Kerala High Court
Babu vs State Of Kerala on 28 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TH
MONDAY, THE 28 DAY OF JULY 2025 / 6TH SRAVANA, 1947
CRL.A NO. 1414 OF 2019
CRIME NO.284/2014 OF Sasthamcotta Police Station, Kollam
AGAINST THE JUDGMENT DATED IN SC NO.963 OF 2017 OF ADDITIONAL
SESSIONS COURT - VI, KOLLAM ARISING OUT OF THE JUDGMENT IN CP NO.22 OF 2016
OF JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMCOTTA
APPELLANT/1st ACCUSED:
BABU, AGED 45 YEARS, S/O.BHASKARAN,
AJI BHAVANAM, PALLICKAL MURI,
PALLICKAL VILLAGE, ADOOR,
PATHANAMTHITTA PIN-690504.
BY ADVS.
SRI.K.SIJU
SHRI.S.ABHILASH
SMT.S.REKHA KUMARI
SMT.S.SEETHA
SMT.ANJANA KANNATH
RESPONDENTS/STATE:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-31.
2 THE STATION HOUSE OFFICER,
SOORANADU POLICE STATION,
KOLLAM DISTRICT, PIN-690522.
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BY ADV RENJITH T R, SR. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.06.2025, THE
COURT ON 28.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
K. V. Jayakumar, J.
This Criminal Appeal is preferred by the accused No.1 in S.C. No.963/2017
on the files of the Additional District and Sessions Court-VI, Kollam, dated
30.10.2019. The appellant herein, along with three other accused, stood trial
before the Sessions Court for the offences punishable under Sections 447, 302,
201, and 34 of the IPC. The learned Sessions Judge found the appellant guilty for
the offences punishable under Sections 447 and 302 IPC. However, the trial court
acquitted accused Nos. 2 and 3 of all the charges. Accused No.4 (Sadasivan) died
at the crime stage itself. The trial court acquitted the appellant/accused No.1 for
the offence punishable under Section 201 of the Indian Penal Code.
2. The learned Sessions Judge sentenced the appellant to undergo
imprisonment for life and to pay a fine of Rs. 10,000/-for the offence punishable
under section 302 of the IPC. He was also sentenced to undergo simple
imprisonment for three months for the offence punishable under Section 447 of the
IPC.
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3. Impugning the judgment, the appellant preferred this criminal appeal
under Section 374(2) of the Cr.PC.
Prosecution Case:
4. Accused No. 2, Bindhu, is the wife of the accused No.1, Babu
(appellant). Accused Nos. 3 and 4 are the mother and father of accused No.2,
Bindhu, respectively. The deceased Lalitha is the sister of Sadasivan, accused No.4.
The prosecution alleges that the relationship between the deceased Lalitha and her
brother Sadasivan was strained due to a property dispute. Their ancestral property
remained undivided, and no partition was effected.
5. The prosecution alleges that, on the fateful day on 21.02.2014,
accused Nos. 2 and 3 trespassed into the property of the deceased Lalitha situated
at Mukalumthara and picked up a quarrel. Lalitha restrained accused Nos. 2 and 3
from passing through her property. In the meantime, appellant also trespassed into
the property of the deceased with a spade and in furtherance of the common
intention of all the accused, at about 12 noon, appellant inflicted cut injuries on
Lalitha’s head with MO-1, spade, causing fracture to her skull, and she fell down.
Thereafter, appellant hit Lalitha on her chest with the spade handle.
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6. The deceased Lalitha was taken to the Taluk Hospital, Adoor, by her
son, Liju (PW3), accused No.4, and PW2 (Ravi). Since the injuries caused to the
deceased were serious, she was referred to the Medical College, Kottayam, for
better treatment. The deceased succumbed to the injuries on 04.03.2014, while
undergoing treatment at Medical College Hospital, Kottayam.
7. The FIS was lodged by PW3 (Liju), son of the deceased on
23.02.2014 at about 3.00 pm. On the basis of the information, PW13 registered
Ext.P7 FIR and prepared Ext.P8 scene mahazar. PW15 (Mohandas), the Circle
Inspector of Police, Sasthamkotta, took up the investigation on 24.02.2014. He
arrested accused Nos. 1 and 4 on that day itself and recorded the confession
statement of accused No.1(Babu). On the basis of the disclosure statement made
by the appellant, he recovered MO1 spade (കുന്താലി) from the firewood shed situated
on the eastern side of the house of Sudharmani. Ext.P2(a) is the relevant portion
of the disclosure statement.
8. PW16, the Circle Inspector of Police, took up the investigation on
24.02.2014 and prepared Ext.P6 Inquest Report in the presence of the witnesses
on 04.03.2014 from the Medical College Hospital, Kottayam. He filed Ext.P14 report
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incorporating Section 302 IPC. After completing the investigation final report was
laid before court.
9. PW16 arrested accused Nos. 2 and 3 in the presence of a woman
police constable. He questioned PW7 (Dr. Mahadevan), who treated the deceased
at the Taluk Hospital, Adoor, and obtained Ext.P3, Treatment Certificate, and also
questioned PW8 (Dr. Rajeev), the Associate Professor of Forensic Department at
Medical College Hospital, Kottayam who conducted the autopsy of the deceased
and issued Ext.P4, Postmortem Certificate.
