Thursday, 4 February 2016

When evidence of bystander is admissible?

Sec.6 of the Evidence Act is an exception to the general

rule whereunder the hearsay evidence becomes admissible. But for

bringing such hearsay evidence within the provisions of S.6, what is

required   to  be    established   is  that  it  must    be   almost

contemporaneous with the acts and there should not be an interval

which would allow fabrication. The statements sought to be

admitted, therefore, as forming part of res gestate, must have been

made contemporaneously with the acts or immediately thereafter

[(see Sukhar v. State of U.P. (1999 (9) SCC 507)].




       Where the transaction consists of different acts, in

order that the chain of such acts may constitute the same

transaction, they must be connected together by proximity of time,

proximity or unity of place, continuity of action and community of

purpose or design.      The spontaneity of the statement is the

guarantee of the truth.    The reasons for its admissibility under

Section 6 of the Evidence Act is that it is a part of the transaction

and not merely because it is spontaneous.         The statement is

relevant only if it is that of a person, who had seen the actual

occurrence and who uttered it simultaneously with the incident or

soon thereafter as to make it reasonably certain that the speaker is



still under the stress of the excitement caused by his having seen

the incident.   In order to make the statement of a bystander

admissible, it must have been made, at the time of transaction or

shortly before or after it. The statement uttered or the act done must

be a spontaneous reaction of the person witnessing the crime and

forming part of the transaction. The bystanders' declaration must

relate only to that which came under their observation.[See

Bhaskaran v. State of Kerala (1985 KLT 122)]. In the present

case, the declaration was made by the victim himself, immediately

after the incident     of sustaining     injury by him. In the said

circumstances, the      evidence of PW5 and PW6 about what the

victim/deceased said immediately after the incident, is admissible

under Section 6 of the Evidence Act. The above discussion would

make it clear that apart from Sec.32 (1) of the Evidence Act, the

aforesaid statement of the deceased can be admitted under Sec.6

of the Evidence Act on account of its proximity of time to the act of

murder. In either case, whether it is admissible under S.32 (1) or

under S.6 of the Evidence Act, it is substantive evidence, which can

be acted upon with or without corroboration in finding guilt of the

accused [(see Rattan Singh's case (supra)].


IN THE HIGH COURT OF KERALAAT ERNAKULAM

                              PRESENT:

            THE HONOURABLE MR.JUSTICE K.T.SANKARAN
                                  &
        THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

        FRIDAY, THE 5TH DAY OF JUNE 2015

                    CRL.A.No. 1157 of 2010 (G)



       AHRAF, S/O.MOIDU,
           THARAYIL VEEDU, VELLARKAD,
           ERUMAPETTY, PUNNAYOOR,
           THRISSUR DISTRICT.

   Vs

           THE STATEOF KERALA,
           

Citation: 2015(3)KLJ201

          
      The appellants are the accused in S.C.No.86 of 2009 on the

files of the Sessions Court, Manjeri, who in this appeal challenges

the judgment of conviction and sentence passed by the court below

under Sections 302, 323 and 341 read with Section 34 of the Indian

Penal Code. The court below sentenced each of the appellants to

imprisonment for life and a fine of Rs.10,000/- each with a default

clause for rigorous imprisonment for one year each under Section

302 read with Section 34 IPC, rigorous imprisonment for three

months each under Section 323 read with Section 34 IPC and a fine

of Rs.500/- each with a default clause for simple imprisonment for

one week each under Section 341 read with Section 34 IPC.


      2.   There was dispute between the appellants and the

deceased Ibrahim with regard to the payment of rent in respect of

the building where the appellants were residing. The said building

and other tenanted buildings of the deceased are called quarters.

