Kerala High Court
Biju B vs State Of Kerala on 5 February, 2025
2025:KER:8584
Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TH
WEDNESDAY, THE 5
DAY OF FEBRUARY 2025 / 16TH MAGHA,
1946
CRL.A NO. 182 OF 2021
AGAINST THE JUDGMENT DATED 24.05.2018 IN SC NO.565 OF 2011 OF
III ADDITIONAL DISTRICT COURT, KOLLAM
APPELLANT/ACCUSED NO.2:
IJU B.
B
AGED 49 YEARS
S/O.BENNACHAN, KARAKOTTU PADINJATTATHIL,
ARINALLOOR MURI, THEVALAKKARA VILLAGE,
(CONVICT NO.2740).
Y ADVS.
B
T.K.RAJESHKUMAR
KUM.APARNA SOMARAJAN
RESPONDENT/COMPLAINANT:
TATE OF KERALA
S
REPRESENTED BY THE INSPECTOR OF POLICE, CHAVARA
THEKKUMBHAGAM POLICE STATION, KOLLAM, THROUGH THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
2025:KER:8584
Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 2
ERNAKULAM-682031.
SRI. RENJITH.T.R., SENIOR PUBLIC PROSECUTOR
THIS
CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
5.02.2025,
0 ALONG
WITH
CRL.A.15/2025, 462/2021, THE
COURT
ON
THE
SAME DAY DELIVERED THE FOLLOWING:
2025:KER:8584
Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TH
WEDNESDAY, THE 5
DAY OF FEBRUARY 2025 / 16TH MAGHA,
1946
CRL.A NO. 15 OF 2025
AGAINST THE JUDGMENT DATED 24.05.2018 IN SC NO.565 OF 2011
OF
III ADDITIONAL DISTRICT COURT, KOLLAM
APPELLANT/ACCUSED NO.1:
HOMAS
T
AGED 44 YEARS
S/O ROBERT MAMMOOTTIL KADAVIL, MANDROTHURUTHU WEST,
KALLADA VILLAGE, KOLLAM DISTRICT, PIN - 691502
BY ADV ANUROOPA JAYADEVAN
RESPONDENT/COMPLAINANT:
TATE OF KERALA
S
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI, PIN - 682031
SRI. RENJITH.T.R., SENIOR PUBLIC PROSECUTOR
THIS
CRIMINAL APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING ON
5.02.2025,
0 ALONG
WITH
CRL.A.182/2021 AND
CONNECTED CASES,
THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:8584
Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TH
WEDNESDAY, THE 5
DAY OF FEBRUARY 2025 / 16TH MAGHA,
1946
CRL.A NO. 462 OF 2021
AGAINST THE JUDGMENT DATED 24.05.2018 IN SC NO.565 OF 2011 OF
DISTRICT COURT & SESSIONS COURT, KOLLAM
APPELLANT/ACCUSED NO.3:
ABU.J
S
AGED 39 YEARS
S/O. JOHNSON, VADAKKEDATHU KIZHAKKATHIL, ARINALLOOR
MURI, THEVALAKKARA VILLAGE, VIA MAMMOTTILKADAVIL,
KOLLAM DISTRICT, PIN-690 524 (CONVICT NO.2741, CENTRAL
PRISON, POOJAPPURA, THIRUVANANTHAPURAM, PIN-695 012).
Y ADVS.
B
M.P.MADHAVANKUTTY
K. REMIYA RAMACHANDRAN
RESPONDENT/COMPLAINANT:
TATE OF KERALA
S
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
2025:KER:8584
Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 5
ERNAKULAM, PIN-682 031.
SRI. RENJITH.T.R., SENIOR PUBLIC PROSECUTOR
THIS
CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
05.02.2025,
ALONG
WITH
CRL.A.182/2021
AND
CONNECTED
CASES,
THE
COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:8584
Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 6
J U D G M E N T
[CRL.A Nos.182/2021, 15/2025, 462/2021]
Raja Vijayaraghavan, J.
The above-captioned appeals are directed against the judgment dated
24.05.2018 passed by the III Additional Sessions Judge in S.C. No. 565 of 2011.
2. Crl.ANo.15of2025hasbeenpreferredbythe1staccused,Crl.ANo.
182 of 2021 has beenpreferredbythe2ndaccusedandCrl.ANo.462of2021has
beenpreferredbythe3rdaccused.Theaccusedwerechargedwiththecommission
of murder of Sri. Anchalose and hence for having committed offences punishable
under Sections 341, 302, 427 r/w. Section 34 of the IPC.
The prosecution case:
3. The1staccused(Thomas)andhisfather(Robert)areallegedlyinthe
bootlegging business. Ajitha (PW1),Francis(PW3)andAnchalose,thedeceasedin
the instant case, are siblings. Anil Kumar (PW2) isthebrother-in-lawofAnchalose.
One Rajani, the cousin sister of Francis, is residing near the house of the 1st
accused. Rajani'shusbandisworkingoverseasandhence,shewasresidingwithher
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 7
children. Francis, being a near relative, used to tend to their affairs. Due to the
inconveniencecausedtoRajanibytherunningofthebootleggingbusinessbythe1st
accused, Francis (PW3) lodged complaints before the police as well as the Excise
authorities. Being aggrieved, he was attacked by Thomas (A1) and his father and
seriousinjurieswereinflicted. ThisledtotheregistrationofCrimeNo.57of2003of
theEastKalladaPoliceStationunderSections324,326and34ofIPCon29.03.2003.
Later,intheyear2005,CrimeNo.222of2005wasregisteredbytheChavaraPolice
Station against Thomas (A1) and one Stanley. Intheyear2006,CrimeNo.267of
2006undersections324,427and34ofIPCwasregisteredagainstBiju(A2)andhis
associateforassaultingFrancis.Thisledtotherelationshipbetweenthetwofamilies,
known to each other for overthreedecades,becomingundulystrained. Anchalose
hadtoshifthisresidencetohiswife'shouseatMundakkaltokeephimselfoutofthe
radar and ensure that he was not harmed by the accused.
4. On the date of the incident, Victoria, the grandmother of PWs 1, 3
and the deceased, was undergoing treatment at the Lokarakshaka Hospital at
Thevalakkara. The relatives of Victoria used to visit her as she was lying on her
deathbed. Anchalosehadalsocometovisithisgrandmother. Heleftthehospitalat
about8.00p.m.onhismotorbike. Theprosecutionallegesthatwhenhereachedin
frontofToddyShopNo.16lyingonthesouthernsideoftheKochupullikaduJunction
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 8
- Kadakathumukku road, the accused, in furtherance of their common intention to
causethedeathofAnchalose,wrongfullyrestrainedhimandthereafterattackedhim
withstumpsoftheAmaltastree(KonnaPathal)onvariouspartsofhisbodycausing
serious injuries.
