Ahammed Kabeer vs Sub Inspector Of Police

P.B.Suresh Kumar, J

The above appeals arise from S.C.No.76 of 2014 on the files of the Additional Sessions Judge – II, Manjeri. There were three accused in the case and among them, the second accused died pending trial and the third accused was acquitted. The first accused who stands convicted and sentenced for the offences punishable under Sections 307 and 302 of the Indian Penal Code (IPC) preferred Crl.A.No.658 of 2017 and one of the victims in the crime preferred Crl.A.(V) No.761 of 2017.

One Muhammed Ayyoob died and his brother Abdul Khader sustained injuries in an occurrence that took place in their family house at about 3.45 p.m. on 26.02.2011. The first accused is none other than the brother of the victims. The third accused is their mother. The second accused is the brother of the father of the victims and the first accused. Difference of opinion arose between the victims on one side and their parents on the other side when they were living together in the family house. Consequently, the victims left the family house and started living separately. When the victims left the family house and started living separately, their father executed a document in respect of all the properties held by him, including the family house in favour of his wife, the third accused. The victims thereupon instituted a suit before the Sub Court, Manjeri for cancellation of the document executed by their father. In the said suit, the third accused preferred an application seeking permission to carry out repairs in the family house. An Advocate Commissioner was appointed on the said application at the instance of the victims for inspecting the family house and to submit a report. Pursuant to the order passed by the court in this regard, the victims brought the Advocate Commissioner to the family house at about 3.00 p.m. on 26.02.2011. After completion of inspection in the ground floor of the house, the Advocate Commissioner proceeded to the first floor. A verbal altercation took place in the first floor of the house between the victims on one side and the accused on the other side, which in turn interrupted the inspection by the Advocate Commissioner. Consequently, the Advocate Commissioner left the house after informing the parties that he will report the matter to the court. The verbal altercation between the parties continued even thereafter and the same culminated in the occurrence. After the occurrence, Abdul Khader, the injured took Muhammed Ayyoob to the Medical College Hospital, Kozhikode and the latter succumbed to the injuries on the way to the hospital.

A case was registered by Vazhakkad Police based on the information furnished by the injured at 7.00 p.m. on the same day at the Medical College Hospital, Kozhikode and after investigation, a final report was filed against accused 1 to 3 alleging commission of offences punishable under Sections 307, 302 and 109 read with Section 34 IPC. The accusation in the case as in the final report is that while the injured was climbing down the staircase from the first floor of the house, the second accused stabbed the injured from behind below his left shoulder and neck with a knife carried by him and when the injured fell down below the staircase, the first accused stabbed him on his chest and when the injured warded off the said stab, it fell on the palm of his right hand. It is also the accusation in the case that when the deceased attempted to prevent the first accused from stabbing the injured again, the first accused stabbed the deceased repeatedly with a knife, while the second accused was holding the hands of the deceased from behind.

On the accused being committed to trial, the Court of Session framed charges against them and they denied the same. The prosecution thereupon examined 23 witnesses as PWs 1 to 23 and proved through them Exts.P1 to P31 documents. MOs 1 to 14 are the material objects identified by the witnesses. On the closure of the evidence of the prosecution, when the accused were questioned under Section 313 of the Code of Criminal Procedure (the Code), they denied the incriminating circumstances against them and pleaded innocence. The stand taken by the first accused at that stage in the statement filed by the first accused in this regard is that the injured and the deceased sustained injuries in different occurrences that took place in front of their family house. The relevant portion of the statement filed by the first accused in this regard reads thus:

"എന യ  എള പനയ   തറവ ട   വ ട നകത   വവച  പര ന  പ ചന ഷ  വ ട  ന ന  പറനതന  ട  രകവപട   ശമ ച 1)o സ ക  അബ ഖ ദ  വ ട ന  മ വ തള ഇരമ  ന0റ   ഇട ചതവക ണ , ട   നറ ഡ   വ ണതമലവമ ണ  ട  ന  പര    പറ ത  . മരണവപട മഹമദ  അയബ വന വ ട ന  മ വ   ന0റ നടതള നറ ഡ  വവച  അബ ഖ ദറ  മഹമദ  അയബ മ   വ നര ധമള ചറപ ടമള ളകളമ   ഉണ  കഴപത ല  ബഹളത ല  എങ നനന  പര    പറ ത ണ  "

