P.K.Shamsuddin, J:-
(1) criminal appeal no. 141 of 1986 is filed by the state against the order of acquittal passed by the court of additional sessions judge, Alleppey in sessions case no. 53 of 1983. Criminal revision case no. 55 of 1985 is the suo motu revision taken by this court against the judgment of the additional sessions judge.
(2) the respondent and his brother, Gopalakrishna kurup alias omanakuttan, Were charged for offences punishable under sections 323, 302 read with section 34 of the indian penal code. During the trial, A. 1 committed suicide and the trial proceeded against a. 2, The respondent herein. Learned sessions judge found that the respondent is not guilty of the offence and acquitted him.
(3) the prosecution case in brief is as follows. The incident took place at about 10. 00 a. M. On 8 - 9 - 1982 at kuruppada purayidom on the western side of the culvert at eramellor muri in aroor village. Sreedharan nair, Now deceased, Father of p. W. 1, Was proceeding to the national highway on the west along the pathway. A. 1 and a. 2 followed him. A. 1 was having a sword stick and a. 2 had an iron rod. A. 1 inflicted a stab on the back of sreedharan nair with a sword stick and a. 2 beat on the head of sreedharan nair with an iron rod. Again a. 1 inflicted a cut injury on the forehead of sreedharan nair with the sword stick. A. 2 again beat sreedharan nair with iron rod. Sreedharan nair resisted the attack with no. 1 umbrella. However, He could not withstand the attack and he fell down. Thereupon a. 1 inflicted a stab injury on the abdomen of sreedharan nair, As a result of which his intestine came out p. W. 1 daughter of sreedharan nair was coming a little behind sreedharan nair on her way to the typewriting institute. She rushed to the scene of occurrence, Obstructed the accused and caught hold of a. 1. Thereupon; a. 1 bit p. W. 1 on her shoulder causing an injury. She released a. 1. Thereafter, Both the accused left the place with weapons.
(4) p. Ws. 4 and 5 who witnessed the occurrence came to the scene. They along with p. W. 1 and others removed sreedharan nair to thuravoor hospital and then to the government hospital, Shertallai and finally to the medical college hospital, Alleppey. Sreedharan nair was admitted to the medical college hospital and treated as an in - patient. P. W. 15 examined sreedharan nair and p. W. 1 and issued exts. P. 12 and p. 13 wound certificates respectively. Sreedharan nair was subjected to an emergency surgery. However, He succumbed to his injuries at about 11. 15 a. M. Dated on 10 - 9 - 1982. There were property disputes between the deceased and the accused and criminal cases were pending between them and it was on account of this enmity, The accused attacked sreedharan nair.
(5) on getting information from the medical college hospital over telephone, P. W. 17 head constable, Alleppey sough police station, Went to the hospital, And recorded ext. P. 1 (a) statement of sreedharan nir at about 12. 30 p. M. He took exts. P. 1 (b) and p. 1 (c) body notes of the deceased and p. 1 respectively. On the basis of ext. P. 1 (a) first information statement, He registered a crime against both the accused and ext. P. 14 is the first information report. Since the place of occurrence was within the jurisdiction of kuthiathodu police station, The case was transferred to that police station. P. W., S18, The head constable of kuthisthodu police station, Register crime no. 204/82 against both the accused under section 324 read with section 34 of the indian penal code and ext. P. 15, Is the first information report prepared at the kuthiathodu police station.