5. The incident was allegedly witnessed by PW1 whohadcometovisit
Victoriaandwasreturningtoherhouse. Anilkumar(PW2),whowasalsopresentin
the hospital had come out for a smoke and was standing near the Kochupullikadu
Junction. On hearing the cries,herushedtothespotandfoundAnchaloselyingon
the ground with injuries and the accused standing thereholdingsticks.Thebikein
whichAnchalosewastravellingwasfounddroppedonhisbody.Heimmediatelytook
steps to removethebikewhichwaslyingonthebodyofAnchaloseandrushedthe
injured to the Lokarakshaka Hospital. The Doctor, after examining the injured,
declared him dead.
Registration of Crime and Investigation
6. PW2 proceeded to Thekkunbhagum Police Station soon after the
incident and lodged the FI Statement (Ext.P1), to the Sub Inspector of Police,
Chavara Police Station (PW12), on the strength of whichExt.P9FIRwasregistered
underSection302r/w.34oftheIPC.TheinvestigationwastakenoverbyPW13,the
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 9
Inspector of Police, Chavara Police Station. On 04.03.2007, at 8.30 a.m., he
conductedtheinquestoverthedeadbodyandpreparedExt.P3inquestreport. MO4
(shirt), MO5 (Dhothi) and MO6 (chain) found on the body of the deceased were
seizedbytheofficer. Immediately,thebodywashandedoverforautopsywhichwas
conducted by PW7 (Assistant Professor and Dy. Police Surgeon) and issued Ext.P5
postmortem certificate. She noted 35 antemortem injuries on the body of the
deceased. AspointedoutbyPW2,Ext.P2scenemahazarwaspreparedbyPW13in
the presence of witnesses. The stumps allegedly used by accused Nos. 1 and 2
wereseizedfromthesceneofthecrimeinadditiontoMO7(coins),MO8(Samsung
Mobile Phone), MOs 9 to 12 (parts of motorcycle), MO13 (blood-stained soil) and
MO14 (sample soil). Accused Nos. 1 and 2 were arrested on 4.3.2007 as per
Exts.P13 and P16 custody memo. Ext.P18 report was submitted before the court
reporting the name and address of accusedNos.1and2. Asitwasrevealedfrom
the materials that the accused had wrongfully restrained the deceased, Ext.P19
reportincorporatingSection341oftheIPCwasforwardedtocourt.On8.3.2007,the
3rd accused was arrested as per Ext.P21 custody memo. On the basis of the
disclosure made by the 3rd accused, MO3 stick was recovered as per Ext.P22
recoverymahazar. Later,Ext.P24reportwassubmittedon8.3.2007transposingthe
5th accused in the FIR as the 3rd accused. Ext.P25 report was submitted on
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 10
9.3.2007 incorporating Section 427 of the IPC as well. The investigationwasthen
taken over by PW17, the C.I. of Police, Chavara Police Station. He recorded the
statement of witnesses and cametotheconclusionthatStanleyandJoy,whowere
arrayedasaccusedNos.3and4intheFIR,werenotinvolvedinthecommissionof
thecrime. Ext.P29reportwasaccordinglysubmittedon01.08.2007,removingthem
from the array of the accused. He collectedrecordsofcasesinwhichtheaccused
were involved. It was PW18, the C.I. of Police, Chavara, who verified the
investigationandlaidthefinalreportbeforetheJudicialMagistrateoftheFirstClass,
Sasthamcotta.
7. The learned Judicial Magistrate of the First Class, Sasthamcotta,
initiated committal proceedings and after complying with the necessary
formalities,committedthecasetotheCourtofSession. Thecasewasmadeover
to III Additional Sessions Judge, Kollam, after perusing the records and after
hearingtheprosecutionandtheaccused,framedthechargeunderSections341,
302,427r/w.Section34oftheIPCagainsttheaccused. Whenthechargeswere
read over, they pleaded not guilty.
Evidence Tendered:
8. On the side of the prosecution, 18 witnesses were examined as
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 11
PWs 1 to 18 and through them, Exts.P1 to P32 were exhibited and marked.
MOs 1 to 14 were produced and identified. After the close of prosecution
evidence, the incriminating materialsarisingfromtheprosecutionevidencewere
put to the accused under Section 313 of the Cr.P.C. They denied the
circumstances and maintained that they were innocent. The 1st accused stated
thathewasropedinduetopriorenmity. Thedeceasedhadfallendownfromhis
bikewhileundertheinfluenceofalcoholandsufferedinjuries. Accordingtohim,
PW1andPW2areresidingelsewhereandtheywerenotinoraroundthesceneof
the crime, as claimed by them. Accordingtohim,hehasnoenmityeitherwith
PW3 (Francis) or with the deceased. PW2 stated that the deceasedandhimself
areimmediateneighbours. Theyhavebeenclosefriendssincechildhood. Hehas
no enmity towards Anchalose or his family members. The accused No.3 stated
that he was implicated in the case falsely and asserted that he was innocent.
The sentence imposed:
9. The learned Sessions Judge, after evaluating the entire evidence,
came to the conclusion that the accused areguiltyoftheoffenceunderSection
302 r/w. Section 34 of the IPC. They were, however, found not guilty for the
offencespunishableunderSections341and427oftheIPC.Theywereconvicted
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 12
and sentenced to undergo imprisonment for life and to pay a fine of
Rs.1,00,000/- each for the offenceunderSection304r/w.Section34oftheIPC
and in default, to undergo RI for a period of oneyeareach.Thefineamountif
realized, a sum of Rs.2,00,000/- is ordered to be paid to the relatives of the
deceased.
Contentions of the appellants:
10. We have heard the submissions advanced by Smt. Anuroopa
Jayadevan, Sri. Rajesh Kumar T.K, and Sri. M.P Madhavan Kutty, the learned
counsel appearing for the appellants. The arguments were led by
Sri.M.P.MadhavanKutty,andhewasablysupportedandtheargumentsadvanced
by him were supplemented by the other counsel. The contentionsraisedbefore
us to assail the judgment passed by the trial court can be summarised as under:
i) Theallegedincidenthadoccurredafter8:00p.m.on03.03.2007.Theplace
of occurrence is situated about 25 meters to the East of Kochupullikadu
Junction, near Lokarakshaka Hospital. The prosecution has not cited any
independent witnesses to prove the incident. Instead, to arrive at the
finding of guilt, theCourthasreliedontheevidenceofPW1,thesisterof
the deceased, who had no occasion to be at the place on that day. A
2025:KER:8584
Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 13
seriouserrorhasbeencommittedbythelearnedSessionsJudgeinplacing
reliance on the witnesses who are related, partisan and interested.
ii) No reliable evidence was adduced to prove that the grandmother of the
accusedwasadmittedtothehospitalandwasundergoingtreatmentthere.
