Kerala High Court
Babu vs State Of Kerala on 28 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
MONDAY, THE 28 DAY OF JULY 2025 / 6TH SRAVANA, 1947
CRL.A NO. 1414 OF 2019
CRIME NO.284/2014 OF Sasthamcotta Police Station, Kollam
AGAINST THE JUDGMENT DATED IN SC NO.963 OF 2017 OF ADDITIONAL
SESSIONS COURT - VI, KOLLAM ARISING OUT OF THE JUDGMENT IN CP NO.22 OF 2016
OF JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMCOTTA
APPELLANT/1st ACCUSED:
BABU, AGED 45 YEARS, S/O.BHASKARAN,
AJI BHAVANAM, PALLICKAL MURI,
PALLICKAL VILLAGE, ADOOR,
PATHANAMTHITTA PIN-690504.
BY ADVS.
SRI.K.SIJU
SHRI.S.ABHILASH
SMT.S.REKHA KUMARI
SMT.S.SEETHA
SMT.ANJANA KANNATH
RESPONDENTS/STATE:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-31.
2 THE STATION HOUSE OFFICER,
SOORANADU POLICE STATION,
KOLLAM DISTRICT, PIN-690522.
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BY ADV RENJITH T R, SR. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2025, THE
COURT ON 28.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
K. V. Jayakumar, J.
This Criminal Appeal is preferred by the accused No.1 in S.C. No.963/2017 on the files of the Additional District and Sessions Court-VI, Kollam, dated 30.10.2019. The appellant herein, along with three other accused, stood trial before the Sessions Court for the offences punishable under Sections 447, 302, 201, and 34 of the IPC. The learned Sessions Judge found the appellant guilty for the offences punishable under Sections 447 and 302 IPC. However, the trial court acquitted accused Nos. 2 and 3 of all the charges. Accused No.4 (Sadasivan) died at the crime stage itself. The trial court acquitted the appellant/accused No.1 for the offence punishable under Section 201 of the Indian Penal Code. 2. The learned Sessions Judge sentenced the appellant to undergo imprisonment for life and to pay a fine of Rs. 10,000/-for the offence punishable under section 302 of the IPC. He was also sentenced to undergo simple imprisonment for three months for the offence punishable under Section 447 of the IPC.
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3. Impugning the judgment, the appellant preferred this criminal appeal
under Section 374(2) of the Cr.PC.
Prosecution Case:
4. Accused No. 2, Bindhu, is the wife of the accused No.1, Babu
(appellant). Accused Nos. 3 and 4 are the mother and father of accused No.2, Bindhu, respectively. The deceased Lalitha is the sister of Sadasivan, accused No.4. The prosecution alleges that the relationship between the deceased Lalitha and her brother Sadasivan was strained due to a property dispute. Their ancestral property remained undivided, and no partition was effected. 5. The prosecution alleges that, on the fateful day on 21.02.2014, accused Nos. 2 and 3 trespassed into the property of the deceased Lalitha situated at Mukalumthara and picked up a quarrel. Lalitha restrained accused Nos. 2 and 3 from passing through her property. In the meantime, appellant also trespassed into the property of the deceased with a spade and in furtherance of the common intention of all the accused, at about 12 noon, appellant inflicted cut injuries on Lalitha's head with MO-1, spade, causing fracture to her skull, and she fell down. Thereafter, appellant hit Lalitha on her chest with the spade handle.
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6. The deceased Lalitha was taken to the Taluk Hospital, Adoor, by her
son, Liju (PW3), accused No.4, and PW2 (Ravi). Since the injuries caused to the deceased were serious, she was referred to the Medical College, Kottayam, for better treatment. The deceased succumbed to the injuries on 04.03.2014, while undergoing treatment at Medical College Hospital, Kottayam. 7. The FIS was lodged by PW3 (Liju), son of the deceased on 23.02.2014 at about 3.00 pm. On the basis of the information, PW13 registered Ext.P7 FIR and prepared Ext.P8 scene mahazar. PW15 (Mohandas), the Circle Inspector of Police, Sasthamkotta, took up the investigation on 24.02.2014. He arrested accused Nos. 1 and 4 on that day itself and recorded the confession statement of accused No.1(Babu). On the basis of the disclosure statement made by the appellant, he recovered MO1 spade (കുന്താലി) from the firewood shed situated on the eastern side of the house of Sudharmani. Ext.P2(a) is the relevant portion of the disclosure statement.