As the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the accused were called upon to enter on their defence. At that stage, the accused examined two witnesses on their side as DWs 1 and 2. Exts.D1 to D5 are the documents proved by the defence through the prosecution witnesses as also the witnesses examined on their side. On a consideration of the evidence on record, the Court of Session found the first accused guilty of the offences punishable under Sections 307 and 302 IPC and acquitted the third accused of the charges. The first accused was sentenced to imprisonment for life and to pay fine for the offence punishable under Section 302 IPC and sentenced to imprisonment for a period of ten years and to pay fine for the offence punishable under Section 307 IPC. The first accused is aggrieved by his conviction and sentence.

Heard the learned Senior Counsel for the first accused, the learned Public Prosecutor as also the learned counsel for the injured who is the appellant in Crl.A.(V) No.761 of 2017.

The learned Senior Counsel for the first accused made elaborate submissions. The essence of the submissions made by him was that the prosecution has miserably failed in establishing their case that it was the first accused who caused the death of Muhammed Ayyoob and caused injuries to Abdul Khader. It is unnecessary to refer to the various arguments advanced by the learned Senior Counsel in support of the said plea at this stage, as we propose to deal with the same elaborately after referring to the evidence in the case. Per contra, the learned Public Prosecutor supported the impugned judgment.

The grievance voiced by the injured in the appeal preferred by him is that it was obligatory for the court in all cases, where it is satisfied that the compensation awarded under Section 357 of the Code is not adequate for rehabilitation of the victims, it shall make recommendation for compensation and the said obligation has not been discharged by the trial court in the case. According to the learned counsel for the victim, the case on hand is a fit case where the court should have invoked its powers under Sub-section (3) of Section 357A of the Code for recommendation for compensation to the victim and the decision of the Court of Session to the extent it failed to issue appropriate orders in this regard, is illegal.

The points that arise for consideration are

(i) whether the conviction of the first accused for the offences punishable under Sections 302 and 307 IPC are sustainable in law and

(ii) whether the victims in the case are entitled to compensation in terms of Section 357A of the Code.

Point (i): PW1 is the injured. PW1 deposed that when the Advocate Commissioner came to the family house for inspection, he saw all the accused standing in the veranda of the house; that after completion of the inspection in the ground floor of the house, the Advocate Commissioner proceeded to the first floor and that a verbal altercation took place in the first floor of the house between the victims on one side and the accused on the other side, which in turn interrupted the inspection by the Advocate Commissioner. PW1 also deposed that when the Advocate Commissioner left the house on account of the said altercation between the parties, the deceased and the first accused climbed down the staircase initially and were standing in the corridor below the staircase and while PW1 was about to climb down the stairs, the second accused who was carrying a knife at that time shouted at PW1 that he will kill him and thereupon stabbed on the shoulder of PW1 from behind. It was deposed by PW1 that he fell and rolled down the stairs on account of the injury caused by the second accused and when PW1 was about to get up, the first accused stabbed him with a knife that was held by him aiming at his chest and when PW1 warded off the said stab, the stab fell on his right palm causing an injury. It was deposed by PW1 that when the deceased came to prevent the first accused from stabbing PW1, the first accused stabbed the deceased with the said knife, repeatedly on the chest, abdomen and hand. It was also deposed by PW1 that at that time, the second accused climbed down the stairs and held the hands of the deceased from the back and the first accused stabbed the deceased thereafter also and one of such stabs fell on the body of the second accused himself. It was deposed by PW1 that the second accused left the scene first, followed by the first accused. It was also deposed by PW1 that he then ran outside the house, drove his car and came near the house and by that time, PW1 found the deceased lying near the gate on the road and that one Siddique was also present there. PW1 deposed that he took the deceased along with Siddique in that car and while they were proceeding, they saw the Advocate Commissioner and even though they required the Advocate Commissioner to accompany them, he instructed them to proceed to the hospital immediately. It was deposed by PW1 that while they were about to proceed, one Sulaiman also got into the car and they reached the Medical College Hospital, Kozhikode at about 4.30 p.m. and by that time, the deceased succumbed to the injuries. PW1 identified his signature in Ext.P1 statement given by him while in the hospital at about 7.00 p.m. PW1 also identified MO2 as the knife used by the first accused to inflict injuries on him and the deceased. PW1 also identified MO1 as the knife used by the second accused to inflict injury on him. PW1 also identified MO3 and MO4 as the clothes worn by him at the time of occurrence. In cross-examination, PW1 admitted that there was a case registered against him alleging that he hacked the first accused. The suggestion made by the counsel for the first accused to PW1 during cross-examination was that the deceased sustained injuries in an incident that took place in front of the gate of the family house, and PW1 emphatically denied the suggestion.