Without solid proof ofthesaidfact,thelearnedSessionsJudgeoughtnot
to have concluded that the presence of PW1 and PW2 inandaroundthe
scene of the crime was natural.
iii) Though PW2 claims in his evidence that PW1 rushedbacktothehospital
afterwitnessingtheassaultonAnchalose,hehadnosuchcaseatthetime
offurnishingtheFIStatement.Thiswouldthrowseriousdoubtwithregard
totheassertionmadebyPW1thatshehadgonetovisithergrandmother
and that she had witnessed the incident.
iv) In the FIR registered on 03.03.2007, five persons were arrayed as the
accused.However,PW17aftertakingovertheinvestigationon31.07.2007,
filed Ext.P29 report deleting the names of accused Nos. 3 and 4. This
would reveal that the investigation agency had no clue even after four
monthsfromthecommencementoftheinvestigationastowhotheactual
culprits were.
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 14
v) TheversionandsequenceofeventsgivenbyPW1areatvariancewiththe
evidence tendered by PW2. This aspect of the matter will throw serious
doubt as regards the genesis of the prosecution version.
vi) TheprosecutionallegesthataccusedNos.1and2werenursinganimosity
towards the deceased and his family members. However, a perusal of
Ext.D5 Judgment rendered by the Judicial Magistrate of First Class,
Sasthamcotta would reveal that theaccusedwereacquittedofallcharges
byjudgmentdated09.03.2011,astheprimewitnesseswhichincludePW3,
did not support the case of the prosecution. According to the learned
counsel, this would show that the parties were not at loggerheads.
vii)NorelianceoughttohavebeenplacedontherecoveryoftheMOs1to3,
whichaccordingtotheprosecution,wereallegedlyusedbytheaccusedfor
the commission of the crime. It is urged that though in Ext.P2 Scene
Mahazar,oneofthestumpswhichwasrecoveredfromthesceneisshown
to have a length of 70 cm, a perusal of Ext.P8 report of analysis would
revealthatthestumpmeasuredmuchmore.Hence,ithastobeconcluded
that the stumpsallegedlyrecoveredfromthesceneofcrimewerenotthe
weapons used for inflicting the injuries. Furthermore, though MOs 1 to 3
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 15
were sent for analysis, what is stated in Ext.P8 report is that the blood
found therein is insufficient to determine the origin and group.
viii)ThelearnedSessionsJudgehaserredinplacingrelianceontherecoveryof
MO3 weapon from the property ofLambodharanPillai.PW16,thewitness
examined to prove the recovery, had stated before the Court that the
stump was found inside the Police Jeep. It is further submitted that the
recovery was made from an open place accessible to all.
ix) ItisurgedthatforconvictingtheaccusedwiththeaidofSection34ofthe
IPC,credibleevidenceistobeadducedbytheprosecutiontoestablishthat
there was a prior meeting of minds and that they had shared acommon
intention to commit thecrime.Inthecaseonhand,evidenceismiserably
lacking to establish the said fact.
x) Finally,itissubmittedthattheprosecutionhasmiserablyfailedtoestablish
thattheappellantshadinflictedinjuriesonthebodyofAnchaloseandhas
thereby caused his death.
Submissions of the learned Public Prosecutor:
11. In response, it is submitted by the learned Public Prosecutor that
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 16
the prosecution has established its case beyond a reasonable doubt.Itisurged
thatforrecordingtheguiltoftheaccused,itisnotnecessaryfortheprosecution
toprovethecasewithabsoluteormathematicalcertainty.ItisarguedthatPWs1
and 2 were natural witnesses, whosepresenceatthesceneofcrime,cannotbe
disputed.Thecrimewasregisteredwithinabout1½hoursoftheincidentandthe
namesoftheaccusedastheperpetratorsofthecrimefindaplaceintheFIR.The
FIR had reached the Court at 3:45 p.m. on 04.03.2007 and the same would
vouchsafeitscredibilityandauthenticity.MOs1and2stickswereseizedfromthe
placeofoccurrenceitselfandtheanalysisreportrevealedthepresenceofblood.
ReferringtotheobservationsinR.Shajiv.StateofKerala1, itissubmittedthat
the failure of the Serologist todeterminethegroupororiginwillnotinanyway
support the case of thedefence.Ampleevidencewasletintoestablishthatthe
accused were nursing grave animosity towards the deceased and his family
members. It is urged that the learned Sessions Judge has evaluated the entire
facts in its proper perspective and has arrived at the finding of guilt.
12. We have considered the submissions advanced and have gone
through the entirerecords.Wehavealsoperusedthejudgmentrenderedbythe
learned Sessions Judge.
1
[(2013) 14 SCC 266]
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 17
Determination of the cause of death
13. ThefactthatAnchalosediedon03.03.2007isnotdisputedevenby
the defence. The contention is that Anchalose was riding his bike in a grossly
inebriated state and dashed into a culvert, situated on the side of the
Kochupullikattu Junction - Kadakathumukku road, and sustained the injuries. In
order to establish their case, the defence relies on Ext.P31 and the evidence
tendered by DWs 3 and 4. From Ext.P31, it is evident that thesampleofblood
forwarded to theChemicalExaminersLaboratorywasanalysedandareportwas
givenstatingthatitemNo.3,Bloodsample,contained242mgofEthylAlcoholper
100 ml of blood. DW3, a former Joint Chemical Examiner, examined by the
defence,statedthatifapersonisahabitualdrinker,thequantityofEthylAlcohol
foundinhisbodywillnotaffecthimseverely.Hestatedthatforanon-habituated
person,thesituationwouldbedifferent.Whenhewasaskedwhether242mgof
Ethyl Alcohol per 100 ml of blood, may lead a person to a state of stupor, he
stated that no definite opinion could be given. DW4, the Professor of Forensic
Medicine,wasexaminedtobringoutthechangesinaperson,inwhoseblood242
mg ofEthylAlcoholper100mlwasfound.Afterstatingthegeneralinformation,
shestatedthatonecannotgeneralisetheconductofanalcoholic,onthebasisof
theentriesintextbooks.Accordingtoher,therewillbevariationfromindividualto
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 18
individual. It appears that the attempt of the defence was tobringoutthatthe
deceased rode the bike, fell down, and suffered the injuries.