8. PW16, the Circle Inspector of Police, took up the investigation on 24.02.2014 and prepared Ext.P6 Inquest Report in the presence of the witnesses on 04.03.2014 from the Medical College Hospital, Kottayam. He filed Ext.P14 report Crl.Appeal No. 1414/2019 2025:KER:54897 6 incorporating Section 302 IPC. After completing the investigation final report was laid before court.
9. PW16 arrested accused Nos. 2 and 3 in the presence of a woman police constable. He questioned PW7 (Dr. Mahadevan), who treated the deceased at the Taluk Hospital, Adoor, and obtained Ext.P3, Treatment Certificate, and also questioned PW8 (Dr. Rajeev), the Associate Professor of Forensic Department at Medical College Hospital, Kottayam who conducted the autopsy of the deceased and issued Ext.P4, Postmortem Certificate.
10. After completing the preliminary steps, the case was committed to the Court of Sessions. The Sessions Court, Kollam, made over the case to the Additional District and Sessions Court-VI for trial and disposal. Accused No.4 died during the committal stage, and the charge against him stands abated. The proceedings before the trial Court 11. Accused Nos. 1 to 3 appeared before the trial court. The learned Sessions Judge, after hearing both sides, framed charge under Sections 447, 302, and 201 r/w 34 of the IPC. The charge was read over and explained to the Crl.Appeal No. 1414/2019 2025:KER:54897 7 accused. They pleaded not guilty and claimed to be tried. 12. Thereafter, the prosecution examined PWs. 1 to 17 and marked Exts.P1 to P20. MO1-spade was also identified and marked. After the close of the prosecution evidence, the accused were examined under Section 313(1)(b) of the Cr.PC. They denied the incriminating circumstances put to them and pleaded innocence. No defence evidence was adduced. The learned Sessions Judge, after a full-fledged trial, found the appellant guilty and accordingly convicted and sentenced him as aforesaid. The learned Sessions Judge, however, acquitted accused Nos. 2 and 3 of all the charges.
The submissions of the learned counsel for the appellant 13. Sri. Siju K., the learned counsel for the appellant, submitted that the trial court convicted and sentenced the appellant without proper appreciation of the evidence. There was an unexplained delay of two days in lodging the first information statement, which is fatal to the prosecution story. The trial court erred in appreciating the evidence of PW3 (Liju) in the correct perspective. The version of PW3 (Liju) that the deceased told him that appellant (Babu) inflicted injuries with a spade, would not come within the purview of Sections 6 and 32 of the Crl.Appeal No. 1414/2019 2025:KER:54897 8 Indian Evidence Act.
14. The learned counsel further pointed out that there is no direct evidence relating to the incident. The only eye-witness, PW14 (Ponnamma), turned hostile to the prosecution. The conviction, based on the dying declaration of Lalitha to PW3 (Liju), without any corroboration, cannot be sustained. Placing reliance on the judgment in Ebi @ Philip Ninan v. State of Kerala1, the counsel for the appellant submitted that the prosecution has to prove the fit mental state of mind of the declarant at the time of making the dying declaration. The chain of circumstantial evidence in this case is incomplete and broken. It is further submitted that the trial court ought not to have convicted the appellant based on the interested testimony of PWs. 1 to 4 and 11. The recovery of MO1-spade is also not admissible in evidence. It is further submitted that the prosecution has failed to establish the motive for the alleged offence. 15. Relying on the dictum laid down in Balachandran Pillai v. State of Kerala2, the counsel argued that the non-furnishing of some of the previous statements or part of the statements would vitiate the trial.
1 2024 (3) KHC 327 2 2005 KHC 284 Crl.Appeal No. 1414/2019 2025:KER:54897 9
The submissions of the learned Public Prosecutor 16. Sri Ranjith T.R., learned Public Prosecutor, submits that the prosecution has succeeded in proving the charge against the appellant beyond a reasonable doubt. The evidence of PW3 as to the cause of death is relevant under Section 6 (res gestae) and Section 32 (dying declaration) of the Indian Evidence Act. There is no rule of law or prudence that a dying declaration requires corroboration. The trial court appreciated the evidence in its correct perspective and arrived at a proper conclusion. No interference from this court, whatsoever, is warranted in this matter.
The compendium of the prosecution case 17. PW1 (Geetha) is a neighbour of the deceased. She said that, on 21.02.2014 at about 12 noon, PW4 (Pradeepkumar) came to her house and told her that Lalitha was hacked and lying in her property. She rushed to the scene of the occurrence, wherein she found the deceased lying in a pool of blood. Accused No.2 (Bindhu) and Accused No.3 (Sarojini) were standing nearby. She identified accused Nos. 2 and 3.