On 17.9.2002 at about 6.30 p.m., the deceased Ibrahim went to the

quarters of the appellants to collect the rent.    On the way, the

deceased met the appellants. The deceased demanded rent from

the appellants.   There was an altercation.     Thereafter, the first

appellant Ashraf pushed the deceased towards the western side of

the quarters. He also pulled the deceased down and restrained him

there.   Thereafter, the first appellant sat on the chest of the

deceased and fisted him. While so, the first appellant directed the

second appellant to bring a knife. Accordingly, the second appellant

brought a knife. Thereafter, the second appellant Navas stabbed on

the nose and left side of the chest of the deceased with a knife. The

deceased was immediately taken to Sukapuram Hospital at Edappal.

However, on the way to the hospital, he succumbed to the injuries.



      3. CW1 (not examined as he was not alive) witnessed the

incident.  He went to the police station and launched Ext.P18

Statement to PW21, who in turn registered Ext.P18(a) F.I.R. The



investigation was taken over by PW22 on 18.9.2002. He conducted

the inquest on the body of the deceased at 8.30 a.m. on that day

and prepared Ext. P4 inquest report. On that day at 12.15 p.m.,

PW22 visited the place of occurrence and prepared Ext.P1 scene

mahazar. He arrested the appellants on 18.9.2002 at 8.30 p.m. On

questioning the second appellant, the second appellant had given

Ext.P19 disclosure statement and pursuant to Ext.P19 disclosure

statement, MO8 knife was recovered by PW22 at the instance of the

second appellant, as per Ext.P13 mahazar. After completing the

investigation, PW22 laid the charge before the court.



      4. In the trial, PW1 to PW22 were examined and Exts.P1 to

P23(a) were marked for the prosecution, besides identifying MO1 to

MO8. No evidence was adduced on the side of the defence.



      5.    We have heard the learned counsel for the appellants

Sri.T.K.Ajith  Kumar    and    the   learned   Public   Prosecutor

Sri.K.K.Rajeev.



      6. PW14 is the doctor who conducted the autopsy on the

body of the deceased and issued Ext.P10 postmortem certificate.



The following ante-mortem injuries were noted by PW14 in Ext.P10

postmortem certificate:-

     "Injuries (Ante-mortem):-

     1.     Incised wound 2.1x0.5x1 cm at the root of nose,

            vertically placed. There was a cut in the nasal

            bone for a depth 0.7 cm.

     2.     Linear abrasion 5x0.2 cm on the top of right side

            of head 5 cm above right eyebrow and 5.5 cm

            outer to midline.

     3.     Abrasion 7x3 cm on the back of right elbow and

            right forearm.

     4.     Abrasion 4.5x1.5 cm on the back of right upper

            arm 3 cm above elbow.

     5.     Linear abrasion 5.5x0.3 cm on the outer aspect of

            right side of abdomen horizontally placed 13 cm

            outer to midline and 5 cm below costal margin.

     6.     Abrasion 4x1.8 cm on the front of right knee.

     7.     Incised penetrating wound 2.9x1.1 cm on the

            lower part of left side of chest obliquely placed

            with its upper end placed, 18 cm below axilla.

            The upper end was split and lower end was

            sharply cut. The wound had cut the muscles of

            the left side of chest.   It had entered the chest

            cavity by cutting the intercostals muscles and

            vessels between the 9th and 10th ribs on left side.

            It had pierced the lower lobe of left lung

            (2.8x0.5x1.5 cm). The left chest cavity contained



             700 ml of fluid blood. The left lung was found

             collapsed. The total minimum depth of the wound

             was 11 cm."



PW14 opined that the death of the deceased was due to the incised

penetrating injury sustained to the chest. Injury No.7 is the incised

penetrating injury sustained to the chest. PW14 opined that injury

Nos.1, 2, 5 and 7 could be caused with MO8 knife. It is the further

evidence of PW14 that injury No.7 in Ext.P10 is fatal and sufficient in

the ordinary course to cause death. PW14 specifically stated that

the injuries noted in Ext.P10 could not be possible in a fall. Thus, it

is proved from the evidence of PW14 that the deceased died due to

the incised penetrating injury No.7 sustained to the chest of the

deceased.



       7. PW2 to PW6 are the occurrence witnesses examined by

the prosecution to prove the prosecution case. But, none of the

above witnesses had witnessed the entire incident in this case.