(6) p. W. 18 proceeded to the scene of occurrence on 9 - 91982 and prepared ext. P. 8 mahazar. M. O. 1 umbrella was recovered from the scene of occurrence. On getting information, That sreedharan nair died at about 11. 15 a. M. On 10 - 9 - 1982, The sub inspector of police forwarded a report to the court adding section 302 of the indian penal code also. P. W. 18 went to the medical college hospital on 10 - 9 - 1982 by 4. 00 p. M. And conducted inquest over the dead body of sreedharan niar ext. P. 18 is the inquest report dr. N. U. Raja conducted autopsy on the dead body of sreedharan niar at 8. 00 a. M. On 11 - 9 - 82 and ext. P. 11 is the postmortem certificate. P. W. 18 head constable and p. W. 19 circle inspector, Shertalled conducted investigation. P. W. 1 produced m. Os. 3 and 4 mundu and shir, Worn by the deceased at the time of the incident before p. W. 19 and they were taken into custody by him under ext. P. W. 9 mahazar. P. W. 12, Village officer, Prepared ext. P. 10plan. After completing the investigation, P. W. 19 laid final report before the judicial magistrate of ii class, Shertallia, Who committed the accused to stand trial before the court of sessions, Alleppey.
(7) on the respondent pleading not guilty to the charge, The prosecution examined p. W. S 1 to 19, Marked exts. P. 1 to p. 17 and m. Os. 1 to 3. The respondent denied their criminating circumstances appearing against him in the prosecution evidence. No witness was examined and no document was also marked for the defence.
(8) that sreedharan nair sustained injuries in an occurrence on 8 - 9 - 1982 and subsequently he died at the hospital admits of no doubt. Ext. P. 12 is the wound certificate issued by p. W. S14 in respect of the injuries found on him, When he (p. W. 14) examined sreedharan nair on 8 - 9 - 82 it is also in evidence that sreedharan nair succumbed to his injuries on 10 - 9 - 82 at 11. 15 a. M. The inquest report ext. P. 16, The postmortem certificate4 ext. P. 11 prepared by dr. B. U. Raja and the evidence of p. W. 14 would clearly establish that sreedharan nair died. Exst. P. 11 shows that sreedharan nair died as a s result of peritonitis. Similarly, The prosecution has succeeded in proving that p. 1 sustained injury p. W. 15 examined p. W. 1 on 8 - 9 - 82 and issued ext. P. 13 would certificate which shows that she sustained a biting injury on the left upper arm.
(9) the next question that falls for consideration is whether the respondent and the 1st accused shared a common intention to murder sreedharan nair or cause grievous injury to him and what is the offence, If any, Committed by the respondent.
(10) the prosecution examined p. Ws. 1 to 4 as occurrence witness, Out of whom p. W. 1 is the daughter of sreedharan nair. She also sustained injury due to biting p. Ws. 2, 3, And 4 turned hostile and id not subscribe to the prosecution version.
(11) p. W. 1 gave evidence that on 8 - 9 - 1982 at 9. 50 a. M. While she was going to the typewriting institute, She saw the occurrence. When she reached on the western side of the house of p. W. 2, She saw a. 1 and a2 running after her father. A. 1 had a sward stick and a 2 had an iron rod. A. 1 stabbed on the back of her father with the swoard stick immediately, A 2 beat on the head of her father with iron rod. She cried out and ran towards her father a. 1 cut her father with a w sward stick, Which fell on his forehead, Causing bleeding injury. A. 2 beat her father with iron rod. Her father was resisting the attack, With an umbrella with him. On receipt of the injuries her father fell down on the ground and cried out. Thereupon, A. 1 stabbed on his abodomen with a sword stick and his intestines came out. She caught bold of a. 1 and then a. 1 bit on her shoulder and thereupon she released. A 1 from her grip. P. W. 2 came running to the scene. A. 2 attempted to beat her (p. W. 1) with an iron rod. P. W. 2 warned him not to do anything. Immediately both a. 1 and a. 2 ran away with the weapons in their hand. She also stated that p. Ws. 4 and 5, Came to the scene and they lifted sreedharan nair and brought him to the national highway and from there, He was taken to thuravoor government hospital and then to the government hospital, Shertallai and as directed from there ultimately to the medical college hospital, Alleppey. She further stated that they reached alleppey medical college at 11. 30 a. M. And sreedharan nair was admitted there and was subjected to an emergency operation. However, He died on 10 - 9 - 1982. She stated that there was some dispute between her father and padmanabhan nair, The father of the accused and uncle of her father, Over some property, That some civil and criminal litigations were pending between the two families and that formed motive for the attack. She identified the signature in ext. P. 1 as that of her father. In the course of cross - examination, She stated that immediately after examining her father, At the medical college hospital, He was taken to the operation theatre and the operation took two to 21 hours and it was at 2 p. M., He was brought back to his room and he took half an hour more to be free from drowsiness. She stated that she was in the hospital on 8 - 9 - 1982 and also remained there upto 11 p. M. Or 9th however, She was questioned on at 11 a. M. On 11 - 8 - 82 and that too at her residence. She stated that it would take 5 minutes to reach the national highway from her house by walk and from the national highway, There is a distance of 2 kms. To the institute and she used to go to the institute by walking.