PW2 is Siddique referred to by PW1 in his evidence. PW2 deposed that while he was driving his motorcycle through the road in front of the family house of the parties, he saw PW1 running towards the right from the gate crying and when PW2 stopped his motorcycle, he saw the deceased climbing down the staircase of the house with blood on his body and that PW2 immediately rushed towards him and supported him to come near the gate and that when they reached near the gate, the deceased fainted down onto the road. It was also deposed by PW2 that by that time, PW1 came there in a car and they took the deceased to Medical College Hospital, Kozhikode. It was also deposed by PW2 that while they were proceeding, they met the Advocate Commissioner and even though PW1 required the Advocate Commissioner to accompany them, he in turn, instructed them to go to the hospital immediately. It was also deposed by PW2 that a little while thereafter, one Sulaiman also got into the car to take the deceased to the hospital.

PW13 is the Civil Police Officer who collected the blood sample of the deceased from the doctor who conducted the post-mortem on the body of the deceased and handed over the same to the investigating officer. PW17 is the Advocate Commissioner referred to by PW1 in his evidence. PW17 deposed that he left the family house on account of the altercation between the parties during inspection and when he was standing outside the said house, he saw PW1 coming outside the house with blood on his shirt. PW17 also affirmed that while he was walking towards Choorappatta direction from the house, he saw PW1 coming in a car with the deceased and he did not accompany them to the hospital even though PW1 required him to do so. PW17 also affirmed that another person got into the car at that time.

PW18 was the doctor attached to the Medical College Hospital, Kozhikode during February, 2011. It was deposed by PW18 that at about 4.40 p.m. on 26.02.2011, PW1 was brought to the hospital with an alleged history of assault and the injuries noted by PW18 on PW1 then were two stab injuries, one on the back of his left shoulder measuring 4 x 1 x 3cm and the other on his right palm measuring 3 x 0.5 x 0.5cm. Ext.P13 is the wound certificate issued by PW18 in this regard. PW18 opined that the injury on the shoulder of PW1 is one that could be inflicted with MO1 knife. It was also deposed by PW18 that two other persons were also brought to the casualty at the relevant time and one among them was brought dead. PW18 was summoned again and examined at the instance of the prosecution. During further examination, he has made available the accident register-cum-wound certificate book maintained at the Medical College Hospital during the relevant time containing the carbon copies of the wound certificates issued from the Medical College Hospital, Kozhikode. Ext.P31 is the said document. It was deposed by PW18 that the originals of the wound certificates were given to the police. It was also deposed by PW18 that Page No.86 of the said book pertains to the examination of the second accused and the injury suffered by him was recorded therein as stab injury, chest. Ext.P31(a) is the relevant page of Ext.P31 register which pertains to the examination of the second accused. Similarly, it was deposed by PW18 that Ext.P31(b) pertains to the examination of the first accused and the cause of injury was recorded therein as assault. Ext.D2 is the case record maintained at the Medical College Hospital, Kozhikode in connection with the treatment of the second accused and the same was proved by the defence through PW18. PW18 affirmed in his evidence that in Ext.D2, the clinical history recorded is that the stab injury suffered by the second accused was caused by PW1. It was also affirmed by PW18 in cross-examination that the injury suffered by the second accused in his chest cavity is one which is sufficient in the ordinary course of nature to cause death. PW18 was summoned again at the instance of the accused for further cross-examination and in the further cross-examination held thereupon, he deposed that Ext.D5 is the emergency OP sheet maintained at the Medical College Hospital, Kozhikode in respect of the first accused and the alleged cause of injury was recorded therein as caused by PW1 and the deceased.