10. After completing the preliminary steps, the case was committed to
the Court of Sessions. The Sessions Court, Kollam, made over the case to the
Additional District and Sessions Court-VI for trial and disposal. Accused No.4 died
during the committal stage, and the charge against him stands abated.
The proceedings before the trial Court
11. Accused Nos. 1 to 3 appeared before the trial court. The learned
Sessions Judge, after hearing both sides, framed charge under Sections 447, 302,
and 201 r/w 34 of the IPC. The charge was read over and explained to the
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accused. They pleaded not guilty and claimed to be tried.
12. Thereafter, the prosecution examined PWs. 1 to 17 and marked
Exts.P1 to P20. MO1-spade was also identified and marked. After the close of the
prosecution evidence, the accused were examined under Section 313(1)(b) of the
Cr.PC. They denied the incriminating circumstances put to them and pleaded
innocence. No defence evidence was adduced. The learned Sessions Judge, after
a full-fledged trial, found the appellant guilty and accordingly convicted and
sentenced him as aforesaid. The learned Sessions Judge, however, acquitted
accused Nos. 2 and 3 of all the charges.
The submissions of the learned counsel for the appellant
13. Sri. Siju K., the learned counsel for the appellant, submitted that the
trial court convicted and sentenced the appellant without proper appreciation of
the evidence. There was an unexplained delay of two days in lodging the first
information statement, which is fatal to the prosecution story. The trial court erred
in appreciating the evidence of PW3 (Liju) in the correct perspective. The version
of PW3 (Liju) that the deceased told him that appellant (Babu) inflicted injuries
with a spade, would not come within the purview of Sections 6 and 32 of the
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14. The learned counsel further pointed out that there is no direct
evidence relating to the incident. The only eye-witness, PW14 (Ponnamma), turned
hostile to the prosecution. The conviction, based on the dying declaration of Lalitha
to PW3 (Liju), without any corroboration, cannot be sustained. Placing reliance on
the judgment in Ebi @ Philip Ninan v. State of Kerala1, the counsel for the
appellant submitted that the prosecution has to prove the fit mental state of mind
of the declarant at the time of making the dying declaration. The chain of
circumstantial evidence in this case is incomplete and broken. It is further
submitted that the trial court ought not to have convicted the appellant based on
the interested testimony of PWs. 1 to 4 and 11. The recovery of MO1-spade is
also not admissible in evidence. It is further submitted that the prosecution has
failed to establish the motive for the alleged offence.
15. Relying on the dictum laid down in Balachandran Pillai v. State of
Kerala2, the counsel argued that the non-furnishing of some of the previous
statements or part of the statements would vitiate the trial.
1 2024 (3) KHC 327 2 2005 KHC 284 Crl.Appeal No. 1414/2019 2025:KER:54897 9
The submissions of the learned Public Prosecutor
16. Sri Ranjith T.R., learned Public Prosecutor, submits that the
prosecution has succeeded in proving the charge against the appellant beyond a
reasonable doubt. The evidence of PW3 as to the cause of death is relevant under
Section 6 (res gestae) and Section 32 (dying declaration) of the Indian Evidence
Act. There is no rule of law or prudence that a dying declaration requires
corroboration. The trial court appreciated the evidence in its correct perspective
and arrived at a proper conclusion. No interference from this court, whatsoever, is
warranted in this matter.
The compendium of the prosecution case
17. PW1 (Geetha) is a neighbour of the deceased. She said that, on
21.02.2014 at about 12 noon, PW4 (Pradeepkumar) came to her house and told
her that Lalitha was hacked and lying in her property. She rushed to the scene of
the occurrence, wherein she found the deceased lying in a pool of blood. Accused
No.2 (Bindhu) and Accused No.3 (Sarojini) were standing nearby. She identified
accused Nos. 2 and 3.
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18. After a short while, PW3 (Liju), the son of the deceased, arrived at
the scene of the occurrence. The deceased asked him to bring some water.
Accordingly, PW3 brought water and sprinkled it on her face. She opened her eyes
and drank a little. The deceased then said something to PW3, but it was not
audible. In the meantime, PW2 (Ravi) and Accused No. 4 (Sadasivan) also reached
the scene. The deceased was taken to the hospital by accused No. 4, along with
PW3 and PW2. PW1 asked accused Nos. 2 and 3 what had happened, but they did
not respond.
19. Later, PW1 came to know that the deceased, Lalitha, had succumbed
to the injuries at Kottayam Medical College. According to PW1, appellant (Babu)
had inflicted the injuries on Lalitha using a spade. She identified the appellant in
the dock. During cross-examination, PW1 stated that Lalitha opened her eyes when
her son gave her water, but did not do so when PW1 attempted to give her water.
PW1 further stated that she could not understand what Lalitha said to her son.
20. PW2, Ravi, and PW4, Pradeep Kumar, reached the scene of
occurrence immediately after the incident. Upon arrival, they saw the deceased
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lying in a pool of blood with head injuries. PW2 further testified that PW3, Liju,
arrived at the scene shortly thereafter. When he sprayed water on the face of the
deceased, she told her son that Babu had hacked her on the head with a spade.