(12) p. W. 2 ramakrishna panicker stated that he had not witnessed the occurrence and he did not know when p. W. 1 reached the place of occurrence.
(13) p. W. 3 rajalekshmi kunjamma stated that she heard a commotion from the place of occurrence and when she rushed to the scene of occurrence, She saw a. 1 raising and lowering the head of sreedharan nair. In the course of cross - examination, She stated that she did not see a. 2 at the scene of occurrence.
(14) p. W. 4 thevan kanda and p. W. 5 karumban kunjachan stated that they have not seen the occurrence.
(15) p. W. 7 bhaskaran nair is the brother of the deceased sreedharan nair. He gave evidence that his children came and told him that a. I and a. 2 cut his brother and thereupon he proceeded to the hospital. He saw his brother with stitches on the abdomen. He enquired about the persons who inflicted the cut, To which sreedharan nair replied that a. 2 and his brother were responsible. He also stated that sreedharan nair and the accused were on inimical terms on account of some boundary dispute. In the course of cross - examination, He stated that he talked to his brother on 8 - 9 - 1982, But it was on the next day at 3. 30 p. M. That his brother told him about the persons who inflicted cuts on him.
(16) p. W. 8 saradamma was another witness examined by the prosecution to prove motive. She did not support the prosecution and she also turned hostile.
(17) the prosecution has mainly relied on (1) the evidence of p. W. 1, (2) ext. P. 1 first information statement of the deceased sreedharan nair and the evidence of p. W. 7 in regard to the oral statement made by the deceased to him that he sustained injuries at the hands of the accused, As items of evidence falling under section 32 of the evidence act. (3) the medical evidence furnished by p. Ws. 14 and 15 and exts. P. 12 and p. 13 wound certificates and ext. P. 11 postmortem certificate and (4) the motive spoken to by p. Ws. 1 and 7 in support of the prosecution case.
(18) the learned public prosecutor and also sri. Vijaya bhanu, Who was permitted by his court to assist the public prosecutor, Contended that the order of acquittal passed by the learned sessions judge is unsustainable. They submitted that p. W. 1 is an injured witness and there is no reason to reject her testimony. They contended that p. W. 15 presence was spoken to by p. W. 2, A hostile witness and her evidence was corroborated by ext. P. 1 first information statement given by the deceased and also the testimony of p. W. 7. They also contended that the learned sessions judge went wrong in treating her as interested witness.
(19) in this connection, They invited out attention to the decisions of the supreme court in vishvas abu kurane v. State of maharashtra (a. I. R. 1978 s. C. 414), State of raj. V. Smt. Kalki de anr. (a. I. R. 1981 s. C. 1390) and gurnek singh de anr. V. State of punjab (a. I. R. 1988 s. C. 2249).
