Kerala High Court
Biju Molla vs State Of Kerala on 18 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:42853
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 18TH DAY OF JUNE 2025/28TH JYAISHTA, 1947
CRL.A NO. 333 OF 2024
AGAINST THE JUDGMENT DATED 11.01.2024 IN SC NO.101
OF 2019 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
II, NORTH PARAVUR
APPELLANT/ACCUSED (IN CUSTODY FROM 30.07.2018):
BIJU MOLLA
AGED 34 YEARS
S/O. GULMAJAN MOLLA, SURLABARPARA, MR. JALANGI
POLICE STATION, MURSHIDABAD, WEST BENGAL, PIN -
742305
BY ADVS.
SRI.P.MOHAMED SABAH
SRI.LIBIN STANLEY
SMT.SAIPOOJA
SRI.SADIK ISMAYIL
SMT.R.GAYATHRI
SRI.M.MAHIN HAMZA
SHRI.RAYEES P.
SHRI.ALWIN JOSEPH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
BY ADV.SMT.AMBIKA DEVI S., SPL.PUBLIC
PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09.06.2025, THE COURT ON 18.06.2025 DELIVERED THE
FOLLOWING:
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C.R.
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
Crl.Appeal No.333 of 2024
-----------------------------------------------
Dated this the 18th day of June, 2025
JUDGMENT
P.B.Suresh Kumar, J.
The appellant is the sole accused in S.C.No.101 of
2019 on the files of the Additional Sessions Court-II, North
Paravur. He stands convicted and sentenced for offences
punishable under Sections 449, 392, 397, 307 and 302 of the
Indian Penal Code (IPC).
2. The appellant hails from the State of West
Bengal. He was employed as a cleaning staff under one Hasbul
Ali Mulla in a factory at Kizhakkambalam. The crime that forms
the subject matter of the case was registered on 30.07.2018 at
Thadiyittaparambu Police Station. As per the final report filed
in the case, at about 9.45 a.m. on 30.07.2018, the appellant,
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with the intention of committing robbery, trespassed into the
house of one Thambi and attempted to snatch the gold chain
worn by the mother of Thambi. When Nimisha, the daughter of
Thambi, tried to prevent the appellant from doing so, he
grabbed the kitchen knife that Nimisha was carrying then and
killed her by slitting her throat. He then forcibly snatched the
gold chain worn by Mariyamma, the mother of Thambi. At that
point, Elias, the elder brother of Thambi, tried to intervene. The
appellant then attempted to kill him also by trying to slit his
throat with the knife. When Elias knocked the knife out of the
hand of the appellant and attempted to overpower him, the
appellant repeatedly stabbed him aiming at his chest with
another knife which he found in the kitchen slab of the house.
As Elias warded off the blows, the stabs landed on his left
hand. The appellant thereafter fled from the scene with a piece
of the gold chain snatched by him.
3. Pursuant to the final report, when the
appellant was committed to trial, the Court of Session framed
charges against him under Sections 449, 392, 397, 307 and
302 IPC. The appellant denied the charges. The prosecution
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thereupon adduced evidence to establish the guilt of the
accused. The evidence comprises of the oral testimony of 40
witnesses and 68 documents. A large number of material
objects were also produced during the trial. When the
incriminating evidence were put to the appellant in terms of
the provisions contained in Section 313 of the Code of Criminal
Procedure (the Code), he denied the same and maintained that
he is innocent. Thereupon, on a consideration of the evidence,
the Court of Session found the appellant guilty of the offences,
convicted him and sentenced, among others, to undergo
imprisonment for life. The appellant is aggrieved by his
conviction and sentence.
4. Adv.Sai Pooja addressed arguments on behalf
of the appellant and Smt.Ambika Devi, the Special Public
Prosecutor addressed arguments on behalf of the state.
5. The essence of the elaborate submissions
made by the learned counsel for the appellant is that the
evidence let in by the prosecution does not establish that it
was the appellant who caused the death of Nimisha and
injured Elias. Alternatively, it was argued by the learned
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counsel that even if it is assumed that it was the appellant who
caused the death of Nimisha and injured Elias, there are no
materials to come to the conclusion that the appellant is guilty
of the offences punishable under Sections 302 and 307 IPC.
6. The point that arises for consideration is
whether the conviction of the appellant for the offences
charged, and the sentences passed against him, are
sustainable in law.
7. In order to adjudicate the point formulated for
decision, it is apposite to refer to the evidence in the case. As
noted, the elder brother of Thambi namely, Elias who suffered
serious injuries in the occurrence is one of the crucial
witnesses in the case. Elias was examined as PW2. PW2 was a
headload worker residing close to the house of Thambi. The
evidence of PW2 is that he used to go to his house for tea
everyday at about 10.00 a.m.; that on the relevant day, his
friend namely, Abbas and he went to his house at the usual
time for tea in his motorcycle and that Abbas thereupon left for
his house in the same motorcycle. It was deposed by PW2 that
while he was handing over to his wife, the fish which he
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brought home, they heard the scream of Nimisha and when he
rushed to the house of Thambi on hearing the scream, he
found the appellant, who was identified by him in court, in the
kitchen of the house attempting to snatch the chain of his
mother with his left hand, while holding a bloodstained knife in
his right hand. It was deposed by PW2 that when he attempted
to knock down the knife held by the appellant, even though the
appellant brandished the knife towards his neck, PW2 was able
to knock down the knife and push the appellant to a corner of
the kitchen. It was also deposed by PW2 that the appellant
then stabbed him repeatedly with another knife which the
latter found on a slab in the kitchen. According to PW2,
although the stabs were aiming at his abdomen, the same
landed on his left hand when he warded off the same. It was
deposed by PW2 that he then observed that his mother was
crying aloud and that Nimisha was leaning against a wall,
covering her neck with a shawl. It was also deposed by PW2
that at the relevant time, the clothes of Nimisha were
drenched in blood. According to PW2, blood was flowing across
the kitchen floor and the floors of the adjoining hall and work
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area. It was deposed by PW2 that there was no one els e then
in the house other than him, his wife, his mother and Nimisha.
