Valappan Kunhiveettil Damodaran Alias Damu vs State

Padmanabhan, J.—Sole accused is challenging his conviction for murder and the sentence of imprisonment for life.

Prosecution case and the evidence of the three occurrence witnesses (P.Ws. 1 to 3) in'' conformity with it is this: Deceased Gopi, aged 28, and Appellant Damu, aged 33, were friends. Gopi had some drinks already. Still he came in the company of the Appellant at about 7 p.m. on 6th November 1983 to the Vellora toddy shop run by tappers, including P.Ws. 1 and 2, and had one glass of told each. Gopi appeared to have got intoxicated. He jovially wanted homosexuality with Appellant. Appellant pushed him out of the shop. Presumably realising that what Gopi said was a joke under the influence of drinks, Appellant soon got'' friendly with him and voluntarily escorted him to his nearby room. But on the way Gopi snatched Damu''s lunki and closed his room. When Appellant attempted to attack with a stone and then complained to P.Ws. 1 and 2, P.W. 2 interfered and got back the lunki. When Appellant wanted it to be given by Gopi himself, he offered to go to Appellant''s house and return it. But he repeated his desire to have homosexuality. Appellant gave a blow and Gopi fell down. Then he picked up a stone and hit Gopi thrice. P.Ws. 1 and 2, who interfered, were scare''d away with threat of dire consequences. Helpless cries of Gopi also fell into deaf ears. Gopi was pulled up and pushed to a distance. He was again beaten down. Ignoring his city to save his life, Appellant placed M.O. 4 iron rod across his neck and pressed it. Then he pulled out M.O. 5 dagger and gave four or five blows on his chest, abdomen and back of the chest. A final stab was then given asking whether he is still alive. Gopi was taken to the Government Hospital, Payyannur, District Hospital, Gannanore and finally to Medical College Hospital, Calicut, where he died at 8-25 p.m. on 8th November 1983.

There was faint moon-light and petromax light from neighbouring shops. Visibility is a matter that cannot be disputed. Competency of P.Ws. 1 to 3 also cannot be disputed as they are persons running toddy shop and tea, shop near the scene. The faint and vague suggestions of fraternity towards the deceased, enmity to the Appellant and persuasion by the police did not succeed. Therefore, the main grounds of attack were delay in giving first information statement and some minor omissions in Ext. P-1 spoken to by P.Ws. 1 to 3. The omissions in Ext. P-1 first information statement given by P.W. 1 are the use of iron rod and the pushing to a slightly distant place. P.W. 1 said these are only slips during narration and we think he could be believed especially when the medical evidence proves injuries with M.O. 4. P.Ws. 1 and 2 are tappers and rustic witnesses who half no special interest in the deceased except acquaintance. They escorted him to the hospitals and returned the next day without intimating the police either unaware of the need or thinking that someone else will do it. From the first two hospitals, intimations were given to the police. The doctors were correctly told about the time and place of occurrence, nature of assault and identity of the assailant. It is noted in the wound certificate. Intimations were received by the police only at 11-50 p.m. on 7th November 1983. On 7th November 1983 at about 8-30 p.m. when P.W. 14 Sub Inspector was on his way investigating Anr. case, he got information about this case and there itself recorded Ext. P-1 from P.W. 1. This is the position.

Importance of the first information statement lies on the fact that it is the earliest version of the incident. It has to be promptly given in order to avoid embellishments. But such promptness could be expected only from an interested person or who is having civic sense and feels his responsibility. In many cases, crimes may go unknown and they may come to light only much later. Even in cases where crimes are known, knowledgeable sources may be disinterested or reluctant to inform the police without having any idea of suppression or embellishment. It may be due to lack of civic sense or want of knowledge of the liability to do so. Some may suppress it on account of interest in the accused. In all these cases, if the delay in informing the police is taken as a ground to view the prosecution case and its evidence with suspicion or to reject it on that technicality, the purpose and object of vindication of justice and consequently the interest of society will suffer. On the other hand, if it is shown that an interested person has purposely delayed the information with the ulterior motive of concocting a story or making embellishments and those results followed the position may be different. That is the case with omissions of facts also. Innocent omissions in the first information statement by a slip in narration cannot be of any consequence and it is only a question of appreciating evidence. The purpose of the first information statement is only to set the law in motion on the commission of a cognizable offence and it need not be an encyclopedia of everything. The details are to be collected by investigation. But the position may be different when the omission is purposeful or the subsequent addition appears to be an embellishment. No guidelines are possible in such matters. Practical wisdom must find a solution. Viewed on these principles, we were not able to find anything to suspect the prosecution case and evidence. Delays and omissions are not technical defences, but they are to be considered on the merits on the facts of cases.