(20) repelling the contention that the testimony of a relative witness bad to be rejected as being interested, The supreme court made the following observations in vishvas aba kuranss case (supra) it is no doubt true that shankar (p. W. 2) is a full brother of the deceased and is a solitary eye - witness of the occurrence but these factors can hardly constitute sufficient grounds for setting aside the impugned conviction which has been recorded by the high court after a careful appraisal of the evidence. The evidence of shankar (p. W. 2) the injuries found on whose person by dr. B. T. Akkole lead assurance to his presence at the time and place of occurrence has, In our opinion, A ring of troth and cannot be easily brushed aside despite the cupping criticism to which it has been subjected by the learned counsel for the appellants. His deposition receives ample corroboration from the medical evidence as also from the circumstantial evidence. In smt. Kalkis case (supra), The supreme court rejected the contention that the witness being the wife of the deceased is a highly interested witness, And her evidence cannot be accepted and made the following observationsti the high court has declined to rely on the evidence of p. W. 1 on two grounds (1) she was a highly interested witness because she is the wife of the deceased, And (2) there were discrepancies in her evidence. With respect, In our opinion, Both the grounds are invalid for, In the circumstances of the case, She was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, And the only person who saw the occurrence. True, It is, She is the wife of the deceased; but she cannot be called an interested witness, She is related to the deceased related is not equivalent to interested, A. Witness may be called interested only when he or she derives some benefit from the result of a litigation; in the decree in a civil case or in seeing an accused person punished. A witness who is a natural one and is the only possible eye - witness in the circumstances of a case cannot be said to be interested. In the instant case, P. W. 1 had no interest in protecting the real culprit, And falsely implicating the respondents. In gurnek singhs case (supra) also, The supreme court consider a similar argument as said: the trial court and the high court were right in accepting their evidence. The presence of these three witnesses at the time of occurrence is beyond question having regard to the fact that all the three of them have sustained injuries by pellets on account of the gun - shots fired at them in the course of the very same transaction at the very time and place of occurrence. The fact that they are related to the deceased victim does not detract from the value of their evidence having regard to the fact that their presence at the scene of offence is natural and their presence near the deceased has been established beyond a shadow of doubt by reason of the fact that they themselves have sustained injuries attributable to firearms at the same time and on the same spot. In dhilip singh v. State of punjab, (a. I. R. 1955 s. C. 364) and also gopal singh v. State of uttar pradesh, (1978 s. C. C. (cr1.) 198) the supreme court pointed out that ordinarily a close relative would be the last person to screen the real culprit and implicate an innocent person and hence the mere fact of relationship far from being a foundation for criticism is often a sure guarantee of troth.
(21) the learned public prosecutor also submitted that though only one single witness speaks to the occurrence and others turned hostile, That is sufficient to sustain the conviction. It is true that even if the case against the accused hangs on the evidence of the single eye - witness, It may be enough to sustain the conviction if the testimony is found truthful and acceptable. Witnesses have to be weighed and not counted.
(22) the learned public prosecutor and sri. Vijaya bhanu are right in their contention that the fact that p. W. 1 is the daughter of the deceased is no ground to reject her evidence, If it is found otherwise true and acceptable. She sustained bite injury. It is also true that a person injured or related to the victim is not likely to falsely implicate innocent persons to protect the real culprits.
(23) we shall examine the evidence of p. W. 1 in the light of the principles enunciated in the above decisions. P. W. 1 was at the hospital from 8 - 9 - 82 till 11. 30 p. M. On 9 - 9 - 82 and also in the night of 10 - 9 - 82, But she was questioned only on 11 - 9 - 82. There is no explanation why no statement was taken from p. W. 1 before 11th sreedharan nair was in a serious condition. One would expect p. W. 17 to take the first information statement from p. W. 1, But that was not done. In balkrushna swain v. State of orissa1, The supreme court held that unjustified and unexplained long delay on the part of the investigating officer in recording statement of material eye - witness during investigation of murder case will render the evidence of such witness unreliable.