It was deposed by PW2 that it was at that point of time, Abbas
came to the scene and when Abbas required the appellant to
drop down the knife by raising a chair in a threatening manner,
the appellant dropped the knife. According to PW2, when the
appellant dropped the knife, Abbas overpowered him and kept
him in a room adjoining the hall. It was deposed by PW2 that
thereafter, Abbas took him and Nimisha to the sit-out of the
house and made him sit on a chair while Nimisha was laid
down on the floor. PW2 identified MO3 as the knife held by the
appellant at the time when PW2 came to the scene and MO4
as the knife with which the appellant stabbed him. PW2 also
identified MO12 as the T-shirt and MO13 as the jeans worn by
the appellant at the time of occurrence. Similarly, PW2 also
identified MO5 as the piece of gold chain snatched by the
appellant from his mother and MO11 as the remaining piece of
the same chain.
8. PW3 is Abbas referred to by PW2. According to
PW3, he came to the house of Thambi on hearing the screams
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of the residents therein on his way to pick up PW2 from his
house and on reaching the scene, PW3 saw the appellant
stabbing PW2. PW3 gave evidence more or less on similar lines
as the evidence tendered by PW2 as regards the occurrence
that took place after his arrival at the scene. In addition, it was
deposed by PW3 that even though he was able to overpower
the appellant and keep him in a room adjoining the hall, he
could not lock the room since there was no latch on its door. It
was also deposed by PW3 that while he took Nimisha and PW2
to the sit-out of the house, the appellant escaped from the
room through the kitchen door. In cross-examination, PW3
asserted that he saw the appellant in the locality on an earlier
occasion as well.
9. PW1, namely the wife of PW2 reached the
scene after PW2. PW1 also gave evidence more or less on
similar lines as the evidence tendered by PW2 and PW3. In
addition, it was deposed by PW1 that when she reached the
scene, the mother of PW2 was crying saying “എന രക ക ൻ
വ തന ണ ണല ന മ ഷ ലമ ൾക ഇത സ ഭവചത” and it was whilst so, that
the appellant was simultaneously stabbing her husband. PW1
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affirmed that it was she who gave Ext.P1 First Information
Statement to the police at about 11.30 a.m. on the relevant
day and also identified the material objects as identified by
PW2. PW1 clarified in her evidence that the gold chain
snatched by the appellant from Mariyamma was not available
in full at the scene and that only a portion thereof was
available there and she identified the same as MO5.
10. PW4 is a lady residing close to the house of
Thambi. PW4 deposed that when she rushed to the scene on
hearing the screams, she found Nimisha lying in the sit-out of
the house drenched in blood and that PW2 was sitting on a
chair by her side with his left hand covered with a towel. It was
deposed by PW4 that there was nobody else in the house at
that point of time other than PWs 1 and 3 and PW3 among
them was found loudly calling out to catch the North Indian
wearing a red shirt who ran out of the house. PW5 is another
lady residing in the neighbourhood of the house of Thambi.
PW5 deposed that on the relevant day, at about 10 a.m., she
was standing near her house talking with her friend Nazeema
and whilst so, she saw the appellant, who was identified by her
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in court, running away towards the south with a knife in his
hand. According to PW5, he was wearing MO12 red T-shirt and
MO13 black pants at the relevant time. It was also deposed by
PW5 that the appellant was a person residing in the
neighbourhood and that she had occasion to see him earlier as
well, even though she does not know him personally. It was
affirmed by PW5 that she gave a statement to the police to the
said effect on the same day itself.
11. PW6 is also a person residing in the locality.
PW6 deposed that on the relevant day, while he was waiting at
Edathikaad Junction, two persons namely Basheer and Ansar,
who came there in a motorcycle and ascertained from him as
to whether he saw a North Indian wearing a red T-shirt passing
through the road. It was the version of PW6 that when he
answered their query in the negative, they informed him that
the said person has caused injuries to the brother and
daughter of Thambi and also that he snatched the gold chain
of the mother of Thambi. It was deposed by PW6 that he too
then followed them in his motorcycle and whilst so, they saw a
few persons gathered near a partly constructed house.
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According to PW6, the persons there informed him that a North
Indian has gone inside that house and that he was carrying a
knife. It was deposed by PW6 that when he entered the house
alone with a stick, he saw the appellant, who was identified by
him in court, standing inside one of the bathrooms in the said
house. According to PW6, when he brandished the stick carried
by him at the appellant, the appellant attempted to hit him
back with a piece of cladding stone which he took from that
place and while doing so, he lost his balance and fell down. It
was the version of PW6 that on the appellant falling down, PW6
took control over him and by that time, all those who had
gathered there also came inside the house, caught hold of the
appellant and handed him over to the police. PW6 identified
MO12 and MO13 as the clothes worn by the appellant at the
relevant time.
12. PW22 is the police surgeon who conducted the
postmortem examination on the dead body of Nimisha and
issued Ext.P.16 postmortem certificate. The following were the
ante-mortem injuries found at the time of postmortem
examination as deposed by PW22:
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“1. Superficial incised wound, 3.5×0.2cm, in a curved state
with convexity facing upwards, almost horizontal, on front of
chin, 1cm below lip margin across the midline.