14. PW7 is the Doctor who conducted the postmortem.Shehasnoted
35injuriesonthebodyofthedeceased.Accordingtoher,injuriesNos.11to14,
are sufficient in the ordinary course of nature to cause death. We shall extract
injury Nos. 11 to 14:
11. Laceratedwound8x1.5x0.5cmobliqueontherightsidefrontofhead,
its lower inner end 8 cm above the root of nose in midline.
12. Lacerated wound 2.7x9.5x0.3 cm oblique on the right side: front of
head, its lower outer end 9 cm above eyebrow and 4 cm outer to
midline (Across injury No.11 one cm in from of its back end).
Underneath injuries No.11 and 12 scalp was contused over an area
9x5x1 cm.
13. Contusionofwholeofrightearwith2abrasions2x1cmand1x0.5cm
2 cm apart and one above the otheronthefrontaspectofmiddleof
helix and a lacerated wound2.5x1x0.5cmoverlyingtherightmastoid
processjustsectiontherootofearunderneaththerighttemporaland
parietal bones shown commuted depressed fracture over an area
10x3x0.3cmandfissuredfracture5cmlongextendingfromittoright
side of occipital bone and 18 cm long horizontally to both side of
occipital bone.
14. Laceratedwound7.7x2.1cmontheleftsideofbackofheadvertically
placed its upper end 4 cm outer to and 3 cm above occipital.
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Scalpwascontusedoveranarea24x12x2cmonthetopandwholeof
back of head.
Fracture fragmentation of both sides of anterior cranial fossae and
pituitaryfossae.Afissuredfractureseenextendingfromittoleftmiddle
cranialfossae.Bilateral,subdualandsubarachnoidhaemorrhageswere
seen. Contusions were seen inthetemporalandparietallobes(8x8x1
cm)undersurfaceofrighttemporallobe9x5x1cm.Uppersurfaceright
pareital lobe 3x3x0.5 cm and under surface of both frontal lobes
5x5x0.3 cm. There were flattening of gyri and narrowing of sulci.
15. The otherinjuriesfoundonthebodyarecontusionsandabrasions.
The DoctorstatedthatinjuryNos.11,12and13canbecausedbyusingMOs1
to 3, if they were in their original state, and with sufficient heaviness. She
specifically stated that injuries to the head and chest were likely caused by the
"Pathal" sticks. She statedthatinjuryNo.13alonewassufficienttocausedeath.
ShealsostatedthatinjuryNos.11-14and15-19wereindependentlysufficientto
cause death. When asked by the defence pointedly as to whether the injuries
found on the bodycouldbecausedbyafall,theDoctorrepliedthattheinjuries
were not consistent with a fall or motor vehicle accident, considering the
distribution of injuries on different parts of the body and their nature. She
specifically noted thepresenceofelongatedcontusionswithacentralpallor.She
asserted that she could completely rule out the possibility of sustaining the
injuries in a motor accident. According to her, though blunt force trauma could
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occur in a motor vehicle accident, thespecificpatternandnatureoftheinjuries
on the body Anchalose, including the elongated contusions, led her to rule out
this possibility.Thedefencehasnotbeenabletomakeanydentintheevidence
of the Doctor. In that view of the matter, it can be held with a considerable
amountofcertaintythatAnchlosediedofinjuriesinflictedusingstickslikeMOs1
to 3 in its original state.
Evaluation of the evidence tendered
16. Now we shall deal with the evidence let in by the prosecution to
prove theincidentthattookplaceon3.3.2007. Ajitha(PW1)isthewitnesswho
was projected as an eyewitness by the prosecution. She is the sister of the
deceased Anchalose and Francis (PW3). She stated that the route to Rajani's
housepassesinfrontofthehouseofthe1staccused(Thomas).Theirhousesare
adjacent and the illicit liquor trade conducted at Thomas's house caused
disturbances to the family life of Rajani. Her brother Francis had lodged a
complaintwiththePoliceregardingtheillegalliquortradeatThomas'sresidence.
Since then the accused had been nursing enmity towards Francis over the
complaint and had brutally assaulted him twice at different locations, inflicting
grievous injuries. She spoke about thethreatsagainstthemalemembersofher
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family. According to the witness, she had witnessed the incident leading to the
deathofAnchalose.Itoccurredon03.03.2007,atabout8:00p.m.,onthesideof
the road near the toddy shop, near to theKochupullikkaduJunction.Shestated
that her grandmother, Victoria, was admitted to Lokarakshaka Hospital, Koivila,
andwasundergoingtreatmentthere.Shevisitedhergrandmotheratthehospital
andwasreturninghome.Herbrother,Anchalose,whowasresidingatMundakkal,
Kollam, also had come to visit the grandmother. He reached the hospital on a
motorbikeatabout7:00p.m.,mettheirgrandmother,stayedforawhile,andleft
thehospitalaround8:00p.m.Toreachherhouse,PW1hadtopassbythetoddy
shop near to Kochupullikkadu Junction. She left the hospital five minutes after
Anchalose. She stated that when she reached near to the toddy shop, she saw
Anchalosesittingonhismotorbikeandthe1staccused(Thomas)strikinghimon
the head with a "Konna Pathal". Due to the impact of the blow, Anchalose fell
ontotheroadfromhisbike.Whilehelayontheground,the2ndaccused (Biju),
and the 3rd accused (Sabu), repeatedly struck him with "Konna Pathal"allover
his body. PW1 stated that she was having close acquaintance with the accused
and identified them before the Court. She stated that the accused after yelling
that Anchalose would be done away with, lifted the bike and dropped it on his
body. They brandished the sticks and threatened the peoplewhowerestanding
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nearby from coming close or from comingtohisrescue.Fearingforherlifeand
for seeking help, PW1 ran back to the hospital.Onherwayback,shesawPW2
(AnilKumar)rushingtowardsthescene.SheinformedPW2abouttheattack,and
he rushed to the location and took steps to shift the injured Anchalose to
Lokarakshaka Hospital. The Doctor, after examining the injured, declared him
dead. She stated that the brother of the 2nd accused (Stanley) would often
threaten her by saying that her brothers would be murdered.Itwasduetothe
continuousthreatsoftheaccusedthatAnchalosehadshiftedhisresidencetohis
wife's house at Mundakkal. She stated that the accused had seen Anchalose
comingtothehospitaltomeethisgrandmotheranditwasafterseeinghimthat
they had planned to intercept and attack him.PW1identifiedthe"Pathal"sticks
usedbythethreeaccused,whichweremarkedasMOs1to3.Shewasincisively
cross-examinedbythedefence.Duringcross-examination,thewitnessstatedthat
Anil Kumar (PW2) was present near the hospital when she was returning back
home.Sheresidesmerely5metersawayfromboththehospitalandtheplaceof
occurrence. According to her, she did attempt to rescue her brother, Anchalose,
from the three accused by raising an alarm but the bystanders, fearing the
accused and their threats, didnotcomeforwardtohelp.Shefurtherstatedthat
her grandmother, Victoria, passed awayatthehospitalafewdaysafterlearning
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 23
about the death of Anchalose. ThePolicehadsummonedhertotheStationand
sheidentifiedthe"Pathal"sticksusedbytheaccusedforbeatingherbrother.She
stated that remnants of"Pathal"werepresentonthebodyofAnchaloseandhis
clothing. She categorically denied the defence suggestion that Anchalose, after
consuming alcohol, had ridden his motorcycle, collided with a culvert near a
bridge, and suffered injuries.