Thereafter, he, along with PW3 and accused No.4 (Sadasivan), took the deceased
to the hospital in an auto rickshaw to Taluk Hospital Adoor. From the Taluk
Hospital, Adoor, she was referred to the Medical College Hospital, Kottayam. PW2
further stated that, while the injured was taken to the Medical College Hospital,
Kottayam in an ambulance, the accused No.4 (Sadasivan) told PW3 (Liju) not to
divulge that appellant (Babu) hacked his mother with a spade and asked him to
say that the spade fell on her head while hitting on the branch of a tree. In
cross-examination, PW2 stated that the deceased, Lalitha, said something to her
son, but he could not hear it clearly.
21. PW4 (Pradeep Kumar) deposed that upon receiving information from
PW14 (Ponnamma) that Lalitha had been hacked with a spade, he rushed to the
scene of occurrence, wherein he saw the injured Lalitha lying in a pool of blood in
a supine position, on her property. She was later taken to the hospital in an
auto-rickshaw. According to PW4, the motive behind the incident was enmity
between the accused and Lalitha, arising out of a property dispute. He further
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stated that when he saw the injured Lalitha, she was in a condition to speak.
22. PW5 (Sunil Kumar) was examined to prove that there was a property
dispute between the deceased Lalitha and her brothers. PW5 was the office bearer
of SNDP, Anayadi Branch. The deceased was a member of the Anayadi branch of
SNDP. He testified that the brother of the deceased had not been effectively
partitioned from their ancestral property. The deceased had filed a complaint at the
SNDP branch office, alleging that her brothers were denying her rightful share in
the property.
23. The said complaint was given one year prior to the incident. On
receipt of the complaint, PW5 and some other office bearers met accused No.4
(Sadasivan). But the issue was not resolved since accused No.4 did not take a firm
stand. PW5 categorically stated that Lalitha and Sadasivan were inimical terms in
connection with the property dispute.
24. PW6 (Akhilesh) is the witness to Ext.P2 recovery mahazar. He
admitted his signature in Ext.P2. He says that he could identify the spade. But he
further stated that he was not aware of the contents of Ext.P2. He made it clear
that he put his signature on the recovery of the weapon for the offence.
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25. PW7 (Dr. Mahadevan) is the doctor who treated the deceased in the
Medical College Hospital, Kottayam. He issued Ext.P3 treatment certificate on
10.03.2014 and noted the following injuries in Ext.P3;
1.Frontal bone fracture
2.Left frontal extradural haemorrhage
3.right fronto temporo parietal subdural haematoma
4.Diffuse brain injury.
26. According to PW7, the patient was admitted with an alleged history of
trauma to the head with an axe. He testified that despite the medical treatment, he
could not save the life of Lalitha.
27. PW8 (Dr. Rajeev) is the Associate Professor, Forensic Department,
who conducted the autopsy of the deceased and issued Ext.P4 postmortem
certificate. He has noted the following three ante-mortem injuries;
1. A stapled lacerated wound, ‘C’ shaped, 13 cm long on
the right side top of head 2 cm outer to midline and 5
cm above the root of nose. Scalp around it showed
contusion over an area 18 x 16 x0.5 cm. Vault of skull
showed depressed fracture fragmentation involving the
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right frontal and parietal bones. Base of skull was
fractured Involving the right side of middle cranial
fossa. Brain showed extradural haematoma 11 x 10
x0.5 cm, on the right fronto-temporo-parietal region
and 6 x 4 cm on the left temporal region. There was
bilateral thin film of subdural and subarachnoid
haemorrhage.
2. Abraded contusion 7 x 5 cm on the middle of chest 5
cm below the suprasternal notch.
3. Abrasion 10 x 7 cm on the upper outer quadrant of
right buttocks.
28. He opined that injury No.1 is sufficient, in the ordinary course of
nature, to cause death. He would further say that injury Nos. 1 and 2 could be
caused by a heavy blunt object like MO1.
29. PW9 (Dr. Bindu Samuel) was the Casualty Medical Officer at the
Government Hospital, Adoor. She examined the deceased, Lalitha, on 21.02.2014
and issued Ext.P5 wound certificate. According to PW9, the history given by the
bystander was that the injury resulted from the fall of a spade from a height
(“കുന്താലി മുകളിൽ നിന്നും വീണതിൽ വെച്ച്”). The patient was referred to a higher centre.
30. PW10 (Gopika G.R.) is the Scientific Assistant in D.C.R.B., Kollam City.
She collected the samples of blood stains, packed, sealed, and handed them over
to the Investigating Officer for forensic examination.
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31. PW11, Raveendran, is another witness who reached the place of
occurrence immediately after the incident. He testified that, while he was sitting in
the house of Sudharmini (CW5), PW4 (Pradeepkumar), PW14 (Ponnamma)
approached them and told them that “Babu hacked Lalitha”. The incident took
place in the property of the deceased. He rushed to the place of occurrence along
with PW4. When he reached the spot, he saw the appellant, Babu, coming with a
spade. He would further say that when PW3 sprayed water on the face of Lalitha,
she opened her eyes and said something to him. At that time, PW2 (Geetha) asked
Liju what the injured had told him. PW3 replied that Babu hacked Lalitha with a
spade. In his evidence, he stated that often there were some quarrels between
accused No.4 (Sadasivan) and the deceased in connection with their property
dispute.