Each witness had witnessed the incident partly.



       8. PW2 was a tenant of the deceased and a neighbour of the

appellants.   She stated that on the fateful day, she saw the



deceased talking with the appellants regarding payment of rent.

Thereafter, the first appellant caught hold of the hand of the

deceased and both the appellants pushed the deceased to the

western side of the quarters where PW2 and the appellants were

residing. The deceased was then pushed down by the appellants.

The first appellant sat on the chest of the deceased and directed the

second appellant to bring a knife. Since PW2 had fear in her mind,

she entered into her house and closed the door. The above incident

was at about 6.15 p.m., as per the evidence of PW2. PW2 did not

see the rest of the incident.



      9. PW3 was a neighbour of the appellants. She stated that

the incident in this case occurred at about 6.30 p.m. on 17.9.2002.

Her evidence is that while she was proceeding for the evening

prayer, she heard a sound. She opened the window. Then she saw

the appellants pushing the deceased towards the northern side of

the quarters of PW3.     She shut the window and started her prayer.

After the prayer, when she came out, she found the deceased

Ibrahim with blood all over his body.    He was limping. People also

assembled there. The evidence of PW3 would show that she had

seen the deceased immediately after the incident. She had also



seen the deceased and the appellants just before the incident.



       10. PW4 was also a neighbour of the appellants. On the

fateful day at about 6.15 p.m., while he was returning to his house

after his job, he saw the appellants talking on the side of the road.

He entered into his house and changed his dress. Then he heard a

sound from the western side of the quarters of the deceased. He

came out of the house. Then he found the deceased Ibrahim lying

there. Blood was oozing out from the body of the deceased.        He

also found both the appellants moving away from there hurriedly.

The deceased was taken from there in a Maruthi van by CW1 (not

examined).    PW4 identified MO4 lungie and MO5 shirt worn by the

first appellant Ashraf and MO6 lungie and MO7 shirt worn by the

second appellant Navas at the relevant time.



       11. PW5 is the daughter-in-law of the deceased. On the

fateful day, she planned to go to the house of a relative along with

the deceased and her children, as the said relative died. At that

time, CW7 Gopalakrishnan (not examined) came there to borrow

money from the deceased.        Then the deceased told the said

Gopalakrishnan that he would collect rent from the quarters and give


the same to Gopalakrishnan. Accordingly, he went to the quarters

along with the said Gopalakrishnan. PW5 saw both the appellants

proceeding towards the quarters. After some time, she saw the

appellants coming back hurriedly. PW5 was waiting in the Omni van

in which she came there with the deceased. In a little while, she saw

the said Gopalakrishnan(CW1) bringing the deceased. The

deceased told PW5 that the second appellant Navas stabbed him.

The deceased also told her that both the appellants assaulted him.

She had given water to the deceased as requested by him. The

deceased was immediately taken to Sukapuram Hospital. However,

before reaching there, the deceased died.



      12. PW6 was a neighbour of the deceased. PW6 stated that

on getting information that somebody sustained injury, he rushed to

the spot. Then, he saw the deceased Ibrahim lying in the seat of a

Maruthi van with blood all over his body. He asked the deceased as

to what happened.     Then the deceased uttered that the second

appellant Navas stabbed him.      The deceased was taken to the

hospital.  PW6 also accompanied the deceased to the hospital.

After examining the deceased, the doctor declared that the

deceased died.