17. PW2, Anil Kumar, the brother-in-law of the deceased Anchalose, is
yet another witness examined by the prosecution to establish certain facts that
tookplaceimmediatelybeforeandaftertheincident.Hebeingthefirstinformant,
aproperevaluationofhisevidenceisverycrucialintheinstantcase.Accordingto
him, Anchalose was his brother-in-law and was residing in Kollam, at his wife's
house. He stated thatAnchalosevisitedtheirgrandmother,whowasadmittedto
LokarakshakaHospital.Hereachedthehospitalatabout5p.m.andwastheretill
about7p.m.Hehadcometothehospitalonabike,ownedbyhisfriendUnni.He
statedthatAnchaloseleftthehospitalandwenttothefamilyhouseforwhichhe
had to proceed through the road lying in front of the toddy shop. PW2, onthe
other hand, decided to smoke for which he went to a shop situated at the
Kochupullikadu Junction. While he was going back to thehospitalaftersmoking
the cigarette, he heard a commotion and cries near the toddy shop at
2025:KER:8584
Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 24
Kochupullikadu.Hethensawhiswife'ssister,Ajitha(PW1),runningtowardshim.
She told him that Anchalose was being beaten and that he was lying on the
ground. He rushed to the scene and saw the three accused standing near
Anchalose, who was lying ontheground,armedwithsticks.Healsosawtwoor
three other individuals, who were standing near to the accused. He saw the
motorcycle on top of Anchalose's body. PW2 and others who had by then
assembledatthespotliftedthebikefromthebodyofAnchaloseandtookhimto
the Lokarakshaka Hospital. Anchalose was slightly moving at that time. The
Doctor examined the injured and declared him dead at about 8 p.m. He stated
about the enmity that the accused had withFrancisandalsostatedthathehas
alsobeenthreatenedbytheaccusedwithphysicalharm.Accordingtohim,there
were street lights in the vicinity and he could see and identifytheperpetrators.
He stated that he gave Ext.P1 First Information Statement to the Chavara
Thekkumbagam Police Station on3.3.2007atapproximately10p.mandacrime
wasregisteredonitsbasis.PW2 identifiedtheaccusedaswellasthesticksused
by them. He also supportedtheversionofPW1thathiswife'sgrandmotherwas
admitted to Lokarakshaka Hospital two days before the incident due to old age
ailments and she died a few days after the death of Anchalose. In
cross-examination, the witness stated that the distance from the gate to the
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 25
entrance of the hospital is about 100 feet. It was broughtoutthroughhimthat
Anchalose and himself had come out from the hospital initially and it was
thereafter that PW1 had come out to leave. It was after having a smoke and
while returning to the hospital that he heard a commotion. By that time,Ajitha
had also come back asking for help. He stated that the family house of PW1is
quite close. He stated that he had seen the accused holding the sticks in their
hand.HedeniedthattheAnchalosehadsufferedanaccidentwhileridingthebike
in an inebriated state. Exts.D2 and D3 contradictions were marked while
cross-examining him. Those contradictions do not appear to be material.
18. The main contention advanced by the counsel appearing for the
appellantsisthatwhilefurnishingtheFIstatement,thepresenceofPW1wasnot
mentioned. It can be seen from the sequence of events that Anchalose was
brought to the hospital at about 8 p.m. and the FI statement was recorded at
10 p.m. without any delay whatsoever. It is pertinent to note that the Police
Station was situatedabout5.5kmawayfromtheplaceofoccurrence.Detailsof
previous enmity, thefactthatgrandmotherwasadmittedtothehospitalandthe
namesoftheaccusedfindaplaceintheFIR.Though4.3.2007wasaSunday,the
endorsementofthejurisdictionalMagistrateintheFIRwasobtainedat3.45p.m.,
within 18 hours after the registration.
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19. IdenticalcontentionswereraisedinBaldevSinghandAnotherv
State of Punjab2, which were repelled by the ApexCourt holding as under:
"10. .................We are of the view that the plea of the
appellants'counselfailstoreckonthepropervaluetobeattachedtothe
FIR, the customary oressentialdetailstobementionedthereinandthe
usethatcanbemadeofit.ThereareinnumerabledecisionsofthisCourt
dealing with the above aspects of the FIR.
xxxx xxxx xxx xxxx
Statedbriefly,theFIRisnotasubstantivepieceofevidence,itis
only relevant in judging the veracity of the prosecution case and the
value to be attached to it depends on the facts ofeachcase.Onlythe
essentialorbroadpictureneedbestatedintheFIRandallminutedetails
need not be mentioned therein. It is not a verbatim summary of the
prosecution case. It need not contain details of the occurrence as if it
werean"encyclopaedia"oftheoccurrence.Itmaynotbeevennecessary
to catalogue the overt acts therein. Non-mentioning of some facts or
vague reference to some others are not fatal. We should also bear in
mindthattheFIRwasgivenbyPW5,whoisanilliterateladysoonafter
the occurrence when she should have been very emotional and in a
disturbed state of mind."
20. InRattanSinghv.StateOfH.P3,whiledealingwithomissionsinthe
First Information Statement, it was held as under:
"9. ........... Omission of the said detail is there in the first
2
(1 995) 6 SCC 593
3
(1997) 4 SCC 161
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information statement, no doubt. But criminal courts should not be
fastidiouswithmereomissionsinthefirstinformationstatement,since
suchstatementscannotbeexpectedtobeachronicleofeverydetailof
what happened, nor to containanexhaustivecatalogueoftheevents
which took place. The person who furnishes first information to
authorities might be fresh with the facts but he neednotnecessarily
havetheskillorabilitytoreproducedetailsoftheentirestorywithout
anythingmissingtherefrom.Somemaymissevenimportantdetailsina
narration. Quite often the police officer, who takes down the first
information, would record what theinformantconveystohimwithout
resorting to any elicitatory exercise. It is voluntary narrative of the
informant without interrogation which usually goes into such
statement.Soanyomissionthereinhastobeconsideredalongwiththe
other evidence to determine whether the fact so omitted never
happened at all." (See also Pedda Narayana v. State of A.P (1975) 4
SCC153, SoneLalv.StateofU.P(1978)4SCC302, GurnamKaurv.