32. PW12 (Mohan Kumar) is the witness to Ext.P6 inquest report. PW14
(Ponnamma) is the sole eyewitness to the alleged crime. At the time of giving
evidence, she was aged 78 years. She did not fully support the prosecution. She
testified that the deceased Lalitha was her neighbour. When a specific question
was asked whether she saw the incident, she replied that she saw the incident. But
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she forgot who beat the deceased. When she was recalled and re-examined on
19.06.2019, she said that the deceased was beaten by the appellant (Babu) with a
spade. She identified the appellant in the dock. She is not sure whether the
weapon of offence was MO1 spade. She was declared hostile. Later, during the
cross-examination, she reiterated that she did not remember what had happened
on that day. PW17 is the Village Officer who prepared Ext.P18 scene plan.
The cause of death – whether homicidal
33. The learned Sessions Judge, after a detailed evaluation of evidence,
found that the death of Lalitha was homicidal. PW3 (Liju) testified that on
21.02.2014 when he came back home, his mother Lalitha was lying in their
property with a head injury. PWs 1, 2, 4, and 11 came to the scene of occurrence
immediately after the incident. They had also seen the deceased lying in a pool of
blood with injuries on her head. PW8 (Dr.Rajeev), who conducted the autopsy has
noted three injuries on the body of the deceased. PW8 (Dr.Rajeev) opined that
injury No.1 is sufficient to cause death in the ordinary course. There is
overwhelming evidence in this matter to infer that the cause of death is homicidal.
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Analysis of evidence
34. Now, we shall proceed to evaluate the evidence of the material
witnesses in the light of the arguments advanced by the learned counsel for the
appellant. The material witnesses in this case are PWs 1 to 5, 8, and 11. The entire
prosecution story revolved around the evidence of PW3 (Liju), the son of the
deceased. The trial court believed his version that when he sprayed water on the
face of his mother, she opened her eyes and told him that “Babu hacked her with a
spade”. The crucial question involved in this appeal is whether the said statement
is a res gestae under Section 6 or a dying declaration under Section 32 of the
Indian Evidence Act. The learned Sessions Judge held that this statement is
relevant both as res gestae and as a dying declaration.
35. The learned counsel for the appellant submitted that the statement of
the deceased immediately after the incident was not relevant under Section 6 of
the Indian Evidence Act, since it does not form part of the same transaction.
Further, it is not relevant under Section 32 of the Indian Evidence Act as a dying
declaration, since no evidence is forthcoming as to the mental condition of the
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declarant: whether she was conscious and she was able to speak.
36. For further discussion, it will be useful to extract Sections 6 and 32 of
the Indian Evidence Act.
“6. Relevancy of facts forming part of same transaction.
Facts which, though not in issue, are so connected with a fact in
issue as to form part of the same transaction, are relevant whether
they occurred at the same time and place or at different times and
places.
32. Cases in which statement of relevant fact by person who
is dead or cannot be found, etc., is relevantStatements, written or verbal, or relevant facts, made by a person
who is dead, or who cannot be found, or who has become incapable
of giving evidence, or whose attendance cannot be procured, without
an amount of delay or expense which under the circumstances of the
case appears to the Court unreasonable, are themselves relevant
facts in the following cases(1) When it relates to cause of death. – When the statement is
made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in cases
in which the cause of that person’s death comes into question.Such
statements are relevant whether the person who made them was or
was not, at the time when they were made, under expectation of
death, and whatever may be the nature of the proceeding in which
the cause of his death comes into question.
37. At this juncture, it would be apposite to refer to the law laid down by
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the Apex Court with regard to Section 32(1) and Section 6 of the Indian Evidence
Act.
38. In Khushal Rao v. State of Bombay3, the Hon’ble Apex Court laid
down the following principles as to the circumstances under which a dying
declaration may be accepted without corroboration. Paragraph 16 of Khushal
Rao‘s case (supra) reads as under :
“16. On a review of the relevant provisions of the Evidence Act
and of the decided cases in the different High Courts in India and in this
Court, we have come to the conclusion, in agreement with the opinion of
the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be
laid down as an absolute rule of law that a dying declaration cannot form
the sole basis of conviction unless it is corroborated; (2) that each case
must be determined on its own facts keeping in view the circumstances
in which the dying declaration was made; (3) that it cannot be laid down
as a general proposition that a dying declaration is a weaker kind of
evidence than other pieces of evidence; (4) that a dying declaration
stands on the same footing as another piece of evidence and has to be
judged in the light of surrounding circumstances and with reference to
the principles governing the weighing of evidence; (5) that a dying
declaration which has been recorded by a competent Magistrate in the
proper manner, that is to say, in the form of questions and answers, and,
as far as practicable, in the words of the maker of the declaration,
stands on a much higher footing than a dying declaration which depends
upon oral testimony which may suffer from all the infirmities of human
memory and human character, and (6) that in order to test the reliability
of a dying declaration, the court has to keep in view, the circumstances
like the opportunity of the dying man for observation, for example,3
1957 SCC OnLine SC 20
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whether there was sufficient light if the crime was committed at night;
whether the capacity of the man to remember the facts stated, had not
been impaired at the time he was making the statement, by
circumstances beyond his control; that the statement has been
consistent throughout if he had several opportunities of making a dying
declaration apart from the official record of it; and that the statement
had been made at the earliest opportunity and was not the result of
tutoring by interested parties.”