      13. The evidence of PW2 to PW4 would           show that they

witnessed the incident only in part. PW5 and PW6 did not see the

incident. PW5 and PW6 stated that the deceased told them that the

second appellant Navas stabbed him with a knife.       The learned

Public Prosecutor has submitted that the evidence of PW5 and PW6

that the deceased told them that the second appellant Navas

stabbed him with a knife, is admissible under Section 32(1) of the

Evidence Act. The learned counsel for the appellants, on the other

hand, has argued that the evidence of PW5 and PW6 with regard to

the dying declaration made by the deceased, cannot fall under

Section 32(1) of the Evidence Act, as the said dying declaration was

not recorded by a Magistrate or a police officer or a doctor and

consequently, their evidence cannot be used to bring home the guilt

of the appellants. Clause (1) of Section 32 of the Evidence Act

provides that statements 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, are themselves relevant facts. In the

present case, the cause of death of the deceased comes into

question. In the said circumstances, the statement made by the



deceased before PW5 and PW6 that the deceased was stabbed

with a knife by the second appellant Navas is relevant.



      14. The Apex Court in Prakash and another v. State of M.P.

(AIR 1993 SC 65) observed in paragraph 11 as follows:-

                 "In the ordinary course, the members of the

           family including the father were expected to ask the

           victim the names of the assailants at the first

           opportunity and if the victim was in a position to

           communicate, it is reasonably expected that he

           would give the names of the assailants if he had

           recognised the assailants. In the instant case there

           is no occasion to hold that the deceased was not in

           a position to identify the assailants because it is

           nobody's case that the deceased did not know the

           accused persons. It is therefore quite likely that on

           being asked the deceased would name the

           assailants. In the facts and circumstances of the

           case the High Court has accepted the dying

           declaration and we do not think that such a finding is

           perverse and requires to be interfered with."



      15. In Ramawati Devi v. State of Bihar (AIR 1983 SC 164),

the Apex Court observed thus:

              "A statement, written or oral, made by a person


      who is dead 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, becomes admissible under

      section 32 of the Evidence Act. Such statement made

      by the deceased is commonly termed as dying

      declaration. There is no requirement of law that such a

      statement must necessarily be made to a Magistrate.

      What evidentiary value or weight has to be attached to

      such statement, must necessarily depend on the facts

      and circumstances of each particular case."



     16.    In Bhajju alias Karan Singh v. State of Madhya

Pradesh ((2012) 4 SCC 327), the Apex Court observed thus:

                "The law is very clear that if the dying

         declaration has been recorded in accordance with

         law, is reliable and gives a cogent and possible

         explanation of the occurrence of the events, then the

         dying declaration can certainly be relied upon by the

         Court and could form the sole piece of evidence

         resulting in the conviction of the accused. This Court

         has clearly stated the principle that Section 32 of the

         Indian Evidence Act, 1872 (for short 'the Act') is an

         exception to the general rule against the admissibility



        of hearsay evidence. Clause (1) of Section 32 makes

        the statement of the deceased admissible, which is

        generally described as a "dying declaration"."



     17. In Ashabai and another v. State of Maharashtra ((2013)

2 SCC 224), the Supreme Court held as follows:



               "There is no particular form or procedure

        prescribed for recording a dying declaration nor it is

        required to be recorded only by a Magistrate. As a

        general rule, it is advisable to get the evidence of

        the declarant certified from a doctor. In appropriate

        cases, the satisfaction of the person recording the

        statement regarding the state of mind of the

        deceased would also be sufficient to hold that the

        deceased was in a position to make a statement. It

        is settled law that if the prosecution solely depends

        on the dying declaration, the normal rule is that the

        courts must exercise due care and caution to

        ensure genuineness of the dying declaration,

        keeping in mind that the accused had no

        opportunity to test the veracity of the statement of

        the deceased by cross-examination. As rightly

        observed by the High Court, the law does not insist

        upon the corroboration of dying declaration before it

        can be accepted.      The insistence of corroboration


          to a dying declaration is only a rule of prudence.

          When the Court is satisfied that the dying

          declaration is voluntary, not tainted by tutoring or

          animosity, and is not a product of the imagination of

          the declarant, in that event, there is no impediment

          in convicting the accused on the basis of such dying

          declaration"



      18. In State of Madhya Pradesh v. Dal Singh & others (AIR

2013 SC 2059), the Supreme Court held thus:

                   " The law on the issue can be summarised to

            the effect that law does not provide who can record

            a dying declaration, nor is there any prescribed

            form, format, or procedure for the same. The

            person who records a dying declaration must be

            satisfied that the maker is in a fit state of mind and

            is capable of making such a statement. Moreover,

            the requirement of a certificate provided by a

            doctor in respect of such state of the deceased, is

            not essential in every case."