2. Superficial incised wound, 2×0.2cm, obliquely placed on
front of chin, 1cm above tip of chin across the midline.
3. Incised wound, 15.5×4.2cm, 3.5cm deep (at the midline), on
front of neck across the midline. The wound was lying almost
horizontal, below the level of Adam’s apple, with its right end
relatively at a lower level. The major portion of the wound was
seen lying to the right of midline (6.5cm on left side and 9cm
on the right of midline) and the right outer end was seen 7cm
below the lower jaw margin and left outer end being 5cm
below the lower jaw margin. No hesitation cuts were seen at
either ends of the injury. The right half of the lower edge of the
wound showed minimal stepping at a distance of 4.5cm inner
to the right outer end. Both ends of the wound were in sharply
cut state. The wound was seen transecting the trachea (wind
pipe) completely and the esophagus in its partial thickness on
its front wall, exposing the lumen. The strap muscles in the
region were seen cleanly cut. The inner border of front aspect
of left sterno-mastoid muscle showed a partial cut. The right
sterno-mastoid muscle was seen cut in half of its thickness.
The right external jugular vein was in a cut opened state.
Other structures and blood vessels in the anterior triangle of
neck were in a severed state at the level of the injury (Flap
dissection technique under bloodless field was employed for
the examination of neck structures).
4. Superficial incised wound, 7 x 0.1cm, obliquely placed on
outer aspect of right knee.
5. Abrasion, 0.5 x 0.5cm, on top of left shoulder near its tip.
6. Abrasion, 1 x 1cm, on inner aspect of left knee.
7. Abrasion, 1.5 x 0.2cm, on inner aspect of left ankle.”
PW22 opined that the death of Nimisha was due to the incised
cut throat injury namely, Injury 3, noted by him and that the
said injury could be caused with MO3 knife. It was also opined
by PW22 that the width of an injury depends on the location of
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the injury on the body and only the length and depth of the
injury can be related to the weapon. It was deposed by PW22
that considering the site, location, nature and characteristics of
the injury, it can be concluded that injury 3 is not a self-
inflicted injury for, had it been a self-inflicted injury, there
would have been hesitation cuts on either side of the injury.
13. PW23 was the doctor who examined PW2 on
30.07.2018 at Rajagiri Hospital, Aluva. It was deposed by PW23
that PW2 stated to her that he sustained injuries while trying to
save Nimisha and that the assailant initially inflicted injuries on
his abdomen with a sharp weapon and thereupon he took
another knife and caused injuries on his left upper limb.
Ext.P17 is the accident register-cum-wound certificate issued
by PW23. The following were the injuries noted by PW23 on the
body of PW2 as deposed by PW23:
“1. Abrasion to the right of navel (3cm long near horizontal
slash wound 7 cm lateral to umbilicus).
2. Cut wound on left elbow (near horizontal, 5cm x 4cm
muscle deep).
3. Cut wound below left elbow (vertical 4.5cm x 2cm x muscle
deep).
4. Cut wound on middle of left forearm (vertical 3.8cm x
1.5cm x muscle deep).
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5. Two slash wounds 1 cm apart below left elbow (each 1.5 cm
long).
6. One slash wound on the base of left thumb (1.5cm long).”
It was deposed by PW23 that the injuries noted by her on the
body of PW2 could be caused with MO4 knife. It was also
deposed by PW23 that PW2 underwent two surgeries
thereupon in the hospital, the first one was on 30.07.2018 and
the second one was on 07.08.2018. Ext.P18 is the discharge
summary issued to PW2. It was also deposed by PW23 that the
injury sustained by PW2 on the left elbow was deep; that the
major blood vessel was injured and that the bleeding from such
an injury is sufficient in the ordinary course of nature to cause
death.
14. PW24 is the scientific officer attached to the
District Crime Records Bureau who inspected the scene of
occurrence on 30.07.2018 and collected various objects for
forensic examination. It was deposed by PW24 that it was he
who collected the swab from the hands of the appellant at the
police station and handed over the same to the police. PW36 is
an ex-service man who is proficient in Hindi. It was PW36 who
acted as an interpreter for the investigating officer to
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interrogate the appellant in the case on his arrest. PW36
identified the appellant in court and affirmed the said fact.
15. PW39 was the inspector attached to
Thadiyittaparambu Police Station during the relevant period. It
was deposed by PW39 that on the relevant day at about 10.10
a.m., he received information about the crime and that he
immediately proceeded to that place where the appellant was
detained by the people, apprehended him, and brought him to
the police station. It was also deposed by PW39 that he then
proceeded to the scene of occurrence, recorded Ext.P1 First
Information Statement from PW1, registered the crime and
held the inquest. It was also deposed by PW39 that later, he
proceeded to the scene of occurrence again along with the
Scientific Officer, prepared Ext.P9 scene mahazar and seized,
among others, a bloodstained knife, a gold coloured chain etc.
16. PW40 is the police officer who conducted the
investigation in the case. PW40 deposed that he recorded the
arrest of the appellant at 7.16 p.m. on 30.07.2018 and seized,
at the time of arrest, among others, MO12 shirt and MO13
jeans worn by the appellant as also MO11 piece of a gold chain
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carried by him, as per Ext.P28 mahazar. It was deposed by
PW40 that in the course of the interrogation, it was disclosed
by the appellant that he has concealed a knife and that he can
handover the same if he is taken to the place where it is
concealed and on the basis of the said disclosure, when the
appellant was taken to the place mentioned by him, namely
the place from where he was apprehended by PW6, the
appellant took out from there, MO4 knife and handed over the
same to PW40 and he seized the same as per Ext.P10
mahazar. Ext.P10(a), according to PW40, is the disclosure
which led to the recovery of MO4 knife. It was deposed by
PW40 that MO4 knife, at the time of seizure, contained
bloodstains and that the Scientific Officer who accompanied
him while effecting the recovery, collected the samples of
blood in cotton gauzes from MO4 knife and handed over the
same to PW40 for forensic examination. It was also deposed by
PW40 that the various material objects collected/recovered
during the investigation have been produced before the
jurisdictional Magistrate for forwarding the same to the
Forensic Science Laboratory, Thiruvananthapuram.