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18. After a short while, PW3 (Liju), the son of the deceased, arrived at
the scene of the occurrence. The deceased asked him to bring some water. Accordingly, PW3 brought water and sprinkled it on her face. She opened her eyes and drank a little. The deceased then said something to PW3, but it was not audible. In the meantime, PW2 (Ravi) and Accused No. 4 (Sadasivan) also reached the scene. The deceased was taken to the hospital by accused No. 4, along with PW3 and PW2. PW1 asked accused Nos. 2 and 3 what had happened, but they did not respond.
19. Later, PW1 came to know that the deceased, Lalitha, had succumbed to the injuries at Kottayam Medical College. According to PW1, appellant (Babu) had inflicted the injuries on Lalitha using a spade. She identified the appellant in the dock. During cross-examination, PW1 stated that Lalitha opened her eyes when her son gave her water, but did not do so when PW1 attempted to give her water. PW1 further stated that she could not understand what Lalitha said to her son. 20. PW2, Ravi, and PW4, Pradeep Kumar, reached the scene of occurrence immediately after the incident. Upon arrival, they saw the deceased Crl.Appeal No. 1414/2019 2025:KER:54897 11 lying in a pool of blood with head injuries. PW2 further testified that PW3, Liju, arrived at the scene shortly thereafter. When he sprayed water on the face of the deceased, she told her son that Babu had hacked her on the head with a spade. Thereafter, he, along with PW3 and accused No.4 (Sadasivan), took the deceased to the hospital in an auto rickshaw to Taluk Hospital Adoor. From the Taluk Hospital, Adoor, she was referred to the Medical College Hospital, Kottayam. PW2 further stated that, while the injured was taken to the Medical College Hospital, Kottayam in an ambulance, the accused No.4 (Sadasivan) told PW3 (Liju) not to divulge that appellant (Babu) hacked his mother with a spade and asked him to say that the spade fell on her head while hitting on the branch of a tree. In cross-examination, PW2 stated that the deceased, Lalitha, said something to her son, but he could not hear it clearly.
21. PW4 (Pradeep Kumar) deposed that upon receiving information from PW14 (Ponnamma) that Lalitha had been hacked with a spade, he rushed to the scene of occurrence, wherein he saw the injured Lalitha lying in a pool of blood in a supine position, on her property. She was later taken to the hospital in an auto-rickshaw. According to PW4, the motive behind the incident was enmity between the accused and Lalitha, arising out of a property dispute. He further Crl.Appeal No. 1414/2019 2025:KER:54897 12 stated that when he saw the injured Lalitha, she was in a condition to speak. 22. PW5 (Sunil Kumar) was examined to prove that there was a property dispute between the deceased Lalitha and her brothers. PW5 was the office bearer of SNDP, Anayadi Branch. The deceased was a member of the Anayadi branch of SNDP. He testified that the brother of the deceased had not been effectively partitioned from their ancestral property. The deceased had filed a complaint at the SNDP branch office, alleging that her brothers were denying her rightful share in the property.
23. The said complaint was given one year prior to the incident. On receipt of the complaint, PW5 and some other office bearers met accused No.4 (Sadasivan). But the issue was not resolved since accused No.4 did not take a firm stand. PW5 categorically stated that Lalitha and Sadasivan were inimical terms in connection with the property dispute.
24. PW6 (Akhilesh) is the witness to Ext.P2 recovery mahazar. He admitted his signature in Ext.P2. He says that he could identify the spade. But he further stated that he was not aware of the contents of Ext.P2. He made it clear that he put his signature on the recovery of the weapon for the offence.
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25. PW7 (Dr. Mahadevan) is the doctor who treated the deceased in the
Medical College Hospital, Kottayam. He issued Ext.P3 treatment certificate on 10.03.2014 and noted the following injuries in Ext.P3;
1.Frontal bone fracture
2.Left frontal extradural haemorrhage
3.right fronto temporo parietal subdural haematoma
4.Diffuse brain injury.
26. According to PW7, the patient was admitted with an alleged history of trauma to the head with an axe. He testified that despite the medical treatment, he could not save the life of Lalitha.