      19. In Shudhakar v. State of Madhya Pradesh ((2012) 7

SCC 569), the Apex Court held that a dying declaration can be oral

or in writing and any adequate method of communication, whether

by words or by signs or otherwise, will suffice, provided the indication



is positive and definite.



     20. The above discussion makes it clear that it is not necessary

that the dying declaration must be recorded by a Magistrate or a

police officer or a doctor. A dying declaration can be made to any

person including a close relative of the deceased. The only thing is

that the person to whom the dying declaration is made must be

satisfied that the declarant was in a fit state of mind to give the

declaration. The Court must also be satisfied that the deceased was

in a fit and conscious state of mind to give the declaration at the time

when he had given the declaration.        The Court must be further

satisfied that the witness to whom the dying declaration was given is

a witness of credence.



          21. The evidence of PW5 and PW6 clearly shows that the

deceased was in a fit and conscious state of mind to speak and give

the declaration.     From the materials on record, we are fully

convinced that the victim was in a sound state of mind to make the

declaration as spoken to by PW5 and PW6. We are further satisfied

that PW5 and PW6 are reliable witnesses. PW5 is the daughter-in-

law of the deceased. She is not having any enmity towards the



appellants to falsely implicate them in a case like this. Since there

was no ill-motive on the part of PW5 to falsely implicate the

appellants, the evidence of PW5 with regard to the dying declaration

made by the deceased can be safely accepted. PW6 is a neighbour

and a friend of the deceased. PW6 is also not having any enmity

towards the appellants to falsely implicate them in a case like this.

Not even a suggestion was made during the cross-examination of

PW6 that he had any ill-motive to implicate the appellants in this

case. In the absence of any such ill-motive, the evidence of PW6

can be safely accepted. The above discussion makes it clear that

the evidence of PW5 and PW6 with regard to the dying declaration

made by the deceased can be safely accepted. Since the

declaration was made by the deceased with regard to the cause of

his death, the said declaration is, no doubt, admissible under

Section 32(1) of the Evidence Act.



      22. It has been submitted by the learned Public Prosecutor

that the statement made by the deceased to PW5 and PW6 falls

under Section 6 of the Evidence Act also in addition to Section 32(1)

of the Evidence Act.    The principle embodied in Section 6 of the

Evidence Act is usually known as the principle of res gestae, which


is a kind of exception to the rule against hearsay. What it means is

that a fact which, though not in issue, is so connected with the fact in

issue "as to form part of the same transaction" becomes relevant by

itself. To form a particular statement as part of the same transaction,

utterances must be simultaneous with the incident or substantial

contemporaneous that is made either during or immediately before

or after its occurrence [See Bhairon Singh v. State of Madhya

Pradesh (AIR 2009 SC 2603)].



       23. Section 6 of the Evidence Act reads as follows:-

                     "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."



       Illustration (a) to the said Section is important in this context,

which is extracted hereunder:-



              " 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.



      24. . It is clear from illustration (a) to Sec. 6 of the Evidence

Act that the utterances made by the accused or the victim or the

by-stander just before, during or immediately after the commission of

a crime are relevant facts.      A "by-stander"    is a person who is

present at the scene of occurrence. A person, who arrives the

scene of occurrence after the commission of a crime, cannot be

said to be a by-stander. Therefore, the utterances made by any such

person, who reaches the scene of occurrence after the commission

of the crime, are not relevant under this section.



      25. The word "transaction" in Sec.6 of the Evidence Act was

interpreted by this Court in Ponnappan v. State (1994(2) KLT 1027)

thus:-



                 "The word "transaction" in the section in its

          largest sense can be termed as the group of facts so

          connected together as to be referred to the crime

          itself. Whether a series of acts are so connected

          together as to form the same transaction is a

          question of fact.     Proximity of time, continuity of



          action and unity of purpose or design are factors

          governing the same question of fact."