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17. PW19 was the doctor who collected the hair
samples and nail clippings of the appellant and handed over
the same to the police for forensic examination. PW19 deposed
the said fact in his evidence. PW20 is a gold appraiser engaged
by the police to examine MO5 and MO11 pieces of gold chain
and he deposed that on examination, he found the same to be
parts of the same gold chain. PW13 is a person who witnessed
the recovery of MO4 knife as per Ext.P10 mahazar. He deposed
the said fact in his evidence.
18. Ext.P60 is the report of the forensic science
laboratory obtained by the jurisdictional Magistrate in respect
of the material objects collected and recovered in the case.
Item 27 in Ext.P60 is the blood sample of Nimisha collected at
the time of postmortem examination and item 44(a) is the
blood sample of PW2 collected by PW23 while he was
undergoing treatment at Rajagiri Hospital. It is reported in
Ext.P60 that item 27 belongs to Group ‘A’ and item 44(a)
belongs to Group ‘O’. Item 39 in Ext.P60 is MO4 knife and it is
reported therein that the bloodstain therein belongs to both
group ‘A’ and group ‘O’. Items 9, 10 and 11 are the hair
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samples collected from the house where the occurrence took
place and item 47(c) therein is the hair samples of the
appellant. It is reported in Ext.P60 that 6 out of 20 hairs in item
9 and 13 out of 20 hairs in item 10 are human scalp hairs
similar to the hairs in item 47(c). Items 21 and 22 in Ext.P60
report are MO12 T-shirt and MO13 jeans worn by the appellant
at the time of occurrence and item 30 therein is the swab
taken by PW24 from the hands of the appellant on the date of
his arrest. It is reported in Ext.P60, after DNA profiling, that the
bloodstain contained in MO13 jeans is that of the blood of
Nimisha and the bloodstains in MO12 T-shirt and in the swab
collected from the hands of the appellant on the date of his
arrest, are a mixture of the stains of the blood of Nimisha and
the appellant. Item 14 in Ext.P60 is MO3 and item 39 therein is
MO4. It is reported in Ext.P60, after DNA profiling, that the
bloodstains in those items are also a mixture of the stains of
the blood of Nimisha and the blood of PW2. Item 47(b) in
Ext.P60 report is the nail clippings of the appellant. It is
reported in Ext.P60 that item 47(b) contained cells and tissues
belonging to Nimisha and also the cells and tissues of the
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appellant.
19. The tenability of the various arguments
advanced by the learned counsel for the appellant as regards
the acceptability of the evidence let in by the prosecution
needs to be considered at this stage. It was argued generally
by the learned counsel for the appellant that there are
variations, omissions, embellishments and material
discrepancies in the oral account of the crucial witnesses and
the same shall not therefore be the basis of a conviction. As
regards the evidence tendered by PW1, the contention raised
is that the same is not consistent with Ext.P1 First Information
Statement and as regards the evidence tendered by PW2, the
contention is that the same is not consistent with the evidence
of PW3. We do not find any merit in the arguments aforesaid.
The discrepancy highlighted by the learned counsel for the
appellant in the evidence of PW1 is as regards what was seen
by her upon reaching the scene. PW1 reached the scene only
after PW2. The version of PW1 was that when she reached the
scene, she found the appellant in the kitchen of the house of
Thambi, attempting to snatch the chain of his mother with his
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left hand while holding a bloodstained knife in his right hand.
PW2 also deposed on the same lines. It was clarified by PW1 in
her evidence that what was stated by her in Ext.P1 First
Information Statement was that when she reached the scene,
the appellant was holding in one hand a shawl wrapped around
the neck of Nimisha and a bloodstained knife in the other hand
and the same was a mistake that arose on account of her state
of mind then following the death of Nimisha and the attack on
her husband and that she has later clarified that aspect to the
police. The discrepancy aforesaid, according to us, is not
sufficient, on the facts and circumstances of the present case,
to doubt the veracity of the evidence given by PW1, especially
in the light of the explanation offered by her that it occurred
on account of her state of mind following the death of Nimisha
as also the attack on her husband. The discrepancy highlighted
by the learned counsel for the appellant in the evidence of
PW2 is that his evidence is not consistent as regards the time
at which PW3 arrived at the scene. We do not think that the
discrepancy, if any, in the evidence of PW2 as regards the time
at which PW3 reached the scene is a reason, in the peculiar
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facts and circumstances of this case to doubt the veracity of
the evidence tendered by PW2.
20. It was also argued by the learned counsel that
the prosecution has omitted to examine the most crucial
witness namely, Mariyamma, the grandmother of Nimisha who,
according to the prosecution, witnessed the attack on Nimisha
by the appellant. According to the learned counsel, the best
evidence in a case of this nature to prove as to how Nimisha
sustained the fatal injury would have been the oral account of
Mariyamma and the decision of the prosecution to withhold her
evidence, makes the entire evidence let in by the prosecution
to prove the said fact, suspicious. The materials on record
indicate that at the time of occurrence, Mariyamma was aged
85 years. Evidence was taken after almost five years from the
date of occurrence. In other words, Mariyamma would have
been 90 years at the time when the trial commenced. It has
come out from the evidence of PW1 that at the time when the
trial had commenced, Mariyamma did not have any memory.