39. In Naeem v. State of U.P.,4, the Hon’ble Apex Court, referring to
Atbir v. Government of NCT of Delhi[(2010)9 SCC 1] reiterated the factors to be
taken into consideration while resting the conviction on the basis of a dying
declaration. Paragraph 13 of the Naeem‘s case (supra ) reads as under :
“13. Undisputedly, in the present case, the conviction is based
solely on the dying declaration (Ext. Ka-6). The law with regard to
conviction on the sole basis of dying declaration has been considered
by this Court in a catena of judgments. After considering the earlier
judgments, this Court, in the case of Atbir v. Government of NCT of
Delhi1, has laid down certain factors to be taken into consideration
while resting the conviction on the basis of dying declaration. It will
be apposite to refer to para (22) of the said judgment, which reads
thus:
“22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it
inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit
state of mind at the time of making the statement and that4
2024 SCC OnLine SC 237
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it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and
voluntary, it can base its conviction without any further
corroboration
(iv) It cannot be laid down as an absolute rule of law that the
dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration is
merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be
acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the
deceased was unconscious and could never make any
statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the
details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in
a fit and conscious state to make the dying declaration,
medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true
and free from any effort to induce the deceased to make a
false statement and if it is coherent and consistent, there
shall be no legal impediment to make it the basis of
conviction, even if there is no corroboration.”
40. In Gentela Vijayavardhan Rao and Another v. State of A.P.5,
the Apex Court observed in paragraph 15 of the judgment as under:
“15. The principle of law embodied in S.6 of the Evidence Act is
usually known as the rule of res gestae recognised in English law.
The essence of the doctrine is that a fact which, though not in issue,5
1996 KHC 965
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is so connected with the fact in issue “as to form part of the same
transaction” becomes relevant by itself. This rule is, roughly speaking
an exception to the general rule that hearsay evidence is not
admissible. The rationale in making certain statement on fact
admissible under S.6 of the Evidence Act is on account of the
spontaneity and immediacy of such statement or fact in relation to
the fact in issue. But it is necessary that such fact or statement must
be part of the same transaction. In other words, such statement
must have been made contemporaneous with the acts which
constitute the offence or atleast immediately thereafter. But if there
was an interval, however slight it may be, which was sufficient
enough for fabrication then the statement is not part of res gestae.
In R. v. Lillyman (1896 (2) QB 167) a statement made by a raped
woman after the ravishment was held to be not part of the res
gestae on account of some interval of time lapsing between making
the statement and the act of rape. Party Counsel while considering
the extent upto which this rule of res gestae can be allowed as an
exemption to the inhibition against hearsay evidence, has observed
in Teper v. Reoinam, (1952 (2) All ER 447), thus :
“The rule that in a criminal trial hearsay evidence is admissible if it
forms part of the res gestae is based on the propositions that the
human utterance is both a fact and a means of communication and
that human action may be so interwoven with words that the
significance of the action cannot be understood without the
correlative words and the dissociation of the words from the action
would impede the discovery of the truth. It is essential that the
words sought to be proved by hearsay should be, if not absolutely
contemporaneous with the action or event, at least so clearly
associated with it that they are part of the thing being done and so
an item or part of the real evidence and not merely a reported
statement.”
41. The observation in Gentela Vijayavardhan Rao‘s case (supra) is
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reiterated in Sukhar v. State of U.P.6 and Balu sudham Khalde v. State of
Maharashtra7.
42. In the case on hand, the deceased divulged the cause of her death,
i.e., Babu (appellant) hacked her, after half an hour of the incident. Such a
statement is not a spontaneous one, so as to form part of the same transaction.
Applying the principles laid down in Gentela Vijayavardhan Rao‘s case (supra),
we are clear in our mind that the statement of the deceased would come within
the ambit of Section 6 of the Indian Evidence Act. The evidence of PW3 would
also indicate that his mother spoke to him about the cause of her death in a fit
state of mind. The evidence of PW3 appears to be natural, truthful, and
trustworthy.
43. The next contention of the appellant is that there is a delay of two
days in lodging the FIS, which is fatal to the prosecution story. The alleged
occurrence was on 21.02.2014 at 12 noon. The FIS, in this case, was lodged on
23.02.2014 at about 3.00 p.m. The reason for the delay has been explained by
PW3 in Ext.P1.
6 2000 KHC 484 7 2023 KHC 6346 Crl.Appeal No. 1414/2019 2025:KER:54897 24 44. In Ext.P1, first information statement, it is stated by PW3 that his
father deserted him when he was of tender age. There was a property dispute
between his family and that of his maternal uncle, accused No.4. It is stated that
when PW3 (Liju) came back to his home on 21.02.2014 at about 12.30 p.m., he
saw his mother lying in a pool of blood. At that time, accused No.2 (Bindhu) told
him that “Your mother is lying here, go and take her”. In the meantime, PW4
(Pradeep Kumar) hired an auto rickshaw and they took his mother to the
Government Hospital, Adoor, and from there, she was referred to the Medical
College Hospital, Kottayam, for better treatment.
45. His maternal uncle (Sadasivan), while taking his mother to the
Medical College Hospital, Kottayam, told him not to divulge the actual incident to
the doctors and asked him to tell the doctor that a spade fell accidentally on the
head of his mother. Otherwise, his mother would not get proper treatment, which
would result in her death. Believing the words of his maternal uncle, he spoke to
the doctor as instructed by his uncle. It is further stated in the first information
statement that accused Nos. 1 to 4 trespassed into their property and inflicted a
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cut injury on the head of his mother. The incident was witnessed by some of the
neighbours. It is stated that the mother is still in the ICU of the Medical College
Hospital, Kottayam, in an unconscious state. The reason for the delay in lodging
the first information statement was that he was accompanying his mother in the
hospital, and he thought that the intimation would be passed from the hospital to
the police. He reiterated the same version in his evidence.