27. PW8 (Dr. Rajeev) is the Associate Professor, Forensic Department, who conducted the autopsy of the deceased and issued Ext.P4 postmortem certificate. He has noted the following three ante-mortem injuries;
1. A stapled lacerated wound, 'C' shaped, 13 cm long on the right side top of head 2 cm outer to midline and 5 cm above the root of nose. Scalp around it showed contusion over an area 18 x 16 x0.5 cm. Vault of skull showed depressed fracture fragmentation involving the Crl.Appeal No. 1414/2019 2025:KER:54897 14 right frontal and parietal bones. Base of skull was fractured Involving the right side of middle cranial fossa. Brain showed extradural haematoma 11 x 10 x0.5 cm, on the right fronto-temporo-parietal region and 6 x 4 cm on the left temporal region. There was bilateral thin film of subdural and subarachnoid haemorrhage.
2. Abraded contusion 7 x 5 cm on the middle of chest 5 cm below the suprasternal notch.
3. Abrasion 10 x 7 cm on the upper outer quadrant of right buttocks.
28. He opined that injury No.1 is sufficient, in the ordinary course of nature, to cause death. He would further say that injury Nos. 1 and 2 could be caused by a heavy blunt object like MO1.
29. PW9 (Dr. Bindu Samuel) was the Casualty Medical Officer at the Government Hospital, Adoor. She examined the deceased, Lalitha, on 21.02.2014 and issued Ext.P5 wound certificate. According to PW9, the history given by the bystander was that the injury resulted from the fall of a spade from a height ("കുന്താലി മുകളിൽ നിന്നും വീണതിൽ വെച്ച്"). The patient was referred to a higher centre.
30. PW10 (Gopika G.R.) is the Scientific Assistant in D.C.R.B., Kollam City. She collected the samples of blood stains, packed, sealed, and handed them over to the Investigating Officer for forensic examination.
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31. PW11, Raveendran, is another witness who reached the place of occurrence immediately after the incident. He testified that, while he was sitting in the house of Sudharmini (CW5), PW4 (Pradeepkumar), PW14 (Ponnamma) approached them and told them that "Babu hacked Lalitha". The incident took place in the property of the deceased. He rushed to the place of occurrence along with PW4. When he reached the spot, he saw the appellant, Babu, coming with a spade. He would further say that when PW3 sprayed water on the face of Lalitha, she opened her eyes and said something to him. At that time, PW2 (Geetha) asked Liju what the injured had told him. PW3 replied that Babu hacked Lalitha with a spade. In his evidence, he stated that often there were some quarrels between accused No.4 (Sadasivan) and the deceased in connection with their property dispute.
32. PW12 (Mohan Kumar) is the witness to Ext.P6 inquest report. PW14 (Ponnamma) is the sole eyewitness to the alleged crime. At the time of giving evidence, she was aged 78 years. She did not fully support the prosecution. She testified that the deceased Lalitha was her neighbour. When a specific question was asked whether she saw the incident, she replied that she saw the incident. But Crl.Appeal No. 1414/2019 2025:KER:54897 16 she forgot who beat the deceased. When she was recalled and re-examined on 19.06.2019, she said that the deceased was beaten by the appellant (Babu) with a spade. She identified the appellant in the dock. She is not sure whether the weapon of offence was MO1 spade. She was declared hostile. Later, during the cross-examination, she reiterated that she did not remember what had happened on that day. PW17 is the Village Officer who prepared Ext.P18 scene plan. The cause of death - whether homicidal
33. The learned Sessions Judge, after a detailed evaluation of evidence, found that the death of Lalitha was homicidal. PW3 (Liju) testified that on 21.02.2014 when he came back home, his mother Lalitha was lying in their property with a head injury. PWs 1, 2, 4, and 11 came to the scene of occurrence immediately after the incident. They had also seen the deceased lying in a pool of blood with injuries on her head. PW8 (Dr.Rajeev), who conducted the autopsy has noted three injuries on the body of the deceased. PW8 (Dr.Rajeev) opined that injury No.1 is sufficient to cause death in the ordinary course. There is overwhelming evidence in this matter to infer that the cause of death is homicidal.
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Analysis of evidence
34. Now, we shall proceed to evaluate the evidence of the material
witnesses in the light of the arguments advanced by the learned counsel for the appellant. The material witnesses in this case are PWs 1 to 5, 8, and 11. The entire prosecution story revolved around the evidence of PW3 (Liju), the son of the deceased. The trial court believed his version that when he sprayed water on the face of his mother, she opened her eyes and told him that "Babu hacked her with a spade". The crucial question involved in this appeal is whether the said statement is a res gestae under Section 6 or a dying declaration under Section 32 of the Indian Evidence Act. The learned Sessions Judge held that this statement is relevant both as res gestae and as a dying declaration. 35. The learned counsel for the appellant submitted that the statement of the deceased immediately after the incident was not relevant under Section 6 of the Indian Evidence Act, since it does not form part of the same transaction. Further, it is not relevant under Section 32 of the Indian Evidence Act as a dying declaration, since no evidence is forthcoming as to the mental condition of the Crl.Appeal No. 1414/2019 2025:KER:54897 18 declarant: whether she was conscious and she was able to speak. 36. For further discussion, it will be useful to extract Sections 6 and 32 of the Indian Evidence Act.