There is nothing to infer that the evidence tendered by PW1 in
this regard is incorrect. That apart, there was no impediment
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for the appellant to examine Mariyamma on his side, if she was
capable of giving evidence in the case. In the circumstances,
we do not find any merit in the said argument as well.
21. Another argument pressed into service by the
learned counsel is as regards the disclosure stated to have
been made by the appellant on the basis of which it was
deposed by PW40 that MO4 knife was recovered. According to
the learned counsel, the evidence tendered by PW40 in this
regard would not fall within the scope of Section 27 of the
Indian Evidence Act. We find force in this argument. In Sanjay
Oraon v. State of Kerala, 2021 (5) KLT 30, this Court held that
the disclosures of accused persons which could be proved
under Section 27 should be clearly and carefully recorded by
the police officer in first person in his own language and then,
only so much of the information as is necessary and sufficient
to cause the discovery, will be admissible. It is seen that later
in Siju Kurian v. State of Karnataka, 2023 KLT Online 1329 (SC),
the Apex Court has clarified that merely because the disclosure
made by the accused is translated from one language to
another language and recorded in a third language, it cannot
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be contended that it is not admissible in evidence, if the
translator comes forward and gives evidence in the case.
Reverting to the facts, the disclosure on the basis of which
MO4 knife is stated to have been recovered, was deposed to by
the investigating officer in Malayalam. The appellant is not a
person who is proficient in Malayalam. Even according to the
prosecution, the appellant was interrogated with the help of an
interpreter. PW36 was the interpreter. PW36 has no case that
the disclosure stated to have been made by the appellant on
the basis of which MO4 knife was recovered has been
translated by him nor has he a case that he witnessed the
recovery based on the disclosure, when the appellant was
taken to the place mentioned by him as deposed by PW40. In
the circumstances, we are constrained to hold that the
evidence tendered by PW40 as regards the disclosure on the
basis of which MO4 knife is stated to have been recovered,
would not fall within the scope of Section 27 of the Indian
Evidence Act. However, at this stage it has to be clarified that
inasmuch as there is satisfactory evidence before the Court to
infer that it was the appellant who took out MO4 knife from the
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-: 24 :-
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house from where he was apprehended and handed over the
same to the police, the evidence tendered by the Investing
Officer in this regard is admissible as a subsequent conduct of
the accused falling under Section 8 of the Indian Evidence Act.
22. As noted, it was deposed by PW1 that when
she reached the scene, Mariyamma was crying saying “എന
രക ക ൻ വ തന ണ ണല ന മ ഷ ലമ ൾക ഇത സ ഭവചത”. According to the
prosecution, the evidence tendered by PW1 in this regard is
res gestae and is therefore, relevant and admissible under
Section 6 of the Indian Evidence Act. One of the arguments
pressed into service by the learned counsel for the appellant in
this regard is that inasmuch as PW1 had not seen the appellant
slitting the throat of Nimisha, the utterance stated to have
been made by Mariyamma as deposed by PW1 after the
commission of the alleged act as referred to above, would not
fall within the scope of Section 6. In other words, according to
the learned counsel, the evidence tendered by PW1 in this
regard is only hearsay and, therefore, not admissible under
Section 6 of the Indian Evidence Act. One of us had occasion to
deal with the scope of Section 6 of the Indian Evidence Act in
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Mohanan v. State of Kerala, (2023) SCC OnLine Ker 6326. The
relevant passage of the judgment reads thus:
“20. Section 6 of the Indian Evidence Act provides that 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. Section 6 recognizes the principle
of res gestae which enables the court to admit facts which are
otherwise not admissible. Section 6 reads thus:
“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.
Illustrations
(a) A is accused of the murder of B by beating
him. Whatever was said or done by A or B or the by-
standers at the beating, or so shortly before or after it as
to form part of the transaction, is a relevant fact.
(b) A is accused of waging war against the
Government of India by taking part in an armed
insurrection in which property is destroyed, troops are
attacked, and goals are broken open. The occurrence of
these facts is relevant, as forming part of the general
transaction, though A may not have been present at all
of them.
(c) A sues B for a libel contained in a letter
forming part of a correspondence. Letters between the
parties relating to the subject out of which the libel
arose, and forming part of the correspondence in which
it is contained, are relevant facts, though they do not
contain the libel itself.
(d) The question is, whether certain goods ordered
from B were delivered to A. The goods were delivered to
several intermediate persons successively. Each delivery
is a relevant fact.”
The facts admissible under Section 6 as relevant are facts
which are so connected with the fact in issue, if not the fact in
issue, so as to form part of the same transaction, whether
they occur at the same time and place or at different times
and places. The rationale in making such facts admissible in
evidence is on account of the spontaneity and immediacy of
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such facts in relation to the fact in issue. In other words, it is
necessary that such facts must be part of the same
transaction and if it is in relation to a statement, the same
must have been made contemporaneous with the transaction
or at least immediately thereafter. The illustrations to Section
6 demonstrates the different contexts of the application of the
provision. It is trite that an illustration to a statutory provision
is a useful aid in the interpretation of the provision, though
the same does not exhaust the full content of the Section
which it illustrates nor does it curtail or expand the ambit of
the Section [See Shambhu Nath Mehra v. State of Ajmer, AIR
1956 SC 404]. If the provision is understood keeping in mind
illustration (a), it could be seen that whatever is said and
done by PW4 at the time of occurrence or so shortly after the
occurrence as to form part of the occurrence, is admissible. In
other words, the statement of PW4 would be admissible only
had the statement been made contemporaneous to the
occurrence and interwoven with the fact in issue. …..”
