knife at 9.30 p.m. at the Koothattukulam market. This fact is recorded in Ext. P5 as well.

The learned counsel appearing for the appellant would seriously attempt to expose the deep fissures in the evidence of PW1 and PW4. According to the learned counsel though their evidence would appear to be convincing, a more careful evaluation would reveal that they are incompatible and at variance with the prosecution case.

The main criticism is with regards to the long delay in giving Ext. P1 statement. It is also brought to our attention, the statement of the witness in his deposition that he was informed by the police. We have carefully evaluated the evidence of PW1 and PW4. We have also noticed the special facts and circumstances borne out from the evidence. It is brought out in evidence that the deceased is a vagabond. PW1 is one of those persons who has acquaintance with both the deceased and the accused. The learned prosecutor is right in his submission that it would be far fetched to expect any other person to go and inquire about the well being of the injured. It was PW1 who had shifted the deceased to the Medical College Hospital when it was suggested by PW4. The mere fact that he had approached the police and laid the First information Statement only after hearing the death of the deceased cannot be taken to be a reason to disbelieve PW1. The evidence of PW4 Doctor lends much credence to the evidence of PW1. There is no reason for the Doctor to depose falsehood in Ext. P5 certificate. There is no challenge in cross examination to the assertion by the Doctor that the deceased was in a fit and conscious state and that the cause of injury was informed by the deceased himself.

There is some controversy as to how the deceased had reached the hospital. PW4 would initially say that the deceased was brought to the hospital by the police and that he was not in a fit condition to walk. He would also say that he was saying so from what he discerned from his memory. In cross examination, PW4 would assert that the deceased could have walked even after sustaining the injury noted by him. He would later clarify and state that the deceased had walked up to him and that he was not brought by the police. PW4 was examined in Court in May 2011 to depose in respect of a wound certificate prepared by him on January, 2010. It would be next to impossible for the witness to speak from memory as to how the injured had come to him. We do not think that above aspect of the matter brought out in evidence is of such magnitude so as to disregard the evidence of PW4 in its entirety. The evidence let in by PW1 who had reached the hospital to whom the injured had stated the cause of his death also corroborates the version of PW4.

The learned Sessions Judge relied on the statement made by the deceased to PW1 and PW4 and concluded that the same was admissible under S. 32(1) of the Evidence Act. The learned Counsel would submit that the inconsistencies are numerous and further the deceased had died only after after a few days while undergoing treatment at the Medical College Hospital.

The dying declaration is a statement 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 and it becomes relevant under S. 32(1) of the Indian Evidence Act in a case in which the cause of that person''s death comes into question. It is true that a dying declaration is not a deposition in Court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity.

The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. (See Shudhakar V. State of M.P. [, AIR 2012 SC 3265]).

The Court should be on its guard while testing the reliability of a dying declaration and should closely scrutinize all the relevant circumstances. The 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. In most cases, however, such statements are made orally before death ensues and is reduced to writing by a Magistrate or a Doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, the value or weight which has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. A certification by the Doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. The law is by now settled that if the Court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. The only requirement is that the Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by other persons and where these ingredients are satisfied, the same can be the basis of conviction.

We have minutely scrutinized the evidence of PW1 and PW4 and we find no reason to doubt their version. No enmity is attributed to the above witnesses and it does not stand to reason as to why they would give a false statement before Court. The various inconsistencies pointed out in their evidence are trivial and will not effect the core of their testimony.

We also cannot agree with the contention of the learned counsel that the statement is not admissible because of the fact that the deceased had succumbed to the injuries while undergoing treatment. For a statement to attract S. 32(1) of the Evidence Act, it is neither necessary that the death should have a nexus in terms of fixed time with the statement nor that the victim who made the statement should essentially be in apprehension of immediate death. All that is required is that the said statement should relate to the circumstances surrounding the event which ultimately led to the death and there should be nexus between the circumstances stated by the victim and his death.

The next item of evidence relied on by the learned Sessions Judge to fix the complicity of the accused is the recovery of MO1 knife at his instance. The accused was arrested at 2.30 pm on 25.1.2010. On the strength of the disclosure statement furnished by him MO1 knife was recovered. The prosecution examined PW2, an independent witness to prove the recovery. The main criticism leveled by the learned counsel is that Ext. P2 statement does not reveal the authorship of concealment. The learned Sessions Judge has repelled the said contention relying on a Full Bench decision of this Court in Ajayan V. State of Kerala [, 2011 (1) KLT 8 (FB)], and rightly so. The prosecution also relies on Ext. P12, the report of analysis, which revealed that MO1 knife contained blood. PW8 the Doctor who conducted the postmortem has deposed that the injuries sustained by the deceased could be caused by MO1.

After having undertaken a complete and comprehensive appreciation of the vital features of the case and the entire evidence on record, with reference to the broad and reasonable probabilities of the case, we are of the view that the trial Court has rightly recorded the order of conviction and sentence for the offence charged. We do not feel that the conviction and sentence awarded by the learned Sessions Judge call for any interference by this Court in exercise of appellate powers. We find ourselves in complete agreement with the findings and the ultimate conclusion and resultant order of conviction passed by the learned Sessions Judge and we are of the view that no other view, except the one as arrived at by the trial Court, is possible in the instant case. There is absolutely no reason or justifiable ground to interfere in the judgment, conviction and sentence.

Accordingly, the appeal is dismissed. The conviction and sentence are confirmed. The appellants shall be entitled to set off as provided under S. 428 of the Code of Criminal Procedure for the period they have been in custody in this case, subject to the orders passed by the authority under S. 432/433 of the Code of Criminal Procedure.