(24) the evidence of p. W. 1 would show that she had to reach the typewriting institute by 10. Oclock in the morning. In the course of cross - examination, She stated that her house is half a furlong away from the place of occurrence, That she had class between 10. 00 a. M. And 12. 15 p. M. And that she had class on all working days. She stated that it would take five minutes to cover the distance from her house to the national highway, That she had to go 2 more kilometers to reach the institute and that she was going to the institute by walking. She stated that she started for the institute at 9. 50 a. M. And she had occasion to witness the occurrence on her way to the institute. Ibis appears to be improbable. She had to start much earlier if she had to reach the institute by 10 a. M. Covering a distance of more than 2 kilometers by walk. If that be so, It would be difficult for her to see the occurrence. No doubt, She has sustained injury due to biting on her shoulder, Which would probablised the prosecution version that she came to the scene of occurrence. P. W. 2 also stated that p. W. 1 reached the scene of occurrence. But the question is when she came to the scene of occurrence and the circumstances in which she happened to witness the occurrence. We find it difficult to accept the explanation of p. W. 1 that it was while she was proceeding to the typewriting institute that she happened to see the occurrence, For the reasons stated above.
(25) the next item of evidence relied on by the prosecution is ext. P; 1 (a), Which was recorded at 1. 30 p. M. On 8 - 9 - 82. However, It reached the magistrate only on y4 - 9 - 82. Ext. P. 15, The first information report prepared in kuthiathodu police station, Also reached the court only on 13 - 9 - 82. The delay in exts. P. 1 (a) and p. 15 reaching the court has not been explained by the prosecution. The learned public prosecutor submitted, That between 8 - 9 - 1982 and 14 - 9 - 1982, Only 9 - 9 - 1982 and 13 - 9 - 1982 were working days and that it cannot he said that there is long delay in. Sending the first information report to the magistrate.
(26) we have in our judgment in cr1. A. Nos. 450/86 and 482/86 pointed out that what section 157 of code of criminal procedure contemplates is forwarding the report to the magistrate and not to the court. There is considerable delay in the first information report reaching the magistrate which has not been explained by the prosecution. There are other circumstances also which cast cloud on the question as to when exactly ext. P. 1 (a) came into existence and whether it came into existence at the time and date stated in ext p. 1 (a). We have already referred to the evidence of p. W. 1 that immediately on reaching the medical college hospital, The injured was taken to the operation theater. P. W. 1 stated that it was at about 11. 40 a. M. That the injured was taken to the operation theatre and it took about 2 to 21/2 hours for operation and it was at 2. 00 p. M. He was brought out of the theatre and it would have taken another half an hour for sreedharan nair to be free from the effect of sedation. If that version is correct, It would not have been possible for p. W. 17 to record the statement of the deceased at 1. 30 p. M. P. W. 1 was in the hospital and she does not state anything about the recording of the statement by p. W. 17 at the hospital. She left the hospital only in the night of 9 - 9 - 1982. It is also highly improbable that the deceased would have been in a position to give ext p. I (a) statement immediately after the operation. P. W. 17, Who recorded the statement, Stated that he took the statement at 12. 30 p. M. On 8 - 9 - 1982 and while taking the statement glucose drip was administered through the right hand and blood was given through the left hand and in that situation, He obtained the signature of the deceased sreedharan nair in ext. P. I (a). It is difficult to believe that in such a situation, Sreedharan nair would have been able to make such a lengthy statement as contained in ext p. I (a) or to sign ext p. 1 (a). The prosecution has not adduced any evidence to show that sreedharan nair was m a fit condition to give a statement at the time and date mentioned in ext p. 1. Such evidence was necessary in view of the evidence of p. W. 1 that immediately on reaching the hospital, Sreedharan nair was taken to the operation theatre and the operation took 2 to 21/2 hours and it was after half an hour later, I. E. At 2 p. M. That he was taken out of the theatre and it took half an hour more for him to be free from drowsiness.
(27) the learned counsel shri vijayabhanu placed before us a decision of the supreme court in state of u. P. V. Gokaran and ors. 2 where the supreme court pointed out that it is not that as if every delay in sending a delayed special report to the district magistrate under section 157 of the criminal procedure code would necessarily lead to the inference that the f. I. R. Has not been lodged at the time stated or has been ante - timed or ante - dated or that the investigation is not fair and fortnight that the relevant provision contained in section 567 of the criminal procedure code is really designed to keep the magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under section 159 of the code of criminal procedure and that if in a case it is found that the first information report was recorded without delay and the investigation started on that first information report, Then the delay by itself cannot justify the conclusion that the investigation was tainted and the prosecution unsupportable especially when steps in investigation by way of drawing inquest report and other panchanamas had been taken expeditiously. However, In the instant case, The delay in reaching the first information report is not the only circumstance which casts doubt on the question whether ext. P. 1 came into existence at the stated time and date, But there are other circumstances referred to above which casts cloud on the possibility of recording the statement at the stated time and date.