No doubt, if the transaction is terminated and thereafter a
statement is made narrating the transaction, the same would
not fall under Section 6 of the Indian Evidence Act. As clarified
in Mohanan, whatever said and done by the accused, victim or
bystanders in the course of commission of a crime, or so
shortly thereafter would fall within the scope of Section 6. The
term ‘transaction” used in Section 6 of the Indian Evidence Act
must be interpreted, according to us, broadly and flexibly to
encompass not merely a single act, but the entire sequence of
closely connected acts that collectively constitute the
occurrence. In the present case, the acts alleged against the
appellant namely, the trespass into the house of Thambi, the
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attempt on his part to snatch the gold chain from Mariyamma,
the manner in which the appellant dealt with Nimisha, Elias
and Abbas when they sought to prevent the commission of the
intended act, and the act of the appellant in fleeing from the
scene with a piece of the snatched chain, are a series of acts
forming the same transaction. These acts are inextricably
linked in terms of time, place, continuity, and intent, and were
clearly committed in close and immediate succession in
furtherance of a single objective. In other words, the appellant
cannot be heard to contend that the transaction was
terminated. Even assuming that the appellant is entitled to
contend that the transaction was terminated when PW1
reached the scene, he still cannot be heard to contend that the
utterance of Mariyamma as deposed by PW1 is not one that
falls within the scope of Section 6 for, the utterance was one
made so shortly after the transaction. We take this view on
account of circumstances namely that the house of Thambi is
located close to the house of PW1; that PW1 rushed to the
house of Thambi immediately on hearing the scream of
Nimisha; that PW1 heard the utterance of Mariyamma on
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reaching the house of Thambi; that the appellant was very
much present in the house at the relevant time with a
bloodstained knife in his hand and that he was still pursuing
the attempt to snatch the gold chain worn by Mariyamma.
23. Another argument advanced by the learned
counsel for the appellant is as regards the acceptability of
Ext.P60 report of the Forensic Science Laboratory. According to
the learned counsel, inasmuch as the various material objects
forwarded for forensic examination, including the knives,
clothes, nail clippings etc. were not properly packed, labelled
and sealed, the report cannot be relied on. We do not find any
merit in this argument also for, there is no evidence to
substantiate the said argument. It is all the more so since the
appellant has not cross-examined PW40, the investigating
officer who tendered evidence as regards the production of the
material objects before the Jurisdictional Magistrate and
matters related to the same.
24. We have meticulously examined the evidence
tendered by the witnesses examined on the side of the
prosecution. Among the witnesses, PW2 is an injured witness.
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It is well settled that the injured witness stands on a high
pedestal than an ordinary witness and the testimony of an
injured witness is generally considered to be very reliable, and
that convincing evidence is required to discredit an injured
witness. PW3 is the witness who overpowered the appellant
and kept him in a room. PW5 is the witness who saw the
appellant escaping from the scene with a knife in his hand.
PW6 is the witness who apprehended the appellant and
handed over his custody to the police. The oral account made
by PWs 1 to 3 was corroborated in material particulars by the
oral account of PWs 5 and 6. As noted, it is reported by the
Forensic Science Laboratory in Ext.P60 report that some of the
hair samples collected from the house where the occurrence
took place are human scalp hairs similar to the human scalp
hair of the appellant; that the bloodstains found in MO13 jeans
worn by the appellant at the time of occurrence are the
bloodstains of Nimisha; that the bloodstains found on MO12 T-
shirt worn by the appellant at the time of occurrence and the
bloodstains in the swab taken by PW24 from the hands of the
appellant on the date of his arrest are a mixture of the blood of
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Nimisha and the appellant; that the bloodstains on MO3 and
MO4 knives are a mixture of the bloodstains of Nimisha and
PW2 and that the nail clippings of the appellant contained cells
and tissues belonging to Nimisha as also the cells and tissues
of the appellant. In the absence of any explanation from the
appellant as to how the hairs similar to his hair happened to be
present at the scene of occurrence, as to how the blood of
Nimisha happened to be present in the jeans worn by the
appellant at the time when he was apprehended within hours
after the occurrence, as to how the blood of Nimisha happened
to be present in the T-shirt worn by the appellant at the time
when he was apprehended as also in the hand swab of the
appellant taken within hours after the occurrence, as to how a
mixture of the blood of Nimisha and PW2 happened to be in
MO3 and MO4 knives and as to how cells and tissues of
Nimisha happened to be present in the nail clippings of the
appellant, Ext.P60 also corroborates the oral account of PWs 1
to 3. That apart, even though it is found that there is no
satisfactory evidence to support the case of the prosecution
that MO4 knife was recovered based on a disclosure made by
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the appellant, the evidence tendered by PW40 that it was the
appellant who took out MO4 knife from the house where he
was apprehended and handed over to the police, is admissible
in evidence as a subsequent conduct of the accused falling
under Section 8 of the Indian Evidence Act. The said evidence
together with the evidence that the bloodstains contained in
MO4 knife is a mixture of the blood belonging to Nimisha and
PW2 also corroborates the oral account of PWs 1 to 3. As
noted, MO5 is the piece of the gold chain snatched by the
appellant from Mariyamma as recovered from the scene of
occurrence and MO11 is the remaining piece of the same gold
chain recovered from the appellant at the time of his arrest.
The evidence tendered by PW20 that MOs 5 and 11 are parts
of the same gold chain, also corroborate the oral account of
PWs 1 to 3.