Bakshish Singh 1980 Supp SCC 567, and Kirender Sarkarv.Stateof
Assam (2009) 12 SCC 342.)
21. In Animireddy Venkata Ramana v. Public Prosecutor4, the
principles were further explained and it was observed as under:
"13. ... While considering the effect of some omissions in the first
information report on the part of theinformant,acourtcannotfailto
take into consideration the probable physical and mental condition of
thefirstinformant.Oneoftheimportantfactorswhichmayweighwith
thecourtisastowhethertherewasapossibilityoffalseimplicationof
theappellants.Onlywithaviewtotesttheveracityofthecorrectness
4
(2008) 5 SCC 368
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of the contents of the report, the court applies certain well-known
principles of caution."
In the case on hand, the promptness with which the FIR was registered
and the mentioning of all the essential details therein lend credibility to the
versions of both PW1 and PW2. In the factsandcircumstancesofthecase,the
failureofPW2tostatethepresenceofPW1atornearthesceneofthecrimewill
notinanywayaffectthecredibilityoftheirevidenceastotheincidentthatledto
the murder of Anchalose.
22. Of course, minordiscrepanciesintheversionandthesequenceof
events are highlighted by the learned Counsel. When PW1 stated thatitwasat
8p.m.thatAnchalosegotoutofthehospital,PW2statedthattheyallgotoutat
7p.m.ItneedstoberememberedthatthePW1andPW2arerusticvillagersand
some allowance needs to be given to their sense of timing and behavioural
pattern. No question was put to PW2 as towhetherhewaswearingawatchor
whetherthetimestatedbyhimwasexact.Hewascertainthattheincidenttook
place at around 8:00 p.m. and after the deathwasconfirmed,herushedtothe
Police Station and lodged the statement. As held by the Apex Court in Shivaji
Sahabrao Bobade v. State of Maharashtra5, the too-sophisticated
5
(1973) 2 SCC 793
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approachesfamiliarincourtsbasedonunrealassumptionsabouthumanconduct
cannot obviouslybeappliedtothosegiventothelethargicwaysofthevillagers.
Minor variances on the fringes, discrepancies in details, contradictions in
narrations and embellishments in inessential parts cannot militate against the
veracity of the core of the testimony provided there is a ring of truth in their
version.
23. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat6, the
Hon'ble SupremeCourt,whileconsideringtheminorcontradictionsandomissions
that occur in the statement of the witnesses, held as under:
"5 ........We do not consider it appropriate or permissible to enter
upon a reappraisal or re-appreciation of the evidence in the
contextoftheminordiscrepanciespainstakinglyhighlightedbythe
learnedcounselfortheappellant.Overmuchimportancecannotbe
attached to minor discrepancies. The reasons are obvious:
(1) By and large a witness cannot be expected to possess a
photographicmemoryandtorecallthedetailsofanincident.
It is not as if a video tape is replayed in the mental screen.
(2) Ordinarily,itsohappensthatawitnessisovertakenbyevents.
The witness couldnothaveanticipatedtheoccurrencewhich
so often has an element of surprise. The mental faculties
therefore cannot be expected to be attuned to absorb the
6
(1983) 3 SCC 217
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details.
(3) Thepowersofobservationdifferfrompersontoperson.What
one may notice, another may not. An object or movement
might emboss its image on one person's mind, whereas it
might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation
and reproduce the very words used by them or heard by
them. They can only recall the main purport of the
conversation. It is unrealistic to expect a witness to be a
human tape-recorder.
(5) Inregardtoexacttimeofanincident,orthetimedurationof
anoccurrence,usually,peoplemaketheirestimatesbyguess
workonthespurofthemomentatthetimeofinterrogation.
Andonecannotexpectpeopletomakeverypreciseorreliable
estimates in such matters. Again, it depends on the
time-sense of individuals which varies from person to person.
(6) Ordinarily, a witness cannot be expected to recall accurately
thesequenceofeventswhichtakesplaceinrapidsuccession
or in short time span. A witness is liable to getconfusedor
mixed up when interrogated later on.
(7) Awitness,thoughwhollytruthful,isliabletobeoverawedby
the court atmosphere and the piercing cross-examination
made by the counsel and out nervousness mixupfacts,get
confusedregardingsequenceofevents,orfillupdetailsfrom
imaginationonthespurofthemoment.subconsciousmindof
the witness sometimessooperatesonaccountofthefearof
looking foolish or being disbelieved though the witness is
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giving a truthful and honest account of the occurrence
witnessed by him - perhaps it is a sort of a psychological
defence mechanism activated on the spur of the moment."
24. As held by the Apex Court, while appreciating the evidence of a
witness, the approachmustbewhethertheevidencereadasawholeappears
to have a ring oftruth.Oncethatimpressionisformed,itisnecessaryforthe
court to scrutinize the evidence more carefully, considering the deficiencies,
drawbacks, and infirmities pointed out in the evidence as a whole. The court
must evaluate whether these issues contradict the general tenor of the
witness'stestimonyandwhethertheinitialevaluationoftheevidenceisshaken
enough to render it unworthy of belief. Minor discrepancies on trivial matters
thatdonottouchthecoreofthecaseorahyper-technicalapproachthattakes
sentencesoutofcontextorfocusesonsometechnicalerrorbytheinvestigating
officer that does not go to the root of the matter, would not ordinarilyjustify
rejecting the evidence as a whole. Even honest and truthful witnesses may
differ in some details unrelated to the main incident because the power of
observation, retention, and reproduction differs among individuals. As
cross-examinationisanunequalduelbetweenalaymanunacquaintedwiththe
intricaciesoflawandarefinedlawyer,muchimportancecannotbeattachedto
minor discrepancies. A witness cannot be expected to have a photographic
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memory and recall the details of an incident perfectly. The powers of
observation differ from person to person; what one may notice, another may
not.Inregardtotheexacttimeofanincidentorthedurationofanoccurrence,
people usually make their estimatesbyguessworkonthespurofthemoment
during interrogation. Ordinarily, a witness cannot be expected to recall
accurately the sequence of events that takes place in rapid succession or a
short time span. A wholly truthful witness may be overawed by the court
atmosphere and the piercing cross-examination by the counsel. Out of
nervousness, they may mix up facts, get confused about the sequence of
events, or fill in details from imagination on the spur of the moment (See:
Basheer K.K. v. State of Kerala7).