46. At the time of the alleged occurrence, PW3 (Liju) was 15 years old.
His father had deserted him at a tender age. On a fine morning, when he returned
from school at about 12:30 p.m., he saw his mother being hacked and lying in a
pool of blood. The alleged assailants were none other than his maternal uncle,
aunt, and cousin. It is pertinent to note that no one took the injured to the hospital
until the boy arrived from school, approximately half an hour after the incident.
The relatives who are expected to support the boy are the alleged assailants. In
such a circumstance, the boy had given priority to save the life of his mother rather
than informing the police. Therefore, we are of the firm view that the delay of two
days is properly explained by the prosecution.
47. The next contention advanced by the learned counsel for the
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appellant is that the trial court ought to have discarded the interested testimony of
PWs. 1 to 4 and 11.
48. In Dalbir Kaur v. State of Punjab8, the Apex Court held that
evidence of an interested witness does not suffer from any infirmity as such, but
the Courts require, as a rule of prudence, not as a rule of law, that the evidence of
such witnesses should be scrutinized with a little care.
49. In Aslam Alias Imran v. State of Madhya Pradesh9, the Hon’ble
Apex Court observed that no doubt that merely a witness being an interested
witness cannot be a ground for discarding his testimony. However, the evidence of
such a witness is required to be scrutinized with greater caution and
circumspection.
50. It is trite law that relationship and interestedness, that by itself are
insufficient to discard the testimony of witnesses, if it otherwise inspires the
confidence of the Court. The testimony of a relative or interested person is to be
examined and scrutinized with great caution and circumspection.
51. We have carefully scanned and re-assessed the evidence of PWs 1 to
8
(1976)4 SCC 158
9
2025 KHC 6275
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4 and 11. PW3 would categorically say that, when he sprayed the water on the
face of the deceased, she opened her eyes and uttered the words ‘Babu hacked
her with a spade’ (മോനെ, ബാബു കൂന്താലി കൊണ്ട് അടിച്ചു).
52. The evidence of PW3 (Liju) appears to be natural, trustworthy, and
credible. Moreover, the evidence of PWs 1, 2, 4, and 11 also gave a consistent
version about the incident. All of them reached the place of occurrence
immediately after the incident. It is true that they could not understand what the
mother whispered to her son about the alleged cause of death. However, they
would categorically say that, when the boy sprayed water on the face of his
mother, she opened her eyes and uttered some words.
53. On a careful scrutiny and reassessment of evidence, we are unable to
accept the argument advanced by the counsel for the appellant that the
testimonies of PWs. 1 to 4 and 11 are to be discarded as interested witnesses.
54. The next argument advanced by the learned counsel for the appellant
is that the sole eyewitness, PW14 (Ponnamma), turned hostile to the prosecution.
The hostility of the sole eye witness is fatal to the prosecution. On a careful
analysis of the evidence of PW14, it could be seen that she supported the story of
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prosecution to some extent. PW14 (Ponnamma) is a septuagenarian. She would
say that the cut injury on the head of Lalitha was inflicted with a spade. She
identified the appellant (Babu) in the dock. She would say that she did not
remember whether it was MO1 spade, with which the injury was inflicted.
55. In Govindaraju @ Govinda v. State by Sriramapuram P. S. and
Another10, the Hon’ble Apex Court observed in paragraph 20 as under:
“20. It is also not always necessary that wherever the witness
turned hostile, the prosecution case must fail. Firstly, the part of the
statement of such hostile witnesses that supports the case of the
prosecution can always be taken into consideration. Secondly, where
the sole witness is an eye – witness who can give a graphic account
of the events which he had witnessed, with some precision cogently
and if such a statement is corroborated by other evidence,
documentary or otherwise, then such statement in face of the hostile
witness can still be a ground for holding the accused guilty of the
crime that was committed. The Court has to act with greater caution
and accept such evidence with greater degree of care in order to
ensure that justice alone is done. The evidence so considered should
unequivocally point towards the guilt of the accused.
56. In Goverdhan v. State of Chhattisgarh11, the Apex Court held
that merely because the witnesses turned hostile does not necessarily mean that
their evidence has to be thrown out entirely, and what is supportive of the
10
2012 KHC 4174
11
2025 KHC 6042
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prosecution certainly can be used. Paragraphs 76 and 77 of Goverdhan‘s case
(supra) read thus:
“ 76. However, it is also to be noted that merely because the
witnesses turn hostile does not necessarily mean that their
evidence has to be thrown out entirely and what is supportive of
the prosecution certainly be used. In Gangadhar Behera v. State of
Orissa, 2002 (8) SCC 381, it was observed as following: –
“15. To the same effect is the decision in State of Punjab v. Jagir
Singh (1974 (3) SCC 277 : 1973 SCC (Cri) 886) and Lehna v.