25. At this stage, it is necessary to consider the
crucial contention taken by the learned counsel for the
appellant that there is no evidence to show that the death of
Nimisha took place in the transaction in which PW2 sustained
injuries. It was persuasively argued by the learned counsel that
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none of the witnesses saw the appellant causing the fatal
injury on Nimisha. It was also argued that the proved
circumstances do not establish that the fatal injury of Nimisha
had been caused by the appellant. No doubt, even according to
the prosecution, there is no direct evidence to prove how
Nimisha sustained the fatal injury and that the prosecution
relies only on circumstances to establish that it was the
appellant who caused the fatal injury on Nimisha. The
question, therefore, is whether the circumstances proved in the
case are sufficient to establish beyond reasonable doubt that
the fatal injury sustained by Nimisha was one caused by the
appellant. Following are the circumstances proved in the case
through the evidence of witnesses examined:
(i) that PW1, PW2 and PW3 saw the
appellant in the kitchen of the house upon reaching
there on hearing the scream of Nimisha;
(ii) that when PW1 and PW2 entered the
kitchen though at different times, both of them saw
the appellant attempting to snatch the chain of
Mariyamma with his left hand, while holding a
Crl.A.No.333 of 2024-: 33 :-
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bloodstained knife in his right hand;
(iii) that when PW1 and PW2 entered the
kitchen, there was no one else in the house other than
them and the appellant, Nimisha and Mariyamma;
(iv) that while PW2 was attempting to
overpower the appellant, he saw his mother crying
aloud, Nimisha leaning against a wall covering her
neck with a shawl, her clothes drenched in blood and
blood flowing through the floor of the kitchen as also
floors of the hall and workarea;
(v) that when PW1 entered the kitchen,
Mariyamma was crying loud saying "എന രക ക ൻ
വ തന ണ ണല ന മ ഷ ലമ ൾക ഇത സ ഭവചത";
(vi) that PW22, the doctor who conducted
the post-mortem examination on the body of Nimisha,
opined that the fatal injury sustained by her is not a
self-inflicted injury, but one that could be caused with
MO3 knife;
(vii) that MO3 knife was one seized from
the kitchen of the house immediately after the
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occurrence;
(viii) that the bloodstains contained in
MO13 jeans worn by the appellant at the time of
occurrence, belong to Nimisha and that the
bloodstains contained in MO12 T-shirt worn by the
appellant at the time of occurrence and in the swab
taken from the hands of the appellant on the date of
occurrence, after his arrest, are a mixture of blood
belonging to Nimisha and the appellant; and
(ix) that the nail clippings of the appellant
contained cells and tissues belonging to Nimisha as
also the appellant.
The circumstances enumerated above, according to us, would
form a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the
innocence of the accused and would show in all human
probability that the act has been committed by the appellant.
Needless to say, the death of Nimisha was caused by the
appellant, in the course of the same transaction in which PW2
sustained injuries.
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26. From the above evidence, according to us, it
can be safely concluded that the appellant trespassed into the
house of Thambi with the intention of committing robbery of
the gold chain of Mariyamma and attempted to snatch the
same; that the appellant slit the throat of Nimisha with MO3
knife when she tried to intervene; that when PW2 knocked
down MO3 knife out of the hand of the appellant and
attempted to overpower him, the appellant repeatedly stabbed
him with MO4 knife and that the appellant, thereafter, fled
from the scene with MO11 piece of gold chain.
27. What remains to be considered is the question
as to whether the proved facts would make out the offences
punishable under Sections 449, 392, 397, 307 and 302 IPC.
The learned counsel for the appellant has not raised any
contention as regards the offences punishable under Sections
449, 392 and 397 IPC. The arguments were raised only in
respect of the offences punishable under Sections 307 and 302
IPC. As far as the offence punishable under Section 307 IPC is
concerned, the argument was that the evidence on record
would only establish that the appellant inflicted multiple stab
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injuries on the left hand of PW2 and the said act on the part of
the appellant, would not attract the offence punishable under
Section 307 IPC.
28. In order to constitute the offence punishable
under Section 307 IPC, it has to be established that the
accused had the intention or knowledge necessary to
constitute the offence of murder and committed the act
towards his intention or knowledge. The consequence of the
actual act done for the purpose of carrying out the intention, is
irrelevant [See Parsuram Pandey v. State of Bihar, (2004) 13
SCC 189]. If the appellant had intended to cause the death of
the injured or had the requisite knowledge that his act would
amount to murder, the offence under Section 307 is made out.
The intention, however, has to be gathered from the
circumstances like motive, the nature of the weapon, nature of
injury, severity of the blow etc.
29. The charge framed against the appellant for
the offence punishable under Section 307 IPC reads thus:
“Fourthly, that you on the above date, time and place in the
course of the same transaction attempted to cause death of
Elias, husband of Leela by stabbing him with another knife
taken from the kitchen which blow was blocked by Elias which
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resulted in injury to his left hand and thereby committed
offence punishable under Section 307 of the above Code.”
As revealed from the charge, the case of the prosecution is
that the injuries inflicted by the appellant on PW2 were injuries
intended to cause his death and it is on that basis, he was
charged under Section 307 IPC. As found by us, the appellant
trespassed into the house of Thambi with the intention of
snatching the gold chain of Mariyamma and when Nimisha
attempted to prevent the appellant from doing so, the
appellant even went to the extent of slitting the throat of
Nimisha. The evidence tendered by PW22 reveals that the
appellant slit the throat of Nimisha to a depth of 3.5 cms. The
said act on the part of the appellant would show that the
appellant intended to cause the death of the person who stood
in his way in snatching the gold chain. It was at the point of
time when the appellant again attempted to snatch the gold
chain after disabling Nimisha, that PW2 intervened and
knocked down the knife carried by him and pushed him to a
corner of the kitchen. It was at that point of time, the appellant
stabbed PW2 at his abdomen. The evidence tendered by PW2
in this regard reads thus:
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“ഞ ൻ ആ ത തട നതറ പ ച. ത തറയ ൽ വ&ണ. പത യ ഞ നമ യ മൽപ ടത
നടന. ഞ ൻ അയ ന/ അടക/യനട ഭ ഗലതക ഒതക ന ർത . സ ബ ൻ ലമൽ ത
ഇര ക ത ഞ ൻ ണ യ രന. ആ ത നയടത പത എന കത . കത യത എന8
പളയ ണ . ഞ ൻ ഇടത ക ന ണ തടത. പത അലത യ ൽ തന പലതവണ കത .