"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.
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant Statements, written or verbal, or relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases (1) When it relates to cause of death. - When the statement is 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.Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
37. At this juncture, it would be apposite to refer to the law laid down by Crl.Appeal No. 1414/2019 2025:KER:54897 19 the Apex Court with regard to Section 32(1) and Section 6 of the Indian Evidence Act.
38. In Khushal Rao v. State of Bombay3, the Hon'ble Apex Court laid down the following principles as to the circumstances under which a dying declaration may be accepted without corroboration. Paragraph 16 of Khushal Rao's case (supra) reads as under :
"16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, 3 1957 SCC OnLine SC 20 Crl.Appeal No. 1414/2019 2025:KER:54897 20 whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
39. In Naeem v. State of U.P.,4, the Hon'ble Apex Court, referring to Atbir v. Government of NCT of Delhi[(2010)9 SCC 1] reiterated the factors to be taken into consideration while resting the conviction on the basis of a dying declaration. Paragraph 13 of the Naeem's case (supra ) reads as under :
"13. Undisputedly, in the present case, the conviction is based solely on the dying declaration (Ext. Ka-6). The law with regard to conviction on the sole basis of dying declaration has been considered by this Court in a catena of judgments. After considering the earlier judgments, this Court, in the case of Atbir v. Government of NCT of Delhi1, has laid down certain factors to be taken into consideration while resting the conviction on the basis of dying declaration. It will be apposite to refer to para (22) of the said judgment, which reads thus:
"22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that 4 2024 SCC OnLine SC 237 Crl.Appeal No. 1414/2019 2025:KER:54897 21 it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."
40. In Gentela Vijayavardhan Rao and Another v. State of A.P.5, the Apex Court observed in paragraph 15 of the judgment as under:
"15. The principle of law embodied in S.6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, 5 1996 KHC 965 Crl.Appeal No. 1414/2019 2025:KER:54897 22 is so 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 on 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 atleast 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 gestae. In R. v. Lillyman (1896 (2) QB 167) a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between making the statement and the act of rape. Party Counsel while considering the extent upto which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. Reoinam, (1952 (2) All ER 447), thus :
"The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done and so an item or part of the real evidence and not merely a reported statement."
41. The observation in Gentela Vijayavardhan Rao's case (supra) is Crl.Appeal No. 1414/2019 2025:KER:54897 23 reiterated in Sukhar v. State of U.P.6 and Balu sudham Khalde v. State of Maharashtra7.
42. In the case on hand, the deceased divulged the cause of her death, i.e., Babu (appellant) hacked her, after half an hour of the incident. Such a statement is not a spontaneous one, so as to form part of the same transaction.
Applying the principles laid down in Gentela Vijayavardhan Rao's case (supra), we are clear in our mind that the statement of the deceased would come within the ambit of Section 6 of the Indian Evidence Act. The evidence of PW3 would also indicate that his mother spoke to him about the cause of her death in a fit state of mind. The evidence of PW3 appears to be natural, truthful, and trustworthy.
43. The next contention of the appellant is that there is a delay of two days in lodging the FIS, which is fatal to the prosecution story. The alleged occurrence was on 21.02.2014 at 12 noon. The FIS, in this case, was lodged on 23.02.2014 at about 3.00 p.m. The reason for the delay has been explained by PW3 in Ext.P1.