PW19 is the doctor who conducted the post-mortem examination on the body of the deceased. Ext.P14 is the post-mortem certificate issued by PW19. The injuries noted by PW19 on the body of the deceased at the time of post-mortem examination as deposed by him are as follows:

“1. Incised penetrating wound 5x1.5cm, oblique on front of right chest Lower inner sharp cut end was 5cm outer to midline and 12 cm below inner end of collar bone. Upper outer end was sqare cut. In depth this injury continued by producing cut fracture of 3rd right rib and then transfixed upper and middle lobes of right lung 6 cm below apex and terminated at middle aspect of lower boarder of its middle lobe with total minimum depth 7 cm. Wound was directed (Page No.4) back, down and to right. Right pleural cavity had 500 ml fluid blood.

Incised wound 3.8x1.8 cm vertical upper end showed sqaring on left front chest 3 cm outer to midline at Xiphisturmum - In depth this wound terminated in the muscle plane reaching cartilage of 8th left rib.

Incised wound 4x1.7 cm vertical on left side of lower abdomen 14 cm outer to umbilicus and 6 cm above tip of anterio superior iliacspine. In depth this wound reached upper aspect of left 11th rib (Floating rib).

Incised wound 3.7 x 1 cm with tailing 0.5 cm muscle deep, oblique (Page No.5) on front of right forearm. Lower inner end at ulnar boarder and 5 cm above wrist with tailing of upper end.

Incised wound 4.5x1 cm vertical in inner aspect of right forearm 4 cm below elbow. There was a side cut at inner boarder for 0.5 cm with a tailing at its lower end for 0.5 cm.

Incised wound 2x0.5 cm transverse an right forearm at ulnar boarder 5 cm above wrist. There was a tailing for 2 cm.

Abrasion 1.8x0.2 cm at outer end and 1 cm below previous injury.

Abrasion 1x0.7 cm on back of right elbow. (Page No.6).

9.Superficial incised wound 1x0.5cm outer left forearm transverse 4 cm below elbow.

Incised wound 2.5x1 cm transverse on back of right shoulder tip 6 cm outer to midline back. Muscle deep.

Abrasions 4 x 2 cm at top of right buttock”

It was deposed by PW19 in his evidence that injuries 1, 2, 3, 4, 5, 6 and 10 are incised wounds and injury 1 was the fatal injury. It was opined by PW19 that injury 1 is sufficient in the ordinary course of nature to cause death. It was also opined by him that injury 1 is an injury that could be produced with MO2 knife.

PW20 was the police officer who recorded Ext.P1 statement from PW1 and registered the case. PW20 deposed the said fact in his evidence. PW21 was the police officer who conducted substantial part of the investigation in the case. PW21 deposed that during interrogation after the arrest, the first accused disclosed to him that “കത  നക ഴ ന  ട  വമഡ    നക നളജ  നക  പKണ നള    ന റത  ട മ രത  സ ഫ  ക റ വN ഉള   ഒള പ ച  വച ടണ  എവ  കട വക ണ നപ    കത യ  ക റ  ഞ   ക ണ ച തര   ", and pursuant to the said disclosure, when the first accused was taken to the place mentioned by him, he took out from the storage area in the driver's door of a car bearing registration No.KL-10 AC 5704 parked at the premises of the Medical College Hospital, Kozhikode, MO2 knife covered in two kerchiefs namely, MO9 and MO10 and the same were seized by PW21 as per Ext.P11 mahazar. Ext.P11(a) is the disclosure which led to the discovery of the knife and the kerchiefs. It was also deposed by PW21 that during the interrogation after the arrest, the second accused disclosed to him that "എവ  കട വ  ണനപ    കത  ഇട ര  സലവ  കത യ  ക ണ ച തര   " and when the second accused was taken to the family house of the parties as guided by him, he took out from the thicket near the well on the eastern side of the house, MO1 knife and handed over the same to PW21 and he seized the same as per Ext.P12 mahazar. Ext.P12(a) is the disclosure which led to the discovery of MO1 knife. During cross-examination, PW21 deposed that the investigation conducted by him did not reveal as to who caused the injury on the second accused. PW15 is the witness to Ext.P11 mahazar and PW16 is the witness to Ext.P12 mahazar. Both the said witnesses affirmed the recoveries of the material objects made mention of in the said mahazars.