P.W. 4 is a neighbouring shop owner. Immediately after the occurrence, he saw the Appellant coming from the scene of occurrence with the bloodstained M.O. 5 in hand. He said he is coming after murdering Gopi and wanted P.W. 4 to produce M.O. 5 before the police. He refused and advised the Appellant to produce it himself. We find his evidence impartial and beyond challenge. It is often said that extra judicial confession is a weak form of evidence. Weakness is said to be on account of the comparatively greater scope for falsity and the limited scope for challenge by cross examination to expose falsity. A generalisation that any form of evidence is weak or strong may not be correct. Falsity can be there in any form of evidence. Cross examination is not the only way of exposing falsity. It can be tested in the background of other facts and circumstances also. Even though evidence of the exact words is appreciable that may not be always possible because it may be oral and what the witnesses reproduces may be from memory. A voluntary confession made to anybody can be accepted if it is unambiguous and the evidence reliable. It is just like any other evidence. When it is made to a person in office or one whom the maker believes is capable of helping him it could be said to be more probable. The relationship between the maker and the person to whom it was made and the circumstances leading to the confession are also some of the touch-stones of reliability on account of probability. That does not mean that confession to Ors. should be rejected on that ground. A close scrutiny may be necessary before accepting the evidence. The evidence must be beyond challenge and deponent must be fully reliable. On these touch-stones, we find the evidence of P.W. 4 acceptable especially in the light of the other items of evidence.

Ocular evidence is fully supported by medical evidence. The evidence of P.W. 7, who prepared Ext. P-4 wound certificate, and that of P.W. 11, who conducted autopsy and issued Ext. P-11 postmortem certificate, show that the injuries could be had as said by P.Ws. 1 to 3. There were 35 ante-mortem injuries, most of which were contusions and abrasions, which could be caused by fall and contact against hard and rough surface including M.O. 4. Others are incisions which could be caused by M.O. 5. P.W. 11 said that injury Nos. 30, 31 and 35 are sufficient in the ordinary course of nature to cause death.

Then we have got the dying declaration contained in Ext. P-16 statement recorded by P.W. 14 Sub Inspector from the deceased. 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 transact ion which resulted in his death, in eases where the cause of death of a person is in question, becomes admissible u/s 32 of the Evidence Act. If properly proved, there is a sanctity attached to that statement as its comes from a person who is going to die since he is not likely to implicate a man falsely unless there are strong reasons. Conviction solely based on such evidence is not impermissible. But credibility will have to be tested on factors on which an enumeration cannot be exhaustive. Possibility of proper identification, mental and physical capacity of the deponent for that purpose and chances of false or wrong implication by extraneous Influence are some of them. There is no requirement of law that the statement must necessarily be made to a Magistrate. Nothing in Section 162(1) of the Code of Criminal Procedure is applicable to such a statement as the exception contained in Sub-section (2) thereof shows. A dying declaration made to a police officer during investigation is also admissible u/s 32. But it is better to keep a dying declaration made to a police officer out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or atleast by a doctor. The practice of investigating officers themselves recording dying declaration when it is possible by a Magistrate or a doctor will have to be discouraged in order to avoid wrong declarations being put in. But in special cases where the above conditions are satisfied and the declaration stands the scrutiny of reliability it could be accepted Dalip Singh v. State of Punjab 1979 S.C.C. (Cri.) 968. In this case, the Sessions Judge did not accept Ext. P-16 on the ground that the same was not properly recorded and the deceased was not able to give a coherent statement as P.Ws. 6 and 13 said. We do not wish to interfere.