6 2000 KHC 484 7 2023 KHC 6346 Crl.Appeal No. 1414/2019 2025:KER:54897 24 44. In Ext.P1, first information statement, it is stated by PW3 that his
father deserted him when he was of tender age. There was a property dispute between his family and that of his maternal uncle, accused No.4. It is stated that when PW3 (Liju) came back to his home on 21.02.2014 at about 12.30 p.m., he saw his mother lying in a pool of blood. At that time, accused No.2 (Bindhu) told him that "Your mother is lying here, go and take her". In the meantime, PW4 (Pradeep Kumar) hired an auto rickshaw and they took his mother to the Government Hospital, Adoor, and from there, she was referred to the Medical College Hospital, Kottayam, for better treatment. 45. His maternal uncle (Sadasivan), while taking his mother to the Medical College Hospital, Kottayam, told him not to divulge the actual incident to the doctors and asked him to tell the doctor that a spade fell accidentally on the head of his mother. Otherwise, his mother would not get proper treatment, which would result in her death. Believing the words of his maternal uncle, he spoke to the doctor as instructed by his uncle. It is further stated in the first information statement that accused Nos. 1 to 4 trespassed into their property and inflicted a Crl.Appeal No. 1414/2019 2025:KER:54897 25 cut injury on the head of his mother. The incident was witnessed by some of the neighbours. It is stated that the mother is still in the ICU of the Medical College Hospital, Kottayam, in an unconscious state. The reason for the delay in lodging the first information statement was that he was accompanying his mother in the hospital, and he thought that the intimation would be passed from the hospital to the police. He reiterated the same version in his evidence. 46. At the time of the alleged occurrence, PW3 (Liju) was 15 years old. His father had deserted him at a tender age. On a fine morning, when he returned from school at about 12:30 p.m., he saw his mother being hacked and lying in a pool of blood. The alleged assailants were none other than his maternal uncle, aunt, and cousin. It is pertinent to note that no one took the injured to the hospital until the boy arrived from school, approximately half an hour after the incident. The relatives who are expected to support the boy are the alleged assailants. In such a circumstance, the boy had given priority to save the life of his mother rather than informing the police. Therefore, we are of the firm view that the delay of two days is properly explained by the prosecution.
47. The next contention advanced by the learned counsel for the
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appellant is that the trial court ought to have discarded the interested testimony of PWs. 1 to 4 and 11.
48. In Dalbir Kaur v. State of Punjab8, the Apex Court held that evidence of an interested witness does not suffer from any infirmity as such, but the Courts require, as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care.
49. In Aslam Alias Imran v. State of Madhya Pradesh9, the Hon'ble Apex Court observed that no doubt that merely a witness being an interested witness cannot be a ground for discarding his testimony. However, the evidence of such a witness is required to be scrutinized with greater caution and circumspection.
50. It is trite law that relationship and interestedness, that by itself are insufficient to discard the testimony of witnesses, if it otherwise inspires the confidence of the Court. The testimony of a relative or interested person is to be examined and scrutinized with great caution and circumspection. 51. We have carefully scanned and re-assessed the evidence of PWs 1 to 8 (1976)4 SCC 158 9 2025 KHC 6275 Crl.Appeal No. 1414/2019 2025:KER:54897 27 4 and 11. PW3 would categorically say that, when he sprayed the water on the face of the deceased, she opened her eyes and uttered the words 'Babu hacked her with a spade' (മോനെ, ബാബു കൂന്താലി കൊണ്ട് അടിച്ചു).
52. The evidence of PW3 (Liju) appears to be natural, trustworthy, and credible. Moreover, the evidence of PWs 1, 2, 4, and 11 also gave a consistent version about the incident. All of them reached the place of occurrence immediately after the incident. It is true that they could not understand what the mother whispered to her son about the alleged cause of death. However, they would categorically say that, when the boy sprayed water on the face of his mother, she opened her eyes and uttered some words.
53. On a careful scrutiny and reassessment of evidence, we are unable to accept the argument advanced by the counsel for the appellant that the testimonies of PWs. 1 to 4 and 11 are to be discarded as interested witnesses. 54. The next argument advanced by the learned counsel for the appellant is that the sole eyewitness, PW14 (Ponnamma), turned hostile to the prosecution. The hostility of the sole eye witness is fatal to the prosecution. On a careful analysis of the evidence of PW14, it could be seen that she supported the story of Crl.Appeal No. 1414/2019 2025:KER:54897 28 prosecution to some extent. PW14 (Ponnamma) is a septuagenarian. She would say that the cut injury on the head of Lalitha was inflicted with a spade. She identified the appellant (Babu) in the dock. She would say that she did not remember whether it was MO1 spade, with which the injury was inflicted. 55. In Govindaraju @ Govinda v. State by Sriramapuram P. S. and Another10, the Hon'ble Apex Court observed in paragraph 20 as under:
"20. It is also not always necessary that wherever the witness turned hostile, the prosecution case must fail. Firstly, the part of the statement of such hostile witnesses that supports the case of the prosecution can always be taken into consideration. Secondly, where the sole witness is an eye - witness who can give a graphic account of the events which he had witnessed, with some precision cogently and if such a statement is corroborated by other evidence, documentary or otherwise, then such statement in face of the hostile witness can still be a ground for holding the accused guilty of the crime that was committed. The Court has to act with greater caution and accept such evidence with greater degree of care in order to ensure that justice alone is done. The evidence so considered should unequivocally point towards the guilt of the accused.