          26. The Apex Court in Gentela Vijayavardhan Rao and

Another v. State of A.P. (1996 (6) SCC 241) referring to Sec.6 of the

Evidence Act held thus:-



      " The principle of law embodied in S.6 of the Evidence Act

      is usually known as the rule of res gestate recognised in

      English law. The essence of the doctrine is that a fact

      which, though not in issue, is to 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 or

      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 at least 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 gestate."



       27.The Apex Court in Rattan Singh v. State of H.P. (1997 (4)

SCC 161) examined the applicability of S.6 of the Evidence Act to

the statement of the deceased and held thus:-

              "Here the act of the assailant intruding into the

         courtyard    during   dead    of   the   night, victim's

         identification of the assailant, her pronouncement that

         appellant was standing with a gun and his firing the

         gun at her, are all circumstances so interlined with

         each other by proximity of time and space that the

         statement of the deceased became part of the same

         transaction. Hence it is admissible under S.6 of the

         Evidence Act".



      28. A Division Bench of this Court in Biju v. State of Kerala

(2006 (3) KLJ 549) held thus:-



                  "The test of admissibility of evidence as part

           of res gestae is that the declaration should be so

           contemporaneous, so intimately interwoven or

           connected with the transaction in issue, giving no

           room for any premeditation or opportunity for

           fabrication of evidence."


       29. Sec.6 of the Evidence Act is an exception to the general

rule whereunder the hearsay evidence becomes admissible. But for

bringing such hearsay evidence within the provisions of S.6, what is

required   to  be    established   is  that  it  must    be   almost

contemporaneous with the acts and there should not be an interval

which would allow fabrication. The statements sought to be

admitted, therefore, as forming part of res gestate, must have been

made contemporaneously with the acts or immediately thereafter

[(see Sukhar v. State of U.P. (1999 (9) SCC 507)].




         30.    Where the transaction consists of different acts, in

order that the chain of such acts may constitute the same

transaction, they must be connected together by proximity of time,

proximity or unity of place, continuity of action and community of

purpose or design.      The spontaneity of the statement is the

guarantee of the truth.    The reasons for its admissibility under

Section 6 of the Evidence Act is that it is a part of the transaction

and not merely because it is spontaneous.         The statement is

relevant only if it is that of a person, who had seen the actual

occurrence and who uttered it simultaneously with the incident or

soon thereafter as to make it reasonably certain that the speaker is



still under the stress of the excitement caused by his having seen

the incident.   In order to make the statement of a bystander

admissible, it must have been made, at the time of transaction or

shortly before or after it. The statement uttered or the act done must

be a spontaneous reaction of the person witnessing the crime and

forming part of the transaction. The bystanders' declaration must

relate only to that which came under their observation.[See

Bhaskaran v. State of Kerala (1985 KLT 122)]. In the present

case, the declaration was made by the victim himself, immediately

after the incident     of sustaining     injury by him. In the said

circumstances, the      evidence of PW5 and PW6 about what the

victim/deceased said immediately after the incident, is admissible

under Section 6 of the Evidence Act. The above discussion would

make it clear that apart from Sec.32 (1) of the Evidence Act, the

aforesaid statement of the deceased can be admitted under Sec.6

of the Evidence Act on account of its proximity of time to the act of

murder. In either case, whether it is admissible under S.32 (1) or

under S.6 of the Evidence Act, it is substantive evidence, which can

be acted upon with or without corroboration in finding guilt of the

accused [(see Rattan Singh's case (supra)].