Then we have got the evidence relating to the information which led to the recovery of M.O. 5, which was identified by P.Ws. 1 to 4 as the weapon wielded by the Appellant though such evidence is superfluous in the light of the direct evidence. But it can be accepted as a supporting evidence adding credibility to it. The evidence of P.WT. 14 in that respect is supported by P.W. 9. It is clear from the evidence that the Appellant was the author of concealment and recovery was from the place of hiding exclusively known to him. The objection is that the evidence cannot be accepted for the simple reason that recovery was from an open place. We cannot agree firstly for the reason that the place is not open. It is a bush by the side of a road. It is not the open or public nature of the place that counts. That is relevant only to as certain whether the information exclusively remained with the accused of it was known to Ors. also. The "fact thereby discovered" in Section 27 of the Evidence Act is not the material physical object that was recovered. The fact embraces the place from which the object is produced and the knowledge of the accused as to this Kottaya v. Emperor AIR 1947 P.C. 67. ''The fact discovered is the fact that the article was kept concealed there by the accused Jaffar Hussain Dastagir Vs. State of Maharashtra, . The recovery of the physical object only lends assurance to the correctness of the information given by the accused. That assurance can be had otherwise also. But it is necessary to show that the knowledge was exclusive to the accused, it was first derived from him and it was not known to the police from any other source Jaffar Hussain Dastagir Vs. State of Maharashtra, . It is that exclusive information, the correctness of which is assured by the discovery of the fact, that gives sanctity to it and connects the accused with the crime. That alone is the relevance of the oppenness of the place. Even in an open place, an object can be kept concealed, say underground or in a traffic umbrella in a public road, with the information exclusively remaining with the accused who is the author of concealment. Here authorship of concealment and exclusive knowledge are there and the evidence is acceptable as incriminating when the weapon is proved to have been used for the offence. The cumulative effect Of all these items of evidence is that offence stands proved beyond doubt.

Now what remains is only what is the offence proved. It was argued that an offence punishable under the second part of Section 304 of the Indian Penal Code alone is made out since Exceptions 1 and 4 to Section 300 are attracted. All murders are culpable homicides, but all culpable homicides are not murders. An act resulting in death done intending to cause death is culpable homicide under the first part of Section 299 amounting to murder under the first part of Section 300. It will get reduced to culpable homicide not amounting to murder only if any one of the exceptions is attracted. Even then only the first part of Section 304 which requires intention to cause death or intention to cause such bodily injury, as is likely to cause death will apply. In these two cases, the second part of Section 304 cannot apply because it is applicable only when there is no intention and there is only the knowledge that the act is likely to cause death. An offence coming under the second part of Section 299 involves only intention to cause bodily injury which is likely to cause death and death resulted. That will become murder only if the second part of Section 300 is attracted and injury is inflicted on a person whose special physical condition was known to him. The only other likelihood in Section 300 is in part 4. Parts 1 and 3 of Section 300 require intention for the former to cause death and for the latter to cause that particular injury which is found to be sufficient in the ordinary course of nature to cause death. Sufficiency in the ordinary course of nature is of a higher degree than likelihood. in this case, the intention to cause death itself is there, if not atleast the intention to cause these particular injuries on the victim, who was lying in a helpless condition with M.O. 4 pressed against his neck, is evidently there. Intention is further clear from what the Appellant asked before the last step and what he told P.W. 4. It is murder if any one of the exceptions is not attracted.

In order to attract the first exception, there must have been such a high degree of grave and sudden provocation from the deceased, which was capable of depriving the Appellant of his power of self-control to cause death under its influence. Deprivation of self-control is the mitigating factor there. It is co-related with the gravity and suddenness of the provocation. The provocations are the first and last requests for homosexuality and the snatching of lungi. As we have earlier stated, the request for homosexuality was not seriously taken by the Appellant himself because of their relationship and the intoxicated nature of the deceased. He could have well realised that it could be only a joke. That is why after pushing him down the Appellant felt sorry and voluntarily escorted the deceased to his room in a friendly manner. The repetition of such a request even after the punishment and the threat could not have given any graver provocation. P.W.2 got back the lungi only after demanding the Appellant to put down the stone and he obeyed and gave up the aggressive mood. Therefore, we cannot think that there was any such provocation as is capable of attracting Exception 1. Even if the Appellant was provoked, that provocation must have been over by pulling him down after the last provocation and hitting him with stones when he was crying for help arid P.Ws. 1 and 2 dissuaded him. Thereafter, fatal injuries were inflicted with M.Os. 4 and 5 after dragging him to a distance scaring away P.Ws. 4 and 5. The evidence is that the Appellant consumed only a glass of toddy and he was sane and sobre. A final blow was then given with a meaningful announcement. We are not in a position to apply Exception 1.

Exception 4 requires a sudden fight. The act must have been without pre-meditation. The fight must have been in the heat of passion upon a sudden quarrel. Appellant should not have taken undue advantage or acted in a cruel manner. It may be true that there was no premeditation. But there was no sudden fight or quarrel. Under the influence of drinks, the deceased, though jovially, did some wrong. He was punished for that. He fell down in a helpless state and offered no quarrel or resistance, but only cried for mercy and help. The murderous acts done thereafter cannot at any rate, be covered by Exception 4.

We, therefore, confirm the conviction and sentence and dismiss the criminal appeal.