PW22 is the police officer who took over investigation from PW21, and PW23 is the police officer who submitted the final report after completing the investigation in the case.

The evidence discussed in the preceding paragraphs is the evidence let in by the prosecution to prove the guilt of the accused. The pointed question is whether the said evidence would prove the guilt of the first accused beyond reasonable doubt.

The materials on record would show that even though Ext.P1 first information statement was recorded by PW20 at 7 p.m. on the date of occurrence and the crime was registered at 8 p.m. on the same day, Ext.P15 first information report reached the jurisdictional Magistrate only at 12.30 p.m. on the following day. According to the learned Senior Counsel for the first accused, Exts.P1 and P15 are ante-timed and ante-dated, and if so, a serious doubt is cast as to the genesis of the occurrence, and the accused is entitled to be acquitted on that sole ground. Even though PW21, the investigating officer has denied the suggestion made to him by the counsel for the first accused that Ext.P1 and Ext.P15 are ante-timed and ante-dated, when he was questioned about the delay, the stand taken by him was that he did not conduct an investigation into that aspect. There can be no rule of universal application that whenever there is delay in sending the first information report to the Jurisdictional Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case [See Aqeel Ahmad v. State of U.P., (2008) 16 SCC 372]. It is worth in this context to refer to the observation made by the Apex Court in Balram Singh v. State of Punjab, (2003) 11 SCC 286. The relevant passage reads thus:

“10. ..... we notice that in reality there is no delay in preparing the FIR but there was some delay in transmitting the said information to the Jurisdictional Magistrate. Having been satisfied with the fact that the FIR in question was registered in the morning of 6-5 -1990, we do not think that the delay thereafter in communicating it to the Jurisdictional Magistrate on the facts of this case, has really given any room to doubt that the said document (FIR) was created after much deliberations. At any rate, while considering the complaint of the appellants in regard to the delay in the FIR reaching the Jurisdictional Magistrate, we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance, the element of delay in registering a complaint or sending the same to the Jurisdictional Magistrate by itself would not in any manner weaken the prosecution case.”

Inasmuch as it is found by us that the evidence tendered by PW1 is reliable and acceptable, the delay in sending the first information report to the Jurisdictional Magistrate may not, in any manner, affect the prosecution case. The argument aforesaid of the learned Senior Counsel, in the circumstances, is only to be rejected.

As noticed, among the witnesses examined on the side of the prosecution, only PW1 gave evidence relating to the occurrence. As regards the evidence tendered by PW1, the contention taken by the learned Senior Counsel for the first accused at the time of hearing is that the same cannot be the sole basis for conviction in a case of this nature since, PW1 is a person who has previous enmity with the first accused. The learned Senior Counsel relied on the pending litigations between them as also the fact that PW1 is an accused in a case registered at the instance of the first accused for hacking him. The learned Senior Counsel has also brought to our notice the evidence tendered by PW18, the doctor at the Medical College Hospital, Kozhikode that when the second accused was brought to the said hospital within a few hours after the occurrence, what was specifically stated by the second accused to PW18 as to the cause of the injury was that the same was caused by PW1. According to the learned Senior Counsel, the same being the earliest version of the occurrence, there is absolutely no reason to suspect the veracity of the said statement given by the second accused to PW18. According to the learned Senior Counsel, the evidence tendered by PW18 also creates a serious doubt as to the genuineness of the evidence tendered by PW1. It was argued by the learned Senior Counsel that such a person, namely PW1 cannot be regarded as a sterling witness for the court to solely rely on his evidence to convict an accused. Placing reliance on the decision of the Apex Court in Nagaraj Reddy v. State of T.N., 2023 SCC OnLine SC 467, the learned Senior Counsel contended that previous enmity is a double-edged sword, for it provides for the motive as also the possibility of false implication and that evidence of such witnesses shall not be accepted without corroboration. Placing reliance on the decision of the Apex Court in Bhimapa Chandappa Hosamani v. State of Karnataka, (2006) 11 SCC 323, it was argued by the learned Senior Counsel that the credibility of the witness is to be tested by reference to the quality of his evidence which must be free of any blemish or suspicion. The learned Senior Counsel has also placed reliance on the decision of the Apex Court in Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21, wherein the Apex Court has explained the conditions to be satisfied to treat the evidence tendered by a witness as sterling, to reinforce his argument that the evidence tendered by PW1 cannot be regarded as evidence of sterling quality.