56. In Goverdhan v. State of Chhattisgarh11, the Apex Court held that merely because the witnesses turned hostile does not necessarily mean that their evidence has to be thrown out entirely, and what is supportive of the 10 2012 KHC 4174 11 2025 KHC 6042 Crl.Appeal No. 1414/2019 2025:KER:54897 29 prosecution certainly can be used. Paragraphs 76 and 77 of Goverdhan's case (supra) read thus:
" 76. However, it is also to be noted that merely because the witnesses turn hostile does not necessarily mean that their evidence has to be thrown out entirely and what is supportive of the prosecution certainly be used. In Gangadhar Behera v. State of Orissa, 2002 (8) SCC 381, it was observed as following: - "15. To the same effect is the decision in State of Punjab v. Jagir Singh (1974 (3) SCC 277 : 1973 SCC (Cri) 886) and Lehna v. State of Haryana (2002 (3) SCC 76 : 2002 SCC (Cri) 526). Stress was laid by the appellant - accused on the non - acceptance of evidence tendered by some witnesses to contend about desirability to throw out the entire prosecution case. In essence prayer is to apply the principle of falsus in uno, falsus in omnibus (false in one thing, false in everything). This plea is clearly untenable. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co - accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of a particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. The maxim falsus in uno, falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of the rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. State of U.P. (AIR Crl.Appeal No. 1414/2019 2025:KER:54897 30 1957 SC 366 : 1957 CriLJ 550)) Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab (AIR 1956 SC 460 : 1956 CriLJ 827).) The doctrine is a dangerous one especially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P. (1972 (3) SCC 751 : 1972 SCC (Cri) 819) and Ugar Ahir v. State of Bihar (AIR 1965 SC 277 : 1965 (1) CriLJ 256).) An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate the grain from the chaff, truth from falsehood. Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of M.P. (1952 (2) SCC 560 : AIR 1954 SC 15 : 1954 CriLJ 230) and Balaka Singh v. State of Punjab (1975 (4) SCC 511 : 1975 SCC (Cri) 601) .) As observed by this Court in State of Rajasthan v. Kalki (1981 (2) SCC 752 : 1981 SCC (Cri) Crl.Appeal No. 1414/2019 2025:KER:54897 31
593) normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar (2002 (6) SCC 81 : 2002 SCC (Cri) 1220). Accusations have been clearly established against the appellant - accused in the case at hand. The courts below have categorically indicated the distinguishing features in evidence so far as the acquitted and the convicted accused are concerned."
77. To the same effect it was held in Raja v. State of Karnataka, 2016 (10) SCC 506 as follows:
"32. That the evidence of a hostile witness in all eventualities ought not stand effaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu (Himanshu v. State (NCT of Delhi), 2011 (2) SCC 36 : 2011 (1) SCC (Cri) 593) by drawing sustenance of the proposition amongst others from Khujji v. State of M.P. (Khujji v. State of M.P, 1991 (3) SCC 627 : 1991 SCC (Cri) 916) and Koli Lakhmanbhai Chanabhai v. State of Gujarat (Koli Lakhmanbhai Chanabhai v. State of Gujarat, 1999 (8) SCC 624 : 2000 SCC (Cri) 13). It was announced that the evidence of a hostile witness remains admissible and is open for a court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record."
57. The ratio decidendi culled out from the above-referred judgment is Crl.Appeal No. 1414/2019 2025:KER:54897 32 that the evidence of a hostile witness is not to be discarded or rejected in toto. The portion of the hostile witness that supports the prosecution may form the basis for a conviction. Hence, we are of the view that the portion of evidence of PW14 (Ponnamma) that the cut injury was inflicted with a spade and the identification of the appellant in the dock can safely be considered for sustaining the conviction.