(28) another item of evidence which was vehemently pressed into service by the prosecution is the oral dying declaration spoken to by p. W. 7, The brother of the deceased he was questioned for the first time only on 11 - 9 - 1982. His version to the police was that it was on 8 - 9 - 1982 that his brother told him that it was the accused who inflicted the fatal injuries. But in the evidence, He stated that though he had a talk with his brother on 8 - 9 - 82, It was only on 9 - 9 - 82 that his brother told him that it was the accused who inflicted the injuries. On account of these infirmities, It is difficult to accept the evidence of p. W. 7 relating to the alleged statement made by the deceased to him that it was the accused who inflicted the injuries.
(29) learned counsel for respondent also contended that the alleged dying declaration contained in ext p. 1 (a) and the evidence of p. W. 7 are not admissible udmissible under section 32 of the evidence act learned counsel pointed out that sreedharan nair died as a result of peritonitis and not as a result of the injuries sustained.
(30) in support of his contention, Learned counsel for the respondent heavily relied on the decision of the supreme court in moti singh and anr. V. State of uttar pradesh. 3 in that case, There was no evidence to show that the deceased died on account of the cuts received by him. In the circumstances, The supreme court pointed out that the statement made by the victim is not admissible under section 32 of the evidence act. The supreme court pointed out that clause (1) of section 32, Makes a statement of a person who has died relevant only when that 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. When the deceased is not proved to have died as a result of injuries received by him in the incident where the deceased is alleged to have been killed his statement relating to that incident cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.
(31) he also relied on the decision of the allahabad high court in chandrabhan singh v. State. 4 there also, The victim died as a result of supervening tetanus. The court held that since development of tetanus was due to extraneous factor not connected with the infliction of injury, The statement made by the victim would not fall under section 32 (1) of the evidence act. In this case there is no evidence to show that the deceased died as a result of any supervening factor which is not connected with the injuries. The evidence would indicate that peritonotis developed as a result of the injuries. Therefore, The principles laid down in the above decisions above no application to the facts of this case.
(32) it is also not possible to accept the contention of the learned counsel for the respondent that had proper care been taken, Peritonitis would not have developed and that therefore the death cannot be related to the injuries sustained in view of explanation (ii) of section 299, It would be no defence at all to a charge of homicide to plead that death would not have occurred if proper medical treatment was given. However, In view of the infirmities pointed out by us in regard to the dying declaration contained in ext. P. 1 (a) and in the evidence of p. W. 7, We feel that it is not safe to act upon these items of evidence.
(33) ext p. 12 wound certificate is the first document, Which came into existence after the occurrence. It was the accident - cum - wound certificate issued on examination of, The deceased at 11. 30 a. M. On 8 - 9 - 1982. The history and the alleged cause of injury is stated as cutting with a sword stick. There is no mention of any beating with iron rod it is the evidence of p. W. 1 that sword stick: was used by the 1st accused and iron rod was used by the 2nd accused non - mention of cutting with iron rod in ext. P. 12 casts cloud on the veracity of the testimony of p. W. 1 regarding the complicity of the 2nd accused, Who is stated to have used iron rod in the above circumstances also, We feel that it is not safe to rely on the testimony of p. W. 1 in regard to the complicity of the 2nd accused in the crime.
(34) on a careful consideration of the entire evidence, We do not feel that we are justified in interfering with the order of acquittal passed by the learned sessions judge. We therefore hold that the 2nd accused is not guilty of any of the offences charged against him and confirm the order of acquittal passed by the learned sessions judge and dismiss the appeal and criminal revision case. Appeal dismissed