We have examined the evidence tendered by PW1 meticulously. There is no dispute in the case as to the presence of PW1 at the scene at the time of occurrence. There is also no dispute in the case to the fact that if the evidence tendered by PW1 is found to be reliable and acceptable, the same is sufficient to hold the first accused guilty of the offences alleged against him. The dispute, however, pertains only to the reliability of the evidence tendered by PW1. On an evaluation of the facts and circumstances of the case, we are of the view that there is no reason to doubt the veracity of the evidence tendered by PW1. First of all, the first accused is none other than the brother of PW1. The deceased is also another brother of PW1 and the first accused. Even though there were property disputes between PW1 and the first accused, we do not think that PW1 would falsely implicate the first accused as an accused in the case on hand, if the first accused was not the real assailant of the deceased. That apart, inasmuch as there is no dispute in the case to the fact that someone caused the death of the victim namely, Muhammed Ayyoob inside the family house, that too, during the inspection of the Advocate Commissioner, in the absence of any satisfactory evidence as to the cause of death of the victim as suggested to PW1 by the first accused, according to us, the evidence let in by PW1 is only to be accepted. True, the first accused has a case that no reliance can be placed on the evidence of PW21, the investigating officer as to the disclosure stated to have been made by the first accused on the basis of which MO2 knife was allegedly recovered. The argument raised by the learned Senior Counsel for the first accused in this regard is that there is nothing on record to indicate that the car from which MO2 was taken out and handed over by the first accused to PW21 was locked, for according to the learned Senior Counsel, if the car was not locked, the evidence let in by the prosecution in this regard would not fall within the scope of Section 27 of the Indian Evidence Act. The evidence tendered by PW21 in this regard is that when the first accused was taken to the premises of the Medical College Hospital, Kozhikode, based on the disclosure made by him, the first accused took out MO2 knife from the storage space inside the driver's door of a vehicle parked therein, after opening the same. The mahazar prepared in this regard does not show whether the car was kept locked at the relevant point of time. Be that as it may, according to us, the place from which the weapon was recovered cannot be treated as a public place merely for the reason that the door of the car was not locked, if at all the same was not locked.

The fact that the second accused sustained a serious injury and the first accused sustained a minor injury in the course of the transaction is not seen disputed by the prosecution. Another contention seriously pressed into service by the learned Senior Counsel for the first accused, in the circumstances, is that there is no satisfactory explanation from the prosecution for the serious injury sustained by the second accused. It was pointed out by the learned Senior Counsel that the injury sustained by the second accused in the same transaction is such that the said injury is sufficient in the ordinary course of nature to cause death and there was no investigation as to how the second accused sustained the injury. According to the learned Senior Counsel, want of satisfactory explanation from the prosecution as to how the second accused sustained the said injury would create a doubt as to the genuineness of the prosecution version as to the occurrence. Placing reliance on the decision of the Apex Court in Bhagwan Sahai v. State of Rajasthan, (2016) 13 SCC 171, it was argued by the learned counsel that adverse inference must be drawn against the prosecution for not offering any explanation much less, a plausible one for the serious injury suffered by the second accused and that, therefore, the first accused is entitled to the benefit of doubt on that sole ground. According to the learned Senior Counsel, omission on the part of the prosecution to explain the injuries on the person of the accused, assumes importance since the only evidence in the case against the first accused is the evidence of a witness namely, PW1 who is on inimical terms with the first accused. To bring home the said point, the learned Senior Counsel has also highlighted the evidence tendered by PW21, the investigating officer that he could not find out how the second accused sustained the injury.