State of Haryana (2002 (3) SCC 76 : 2002 SCC (Cri) 526). Stress
was laid by the appellant – accused on the non – acceptance of
evidence tendered by some witnesses to contend about
desirability to throw out the entire prosecution case. In essence
prayer is to apply the principle of falsus in uno, falsus in omnibus
(false in one thing, false in everything). This plea is clearly
untenable. Even if a major portion of the evidence is found to be
deficient, in case residue is sufficient to prove guilt of an
accused, notwithstanding acquittal of a number of other co –
accused persons, his conviction can be maintained. It is the duty
of the court to separate the grain from the chaff. Where chaff
can be separated from the grain, it would be open to the court
to convict an accused notwithstanding the fact that evidence has
been found to be deficient to prove guilt of other accused
persons. Falsity of a particular material witness or material
particular would not ruin it from the beginning to end. The
maxim falsus in uno, falsus in omnibus has no application in
India and the witnesses cannot be branded as liars. The maxim
falsus in uno, falsus in omnibus has not received general
acceptance nor has this maxim come to occupy the status of the
rule of law. It is merely a rule of caution. All that it amounts to,
is that in such cases testimony may be disregarded, and not that
it must be disregarded. The doctrine merely involves the
question of weight of evidence which a court may apply in a
given set of circumstances, but it is not what may be called ‘a
mandatory rule of evidence’. (See Nisar Ali v. State of U.P. (AIR
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1957 SC 366 : 1957 CriLJ 550)) Merely because some of the
accused persons have been acquitted, though evidence against
all of them, so far as direct testimony went, was the same does
not lead as a necessary corollary that those who have been
convicted must also be acquitted. It is always open to a court to
differentiate the accused who had been acquitted from those
who were convicted. (See Gurcharan Singh v. State of Punjab
(AIR 1956 SC 460 : 1956 CriLJ 827).) The doctrine is a
dangerous one especially in India for if a whole body of the
testimony were to be rejected, because a witness was evidently
speaking an untruth in some aspect, it is to be feared that
administration of criminal justice would come to a dead stop.
Witnesses just cannot help in giving embroidery to a story,
however, true in the main. Therefore, it has to be appraised in
each case as to what extent the evidence is worthy of
acceptance, and merely because in some respects the court
considers the same to be insufficient for placing reliance on the
testimony of a witness, it does not necessarily follow as a matter
of law that it must be disregarded in all respects as well. The
evidence has to be sifted with care. The aforesaid dictum is not
a sound rule for the reason that one hardly comes across a
witness whose evidence does not contain a grain of untruth or at
any rate exaggeration, embroideries or embellishment. (See
Sohrab v. State of M.P. (1972 (3) SCC 751 : 1972 SCC (Cri) 819)
and Ugar Ahir v. State of Bihar (AIR 1965 SC 277 : 1965 (1)
CriLJ 256).) An attempt has to be made to, as noted above, in
terms of felicitous metaphor, separate the grain from the chaff,
truth from falsehood. Where it is not feasible to separate the
truth from falsehood, because grain and chaff are inextricably
mixed up, and in the process of separation an absolutely new
case has to be reconstructed by divorcing essential details
presented by the prosecution completely from the context and
the background against which they are made, the only available
course to be made is to discard the evidence in toto. (See
Zwinglee Ariel v. State of M.P. (1952 (2) SCC 560 : AIR 1954 SC
15 : 1954 CriLJ 230) and Balaka Singh v. State of Punjab (1975
(4) SCC 511 : 1975 SCC (Cri) 601) .) As observed by this Court
in State of Rajasthan v. Kalki (1981 (2) SCC 752 : 1981 SCC (Cri)
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593) normal discrepancies in evidence are those which are due
to normal errors of observation, normal errors of memory due to
lapse of time, due to mental disposition such as shock and
horror at the time of occurrence and those are always there
however honest and truthful a witness may be. Material
discrepancies are those which are not normal, and not expected
of a normal person. Courts have to label the category to which a
discrepancy may be categorised. While normal discrepancies do
not corrode the credibility of a party’s case, material
discrepancies do so. These aspects were highlighted recently in
Krishna Mochi v. State of Bihar (2002 (6) SCC 81 : 2002 SCC
(Cri) 1220). Accusations have been clearly established against
the appellant – accused in the case at hand. The courts below
have categorically indicated the distinguishing features in
evidence so far as the acquitted and the convicted accused are
concerned.”
77. To the same effect it was held in Raja v. State of Karnataka,
2016 (10) SCC 506 as follows:
“32. That the evidence of a hostile witness in all eventualities
ought not stand effaced altogether and that the same can be
accepted to the extent found dependable on a careful scrutiny
was reiterated by this Court in Himanshu (Himanshu v. State
(NCT of Delhi), 2011 (2) SCC 36 : 2011 (1) SCC (Cri) 593) by
drawing sustenance of the proposition amongst others from Khujji
v. State of M.P. (Khujji v. State of M.P, 1991 (3) SCC 627 : 1991
SCC (Cri) 916) and Koli Lakhmanbhai Chanabhai v. State of
Gujarat (Koli Lakhmanbhai Chanabhai v. State of Gujarat, 1999
(8) SCC 624 : 2000 SCC (Cri) 13). It was announced that the
evidence of a hostile witness remains admissible and is open for a
court to rely on the dependable part thereof as found acceptable
and duly corroborated by other reliable evidence available on
record.”