      31.   The evidence regarding the discovery of MO8 knife by

PW22 at the instance of the appellant is another piece of evidence

connecting the appellant with the crime. The evidence of PW22 is

that he arrested the appellants on 18-9-2002 at 8.30 p.m. and

when questioned, the 2nd appellant had given Ext. P19 disclosure

statement and pursuant to Ext. P19 disclosure statement and as

led by the second appellant, MO8 knife was discovered by PW22 at

the instance of the second appellant,as per Ext.P13 mahazar. The

evidence of PW22 regarding the discovery of MO8 knife at the

instance of the second appellant in pursuance to the disclosure

statement given by the second appellant is, not doubt, admissible

under section 27 of the Evidence Act. Ext.P17 report of chemical

analysis would show that MO8 was stained with human blood. The

blood stains on MO8 knife fastens the culpability of the appellants.



      32. The evidence discussed above would show that PW2 to

PW4 had seen part of the occurrence. There is absolutely nothing

on record to indicate that PW2 to PW4 had any ill-motive to implicate

the appellants in a case like this. The evidence of PW5 and PW6 is

that the deceased had given dying declaration that the deceased

was stabbed by the second appellant Navas. The deceased also told



PW5 that both the appellants assaulted him. The medical evidence

of PW14 coupled with Ext.P10 postmortem certificate would show

that the deceased died due to the incised penetrating injury

sustained to his chest.    Injury No.7 is the incised penetrating injury

sustained to the chest. PW14 opined that injury Nos.1, 2, 5 and 7

could be caused with MO8 knife. Even though the appellants

contended that the deceased sustained injuries in a fall, the

evidence of PW14 clearly shows that the injuries sustained by the

deceased could not be possible in a fall. Thus, the contention of the

appellants that the deceased sustained injury in a fall is ruled out by

the evidence of PW14. The evidence of             PW22 regarding the

discovery of     blood stained MO8 knife        at the instance of the

second appellant supports the medical evidence of PW14. MO5 shirt

worn by the first appellant at the relevant time contained human

blood as per Ext.P17 report. The evidence on record shows that the

first appellant had actively involved in the commission of the offence

in this case. Therefore, it was only natural that MO5 shirt worn by

the first appellant was stained with human blood. The evidence

discussed above clearly shows that both the appellants      had active

participation in the crime, sharing common intention. Having

meticulously gone through the evidence on record, we are



fully satisfied that the court below had correctly evaluated the

evidence and reached the conclusion that the deceased died due to

the incised penetrating stab injury inflicted on his chest by the

second appellant with MO8 knife in furtherance of the common

intention of both the appellants, as alleged by the prosecution.



       33. Now the question to be considered is as to whether the

offence committed by the appellants falls under Sec. 302 IPC or

under Part I of Sec. 304 IPC. It is in the evidence that there was

sudden quarrel between the deceased and the appellants. However,

the sequence of events which led to the sustaining of injuries by the

deceased is     not available on record. The appellants were not

carrying any weapon with them at the time of commencement of

the quarrel. This    itself would show that the act was not a pre-

meditated one.      There is also no material before the Court to

indicate that the appellants took any undue advantage or the

appellant acted in a cruel or shocking manner. The evidence on

record would show that the 2nd appellant also sustained injuries in

the incident. This itself would show that there was scuffle between

the appellants and the deceased.         There is no reasonable or

acceptable evidence as to how it started and who the aggressor



was. In the said circumstances, we are of the view that Exception 4

to Section 300 IPC is clearly attracted in this case and consequently,

the offence falls under Section 304 Part-1 of the Indian Penal Code .



      In the result, this Criminal Appeal stands allowed in part. The

conviction and sentence passed by the trial court under Section 302

read with Section 34 IPC stand set aside. The appellants are

convicted under Section 304 Part-1 read with Section 34 IPC.

Each of the appellants is sentenced       to rigorous imprisonment for

ten years each and a fine of Rs.10,000/- each with a default clause

for rigorous imprisonment for two years each under Section 304

Part-1 read with Section 34 IPC.         The conviction and sentence

passed by the trial court under Section 323 read with Section 34 IPC

and Section 341 read with Section 34 IPC stand confirmed.




                                              (K.T.SANKARAN)
                                                    Judge



                                        (B.SUDHEENDRA KUMAR)
                                                   Judge




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