In the background of the facts, we have no doubt in our minds that it was obligatory for PW21 to register a crime and conduct an investigation so as to ascertain how the second accused sustained the injury. The said course has however not been adopted by PW21, for reasons only well known to him. Instead, PW21 has even gone to the extent of making an irresponsible statement in the course of his cross-examination that he could not ascertain the cause of the injury sustained by the second accused. The pointed question is whether in such cases, the case of the prosecution is liable to be rejected.

It is trite that even if the investigation in a given case is illegal or suspicious, the rest of the evidence needs to be scrutinised independently of the impact of the faulty/suspicious investigation or otherwise, the criminal trial will plummet to the level of the investigating officers ruling the roost [See State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715]. In other words, if the court is convinced that the testimony of a witness to the occurrence is true, the court is free to act on it albeit the investigating officers suspicious role in the case. It is also trite that the function of the criminal court is to see that the criminal justice is salvaged despite defects, if any, in the investigation. Be that as it may, the question whether failure of the prosecution to explain the injury on the person of the accused would mean that the prosecution has suppressed the truth and also the genesis or origin of the occurrence, has been considered by the Apex Court in Hare Krishna Singh v. State of Bihar, (1988) 2 SCC 95). Paragraph 18 of the said judgment reads thus:

We have referred to the above decisions in extenso in order to consider whether it is an invariable proposition of law that the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain the injuries on the person of the accused would mean that the prosecution has suppressed the truth and also the genesis or origin of the occurrence. Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.

As explicit from the decision referred to above, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. The position has been reiterated by the Apex Court in Shriram v. State of M.P., (2004) 9 SCC 292. Paragraph 14 of the said judgment reads thus:

In Mohar Rai case [AIR 1968 SC 1281 : (1968) 3 SCR 525 : 1968 Cri LJ 1479] it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh case [(1976) 4 SCC 394 : 1976 SCC (Cri) 671 : AIR 1976 SC 2263] it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. These aspects were highlighted by this Court in Vijayee Singh v. State of U.P. [(1990) 3 SCC 190 : 1990 SCC (Cri) 378 : AIR 1990 SC 1459]

Inasmuch as it is found that there is absolutely no reason to reject the evidence tendered by PW1 as regards the occurrence, the failure on the part of PW21 in not registering a crime and conducting investigation as to the cause of injury sustained by the second accused, does not in any manner, according to us, affect the prosecution case. True, PW23, the investigating officer who laid the final report in the case has not explained therein or in any of the reports filed in the course of the investigation as to how the second accused sustained the injury, but, it has come out from the evidence tendered by PW1 that the second accused sustained an injury at the hands of the first accused himself and the said evidence has been corroborated by the version of PW1 in the First Information Statement. If as a matter of fact, the injury sustained by the second accused is not in the manner in which PW1 gave evidence in the case, we fail to understand as to the reason why the second accused had not taken any steps to initiate an investigation into that aspect and such failure on his part, would probabilise the version spoken to by PW1 as to the cause of the injury sustained by the second accused in the same occurrence.

In the light of the discussion aforesaid, we do not find any merit in the appeal preferred by the first accused and the same, in the circumstances, is dismissed.

Let us now deal with Crl.A.(V) No.761 of 2017 preferred by PW1. In the impugned judgment, there is a direction to the effect that the fine directed to be paid, if remitted, shall be paid to the legal representatives of the deceased. No such direction is issued in favour of PW1. Even the compensation ordered to be paid to the legal representatives of the deceased is highly inadequate, according to us, for their rehabilitation. Section 357A (3) of the Code provides that if the trial court, at the conclusion of the trial, is satisfied, that the compensation awarded under Section 357 is not adequate for such rehabilitation and the victim has to be rehabilitated, it may make recommendation for compensation. We do not find any reason to deny the benefit of the said benevolent provision to the victims in this case. In the circumstances, Crl.Appeal (V) No.761 of 2017 is disposed of directing the District Legal Services Authority, Malappuram, to take necessary steps to determine and disburse compensation to PW1 as also to the legal representatives of the deceased, as provided under the Victim Compensation Scheme. The Registry shall forward a copy of this judgment to the Secretary, District Legal Services Authority, Malappuram, forthwith, for necessary follow up action.