25. PW3 (Francis), the brother of the deceased Anchalose, was
examinedtoprovethemotiveforthemurder.PW3detailedahistoryofviolent
encounters and threats from the accused towards himself and his family. He
stated that the accused, including Thomas (A1), had assaulted him multiple
times and he also spoke about the registration ofCrimeNo.57of2003atthe
Kizhakkekallada Police Station, Crime No. 222 of 2005 and Crime No. 267 of
2006 was registered at the Chavara Thekkumbagam Police Station. He stated
7
[2024:KER:87133]
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that the accused used to threaten his family,sayingtheywouldnotallowany
memberofhisfamilytolive.HeaddedthatAnchalosemovedtoKollamoutof
fearoftheaccused.Hementionedthattheaccusedrepeatedthethreatagainst
themtoseveralpersons.HecorroboratedtheevidenceofPWs1and2.Healso
stated that his grandmother was admitted to the hospital and Anchalose had
come to the hospital to meet her.
26. WemayalsorefertotheevidenceofPW11atthisjuncture.Hewas
an attestor to the inquest. He stated that the deceased was the son of his
father'sbrother.Healsospokeaboutthepreviousenmitybetweenthefamilies
and stated that Anchalose had come to enquire about the health of the
grandmother. Having evaluated the evidenceofPWs1,2and11,wefindthat
they havestatedacogentandconvincingversionbeforethecourtwithregard
to the occurrencewhichtookplaceon03.03.2007andwhicheventuallyledto
the homicidal death of Anchalose.
27. Now we shall deal with the contention of theaccusedthatthereis
no evidence to show that the grandmother was actually admitted to the
hospital. PWs 1 and 2 had pleaded ignorance about the details of the Doctor
and the room where the grandmother had stayed. It is the contention of the
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defencethatifthemotherwasactuallynotadmitted,therewasnooccasionfor
thedeceasedorPW1andPW2tovisitthehospital.Inthiscontext,itwouldbe
relevanttonotethatPW1(Ajitha),PW2(AnilKumar),PW3(Francis),andPW11
deposed that Victoria was under treatment at Lokarakshaka Hospital on
3.3.2007. In Ext.P1 statement lodged within 2 hours of the incident, the fact
thatthegrandmotherwasadmittedtothehospitalandAnchalosehadcometo
visit her has been stated. The defence examined DW1, Sr. Jeena Mary, the
AdministrativeOfficerofLokarakshakaHospital,whodeposedbeforetheCourt
that VictoriaJosephwasadmittedtothehospitalandwasundertreatmentfor
Diabetic Nephropathy and she died on 16.03.2007. She also produced the
DeathReportRegister(Ext.X1)toprovethisfact.She,however,statedthatthe
treatment records of Victoria for the date of the incident, which was
03.03.2007, were not available. The trial took place after a decade of the
occurrence and the Administrative Officer had stated that papers and
documents pertaining to the month of March 2007 were not available in the
hospital. Exts.X1 andX2emphaticallyshowthatVictoriahadpassedawayand
thisfactcorroboratestheevidenceofPW1andPW2.Wedonotthereforethink
that there is anymeritinthecontentionoftheappellantsthatVictoriahadno
occasion to undergo treatment at the Lokarakshaka hospital.
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28. ItwouldbeappositeatthisjuncturetorefertotheevidenceofDW5
(Usha),whowasexaminedtoprovethatnoincidentofthenatureallegedhad
taken place. She gave evidence that PW1 and PW2 were not present at the
placeofoccurrenceandthattheyarrivedattheplaceonlyafterthepolicehad
taken Anchalose to the hospital. It was brought out that she was the wife of
PW1's brother, and they had been on inimical terms for several years. She
stated that the houseofThomaswassituatedwithin450metersofherhouse
and thatAjithawasresidingnearherhouseandquiteneartothetoddyshop.
Shestatedthatsheisawareofthepreviousincidentsinvolvingtheaccusedand
PW3. She pleaded ignorance when asked whether the grandmother was
admittedtothehospital.Accordingtoher,thedistancefromthetoddyshopto
herresidenceisjust20meters.Sheheardabouttheincidentthattookplaceon
3.3.2007 at the toddy shop from her neighbours. When she went there, she
foundAnchaloselyingontheroadinaproneposition.Therewereabout20-25
peopleandtheywereallknowntoher.Thoughshestoodtherefrom6p.m.to
8.30 p.m., she did not bother to enquire with anyoneastohowinjurieswere
sustainedbyAnchalose.Whenshewasaskedwhethershewascertainthatthe
accused had perpetrated the acts, sheansweredthatshewasunawareofthe
same. She stated that she was not even aware of the names of the persons
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who stood there. After a few days, she was told that the accused were the
perpetrators of the crime. From the tenor of her evidence, it is clearthather
relationship with PW1 was very strained. Her version that she saw Anchalose
lying face down in the road and did not even bothertoenquireastohowhe
had suffered the injuries is hard to believe. Anchalose was her close relative
and it belies comprehensionastowhyshestoodnearherinjuredrelativeand
refrainedfromseekinginformationaboutthecauseofinjury.Itisthusobvious
that the witness did not want to state before the court her awareness of the
names of the perpetrators of the crime. Curiously enough, she was also not
asked whether Anchalose had suffered injuries after having met with a
motorcycle accident as contended by the defence. The evidence tendered by
Usha is against probabilities and the ordinary course of human conduct. The
learned Sessions Judge has rightly disbelieved the evidence of DW5.
29. Serious contentions were raised by the defence with respect to
MOs 1 to 3 weapons which were allegedly used by the accused to inflict the
injuries.InsofarasMO1andMO2areconcerned,thesamewasrecoveredfrom
thesceneofthecrimeasperExt.P2scenemahazarpreparedon4.3.2007.One
stick had a length of about 120 cm and the other about 70 cm. PW13, the
InvestigatingOfficer,deposedthatbasedonthedisclosurestatementfurnished
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 37
bythe3rdaccused,andasledbyhim,astickwasrecoveredfromtheproperty
of one Lambodaran Pillai. PW16, Celine, also testified that she was present
duringtherecoveryofMO3fromthepropertyofLambodaranPillai.Shestated
thatthe3rdaccusedtookthe"Pathal"fromunderacoconuttreeandhandedit
tothepolice.PW6(Jose)alsosignedtherecoverymahazarforMO3.Thestick
seized measured about 90 cm in length. PWs 1 and 2 had identified the
weapons when the same were shown to them. Ext.P8 is the Analyst Report
whichcontainsthedetailsofthestickswhichwereforwardedasperTRNo130
of 2007. Item No. 5 (MO1) had a length of 126 cm, item No. 6(MO2)hada
length of 93 cm and item No.7 (MO3) had a length of 72cm.Allthreesticks
were of the same plant and weremoreorlessidenticalexceptforthelength.