57. The ratio decidendi culled out from the above-referred judgment is
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that the evidence of a hostile witness is not to be discarded or rejected in toto. The
portion of the hostile witness that supports the prosecution may form the basis for
a conviction. Hence, we are of the view that the portion of evidence of PW14
(Ponnamma) that the cut injury was inflicted with a spade and the identification of
the appellant in the dock can safely be considered for sustaining the conviction.
58. The learned counsel for the appellant would further urge that the
appellant was falsely implicated in this case. The first version about the incident
before the doctors of the Government Hospital, Adoor, was that the alleged cut
injuries were due to the accidental fall of a spade on the head of the deceased.
According to the counsel for the appellant, in order to implicate the appellant in a
false case, a subsequent version was introduced that he inflicted cut injuries with a
spade. We are unable to agree with the said argument. PW8 (Dr. Rajeev), who
conducted the autopsy, rules out the theory of accidental fall of the spade. He
would categorically say that injury No.1 could be caused only by a forceful hit of a
weapon like MO1 and not by an accidental fall of a spade. PW3 testified that while
the injured was taken to the hospital in an ambulance, his uncle, Accused No.4,
(Sadasivan) instructed him not to divulge the real incident to the doctor and which
would lead to the denial of treatment to the mother. PW3 (Liju), a young boy aged
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15 years, believed the instructions of his uncle and obeyed him.
Motive
59. The learned counsel for the appellant urged that there is no motive
for the commission of the alleged crime. The learned counsel pointed out that the
sole eye witness turned hostile to the prosecution. In a case where there is no
direct evidence, the motive assumes significance.
60. PW5, Sunil Kumar, was examined to prove the motive. He would say
that about one year prior to the incident, the deceased gave a complaint to the
Branch Office of SNDP stating that her brother was not willing to give her due
share in the ancestral property. Even though he intervened in the matter and
talked with accused No.4 (Sadasivan), a settlement could not be arrived at due to
the indifferent stand of accused No.4. Moreover, PWs. 2, 3, and 4 also spoke about
the property dispute between the deceased and accused No.4 (Sadasivan). The
alleged incident took place when accused Nos. 1 to 4 trespassed into the portion of
the property which was allegedly in the possession of the deceased. It appears that
the enmity in connection with the property dispute has triggered the scuffle, which
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ultimately caused the death of Lalitha.
The chain of circumstances
61. The next submission of the learned counsel for the appellant is that
the chain of circumstances leading to the alleged commission of the crime are not
fully established. If there is a missing link, the appellant is entitled to get the
benefit of doubt. A careful evaluation of evidence would indicate the following
circumstances leading to the commission of the offence.
1. The appellant had a strong motive to commit the offence. The
witnesses 1 to 5 spoke about the enmity in connection with the
partition of the co-ownership property.
2. PW14 (Ponnamma) testified that the injury on the head was caused
with a spade, though she did not state by whom it was inflicted.
3. PWs 4 and 11 had seen the deceased carrying a spade immediately
after the incident.
4. In the dying declaration of the deceased Lalitha, the name of the
appellant was divulged as the assailant.
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5. MO1 spade recovered from the firewood shed of Sudharmani contains
human blood in scientific analysis.
6. The evidence of PW8 (Dr.Rajeev) would suggest that the injury No.1
found on the body of the deceased could be caused by a forcible hit by
a weapon like MO1 spade.
62. The last, but not the least, submission of the counsel for the
appellant is that the recovery of MO1 spade is inadmissible in evidence. PW15, the
Circle Inspector of Police, recorded the confession statement of the appellant on
24.02.2014. Thereafter, on the basis of the disclosure statement, MO1 spade was
recovered from the firewood shed situated on the eastern side of the house of
Sudharmani, as led by the appellant, the MO1 spade was recovered from the said
shed, which was placed on the western corner of the shed. Ext.P2(a) is the
relevant portion of the disclosure statement. PW6 (Akhilesh) is the witness to the
alleged recovery of weapons. He would say that he was not aware of the contents
of Ext.P2 recovery mahazar. In Ext.P2(a), the authorship of concealment is not
stated. In the absence of cogent evidence, the recovery allegedly effected would
not be of much help in proving the prosecution case.
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63. The learned counsel for the appellant pointed out that the conviction
under Section 447 of the Penal Code cannot be sustained, since the property in
which the offence was committed is a co-ownership property. Therefore, the case
of the alleged trespass is not maintainable.
64. We find merit in the said contention. Since the property is
co-ownership, each and every co-owner has a right to every part of the property.
Hence, we are of the view that the conviction entered by the trial court under
Section 447 of the IPC is liable to be set aside.
Conclusion
65. The upshot of the above discussion is that the prosecution has
successfully proved the charge against the appellant beyond a reasonable doubt.
The version of PW3 (Liju) is natural, reliable, and trustworthy. The dying
declaration of the deceased, Lalitha, to her son is legally admissible and reliable.
However, the conviction entered and the sentence imposed by the learned Sessions
Judge under Section 447 IPC are hereby set aside. The rest of the findings of the
trial court are upheld.
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In the result,
i) Crl. Appeal. No. 1414 of 2019 is allowed in part.
ii) The finding of guilt, conviction, and sentence imposed under Section
447 of the IPC is set aside.
iii) The conviction entered and the sentence imposed under Section 302 of
the IPC stand confirmed.
iv)The trial court shall execute the order in the modified manner.
Sd/-
RAJA VIJAYARAGHAVAN V.
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
BR/Sbna