ഞ ൻ ക മ റ യ യ രന. അവൻ കത യത എന8 പളയ ണ. ന നള
ഉലBശത ൽ തന യ ണ കത യത."
The evidence aforesaid that the blows were intended towards
the abdomen of PW2, has not been discredited by the
appellant in any manner. That apart, MO4 weapon with which
the appellant stabbed PW2 is a knife, the blade portion of
which has a length of 17.5 cm and width of 3.1 cm. It was
deposed by PW2 that the stabs inflicted by the appellant
pierced through his hand and the said evidence would indicate
the force at which the appellant inflicted the injuries, that too
with a weapon having a size referred to above. Having regard
to the facts and circumstances of the case, we are inclined to
hold that the appellant intended to cause the death of PW2
also, while stabbing him. Needless to say, the argument
advanced by the learned counsel for the appellant in this
regard is only to be rejected and we do so.
30. As far as the offence punishable under Section
302 IPC is concerned, the contention raised by the learned
counsel for the appellant is that it is not possible to infer from
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the proved facts that the appellant intended to cause the
death of Nimisha. No doubt, it cannot be said that the
appellant intended to cause the death of Nimisha when he
trespassed into the house of Thambi, especially when there is
no evidence to indicate that he carried any weapon with him
when he trespassed into the said house. From the available
evidence, especially the evidence of PWs 1 and 2 that when
they reached the scene, the appellant was attempting to
snatch the gold chain worn by Mariyamma, what could be
inferred is that the intention of the appellant, at that time, was
only to commit either theft or robbery. In the absence of any
case for the appellant that Nimisha had any enmity to attack
him, it could certainly be inferred that Nimisha must have
attempted to prevent the appellant from snatching the gold
chain of Mariyamma. It is settled that the intention to commit a
crime being a state of mind, the same can only be inferred
from the facts and circumstances of each case. It is also settled
that there would be changes in the intention depending on the
changes in the facts and circumstances also. From the
available materials in the present case, what could be inferred
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is only that the appellant must have been confronted with a
situation in which he could not snatch the gold chain and flee
from there without disabling Nimisha from preventing him from
doing so and that the alleged act is one committed under
those circumstances. No doubt, in order to disable a person
from preventing another from doing an act, it is not necessary
to cause his death. At this stage, according to us, the nature
and manner of the injury caused by the appellant to Nimisha
and the weapon with which the injury was caused, assumes
relevance. The materials indicate that MO3 is a kitchen knife
with a length of 14 cm and a width of 3 cm for its blade
portion. The nature of injury inflicted by the appellant as come
out from the evidence of PW22 is that it is an incised horizontal
wound having a length of 15.5 cm and a depth of 3.5 cm on
the front of the neck across the midline. Such a wound can
only be caused by slitting the throat. If one slits the throat of
another, a vital part of the body, to a depth of 3.5 cm with a
kitchen knife, it can certainly be inferred that he/she intended
to cause the death of the person. The argument aforesaid of
the learned counsel for the appellant is also liable to be
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rejected and we do so.
31. It was also argued by the learned counsel,
without prejudice to the contention that the proved facts do
not make out the offence punishable under Section 302 IPC,
that if the elements of murder as defined under Section 300
IPC is made out on the proved facts, the appellant is entitled to
the benefit of Exception 4 to Section 300 and that he cannot,
therefore, be convicted for the offence punishable under
Section 302 IPC, but can be convicted only for the offence
punishable under Section 304 IPC. Exception 4 to Section 300
IPC reads thus:
Exception 4.–Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and without the offender’s
having taken undue advantage or acted in a cruel or unusual
manner.
It is now trite that the four ingredients to be satisfied to avail
the benefit of Exception 4 to Section 300 IPC are – (i) there
must be no premeditation; (ii) there must have been a sudden
fight upon a sudden quarrel; (iii) the act must have been
committed in the heat of passion and (iv) the offender must
not have taken undue advantage or acted in a cruel or unusual
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manner. It is not sufficient if only some of the ingredients of
Exception 4 are established to avail the benefit of the same.
On the other hand, all the four ingredients ought to be
established from the materials on record. Even if it is assumed
that the act of the appellant in slitting the throat of Nimisha
was not a pre-meditated act, the proved facts in the case do
not establish that there was a sudden fight upon a sudden
quarrel for, there was no occasion at all, between the appellant
on one side and Nimisha on other side to pick up a sudden
quarrel. Similarly, the proved facts do not establish that the act
was one committed in the heat of passion for, it was an act
committed by the appellant to disable Nimisha who prevented
him from snatching the gold chain of Mariyamma. Likewise, the
proved facts would establish that it is a case where the
appellant took undue advantage of the situation that the
deceased and Mariyamma were incapable of resisting him from
committing the intended act and in addition, he acted in a
cruel and unusual manner. Needless to say, the appellant
cannot be heard to contend that he is entitled to the benefit of
Exception 4 to Section 300 IPC.
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In the circumstances, the appeal is devoid of merits
and the same is accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
ds