Even if there is some discrepancy in the marking of the stick while the same
was showntoPW1,itwouldnotmakeanymaterialdifference.Inthatviewof
thematter,thecontentionforcefullyadvancedbythelearnedcounselcannotbe
sustained.
30. It wascontendedthattherecoveryofthestickswouldnotadvance
the case oftheprosecutionastheanalystreportdoesnotrevealthatthesaid
itemscontainedhumanbloodorthatthegroupingofthebloodlinksitwiththat
of the deceased. It was also urged that the Material Objects were not
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 38
forwardedtothecourtandthereforetotheanalystpromptly.Whenthedelayin
forwardingthestickswasputtotheInvestigatingOfficer,herespondedthatthe
delay was occasioned as the weapons had to be shown to the eyewitnesses.
Insofarasthefailuretodetecttheoriginofthebloodisconcerned,itneedsto
beborneinmindthatgroupingmaynotbepossibleduetothedisintegrationof
the serum, haematological changes, plasmatic coagulation etc. This aspect of
the matter was considered by the Apex Court in R. Shaji (supra) and it was
held as under:
A failure by the serologist to detect the origin oftheblooddueto
disintegration of the serumdoesnotmeanthatthebloodstuckon
the axe could not have been human blood at all. Sometimes it is
possible, either because the stain is insufficient in itself, or dueto
haematologicalchangesandplasmaticcoagulation,thataserologist
may fail to detect the origin of the blood in question.However,in
suchacase,unlessthedoubtisofareasonabledimension,whicha
judiciallyconscientiousmindmayentertainwithsomeobjectivity,no
benefit can be claimed by the accused in this regard. Once the
recovery is made in pursuance of a disclosure statement madeby
theaccused,thematchingornon-matchingofbloodgroup(s)loses
significance.(VidePrabhuBabajiNavlev.TheStateOfBombayAIR
1956 SC51,RaghavPrapannaTripathiv.StateofU.PAIR1963SC
74,StateofRajasthanv.TejaRam(1999)3SCC507,GuraSinghv.
StateOfRajasthan(2001)2SCC205, JohnPandianv.State(2010)
14 SCC 129 and Sunil Clifford Daniel v.StateOfPunjab(2012)11
SCC 205.)
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 39
Furthermore, PW7, the Doctor who conducted the postmortem stated
before the court in unequivocal terms that the injuries found on Anchalose
could have been caused by blows from "Pathal" sticks like MOs 1 to 3.
31. Serious contentions were advanced with regard to the omission of
accused Nos. 3 and 4 in the FIR while submitting thefinalcharge. Asstated
earlier,on08.03.2007itselfareportwassubmittedbeforethecourttransposing
the 5th accused in the FIR as the 3rd accused. It was after the investigation
was taken over by PW17 on 31.07.2007 that he submitted Ext.P29 report
deleting the names of Stanley and Joy, who were arrayed as accused Nos. 3
and4intheFIR. Inhisevidence,hestatedthathehadrecordedtheadditional
statements of CWs 1 and 3 andthestatementsofCWs4,5,20and21,after
taking over the investigation. Even while tendering evidence, PW1 had only
stated about the involvement of accused Nos. 1 to 3. In that view of the
matter, it cannot be said that the investigating agency was not fair and that
therewasnobonafideinremovingaccusedNos.3and4fromthearrayofthe
accused.
32. We are also not impressed with the contention advanced by the
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learned counsel that no evidence was adduced by the prosecution to
substantiate that there existedacommonintentiontocommittheoffence. In
this context, it wouldberelevanttonotethatPW1inherevidencehadstated
that the accused, who were residing in the near vicinity of the Toddy shop
situatednearherhouse,hadoccasiontowitnessthedeceasedtravellingtothe
hospital to visit the grandmother. It was when he had returned after about
2 hrs. that his bike was intercepted and he was attacked with weapons.
Section34oftheIPChasbeenenactedontheprincipleofjointliabilityindoing
a criminal act. As the provision deals with constructive criminal liability of
offenders,itdoesnotrequireproofthatanyparticularaccusedwasresponsible
for the commission of the actual offence. The Section is intended to meet a
case in which it is difficult to distinguish between the acts of individual
members of a party and to prove exactly what part was played by each of
them. The provision therefore enables thatonceitisfoundthatacriminalact
hasbeencommittedbyseveralpersonsinfurtheranceofthecommonintention
of all, each of such persons are liable for the act in the same manner asthe
principal offender. Direct proof of common intention is seldom available and
therefore, such intention can only be inferred from the proved facts and
circumstances. The prior concert or meeting of minds is gathered from the
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Crl.A.Nos. 182, 462 of 2021 & 15 of 2025 41
manner in which the crime has been committed, the conduct of the accused
soon before and after the occurrence, the determination and concern with
which the crime was committed, theweaponcarriedbytheaccusedandfrom
thenatureofinjurycausedbyoneorsomeofthem. Therefore,forarrivingat
a conclusion, whether the accused had the common intention to commit an
offenceofwhichtheycouldbeconvicted,thetotalityofcircumstancesmustbe
takenintoconsideration. (See:Goudappa&Ors.vs.StateofKarnataka8) .
In the case on hand, the evidence establishes that all the three accused had
inflictedinjurieswith"KonnaPathal"andasmanyas35injurieswerefoundon
thebodyofthedeceased. Theserologyreporthasalsorevealedthepresence
ofbloodthoughitsorigincouldnotbedetermined. Inthatviewofthematter,
weareunabletoacceptthesubmissionofthelearnedcounselthatthelearned
Sessions Judge haserredinapplyingtheprinciplesofSection34oftheIPCin
theinstantcase. Inviewofthediscussionabove,weareoftheviewthatthe
contentions raised by the appellants to assail the judgment passed by the
learned Sessions Judge do not merit any acceptance.
8
AIR2013SC1595
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Conclusion:
33. We find no reason to interfere with the judgment rendered by the
learned Sessions Judge in S.C.No.565of2011onthefileoftheIIIAdditional
SessionsCourt,Kollam,findingtheappellants/accusedNos.1to3guiltyofthe
offence punishable under Section 302 r/w. Section 34 of the IPC.
These appeals will stand dismissed, confirming the finding of guilt,
conviction and sentence.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
P.V. BALAKRISHNAN,
PS/A
PM/04/02/25 JUDGE