58. The learned counsel for the appellant would further urge that the appellant was falsely implicated in this case. The first version about the incident before the doctors of the Government Hospital, Adoor, was that the alleged cut injuries were due to the accidental fall of a spade on the head of the deceased. According to the counsel for the appellant, in order to implicate the appellant in a false case, a subsequent version was introduced that he inflicted cut injuries with a spade. We are unable to agree with the said argument. PW8 (Dr. Rajeev), who conducted the autopsy, rules out the theory of accidental fall of the spade. He would categorically say that injury No.1 could be caused only by a forceful hit of a weapon like MO1 and not by an accidental fall of a spade. PW3 testified that while the injured was taken to the hospital in an ambulance, his uncle, Accused No.4, (Sadasivan) instructed him not to divulge the real incident to the doctor and which would lead to the denial of treatment to the mother. PW3 (Liju), a young boy aged Crl.Appeal No. 1414/2019 2025:KER:54897 33 15 years, believed the instructions of his uncle and obeyed him. Motive
59. The learned counsel for the appellant urged that there is no motive for the commission of the alleged crime. The learned counsel pointed out that the sole eye witness turned hostile to the prosecution. In a case where there is no direct evidence, the motive assumes significance. 60. PW5, Sunil Kumar, was examined to prove the motive. He would say that about one year prior to the incident, the deceased gave a complaint to the Branch Office of SNDP stating that her brother was not willing to give her due share in the ancestral property. Even though he intervened in the matter and talked with accused No.4 (Sadasivan), a settlement could not be arrived at due to the indifferent stand of accused No.4. Moreover, PWs. 2, 3, and 4 also spoke about the property dispute between the deceased and accused No.4 (Sadasivan). The alleged incident took place when accused Nos. 1 to 4 trespassed into the portion of the property which was allegedly in the possession of the deceased. It appears that the enmity in connection with the property dispute has triggered the scuffle, which Crl.Appeal No. 1414/2019 2025:KER:54897 34 ultimately caused the death of Lalitha.
The chain of circumstances 61. The next submission of the learned counsel for the appellant is that the chain of circumstances leading to the alleged commission of the crime are not fully established. If there is a missing link, the appellant is entitled to get the benefit of doubt. A careful evaluation of evidence would indicate the following circumstances leading to the commission of the offence.
1. The appellant had a strong motive to commit the offence. The witnesses 1 to 5 spoke about the enmity in connection with the partition of the co-ownership property.
2. PW14 (Ponnamma) testified that the injury on the head was caused with a spade, though she did not state by whom it was inflicted.
3. PWs 4 and 11 had seen the deceased carrying a spade immediately after the incident.
4. In the dying declaration of the deceased Lalitha, the name of the appellant was divulged as the assailant.
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5. MO1 spade recovered from the firewood shed of Sudharmani contains
human blood in scientific analysis.
6. The evidence of PW8 (Dr.Rajeev) would suggest that the injury No.1
found on the body of the deceased could be caused by a forcible hit by a weapon like MO1 spade.
62. The last, but not the least, submission of the counsel for the appellant is that the recovery of MO1 spade is inadmissible in evidence. PW15, the Circle Inspector of Police, recorded the confession statement of the appellant on 24.02.2014. Thereafter, on the basis of the disclosure statement, MO1 spade was recovered from the firewood shed situated on the eastern side of the house of Sudharmani, as led by the appellant, the MO1 spade was recovered from the said shed, which was placed on the western corner of the shed. Ext.P2(a) is the relevant portion of the disclosure statement. PW6 (Akhilesh) is the witness to the alleged recovery of weapons. He would say that he was not aware of the contents of Ext.P2 recovery mahazar. In Ext.P2(a), the authorship of concealment is not stated. In the absence of cogent evidence, the recovery allegedly effected would not be of much help in proving the prosecution case.
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63. The learned counsel for the appellant pointed out that the conviction
under Section 447 of the Penal Code cannot be sustained, since the property in which the offence was committed is a co-ownership property. Therefore, the case of the alleged trespass is not maintainable.
64. We find merit in the said contention. Since the property is co-ownership, each and every co-owner has a right to every part of the property. Hence, we are of the view that the conviction entered by the trial court under Section 447 of the IPC is liable to be set aside.
Conclusion 65. The upshot of the above discussion is that the prosecution has successfully proved the charge against the appellant beyond a reasonable doubt. The version of PW3 (Liju) is natural, reliable, and trustworthy. The dying declaration of the deceased, Lalitha, to her son is legally admissible and reliable. However, the conviction entered and the sentence imposed by the learned Sessions Judge under Section 447 IPC are hereby set aside. The rest of the findings of the trial court are upheld.
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In the result,
i) Crl. Appeal. No. 1414 of 2019 is allowed in part.
ii) The finding of guilt, conviction, and sentence imposed under Section 447 of the IPC is set aside.
iii) The conviction entered and the sentence imposed under Section 302 of the IPC stand confirmed.
iv)The trial court shall execute the order in the modified manner.
Sd/-
RAJA VIJAYARAGHAVAN V.
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
BR/Sbna