Johnson John, J.

1. The sole accused in S.C No.666 of 2018 on the file of the Additional Sessions Judge - IV, Kollam, filed this appeal challenging the conviction and sentence imposed on him for the offences under Section 302 IPC and Section 27 of the Arms Act as per the impugned judgment dated 17-06-2019.

2. The prosecution case is that the accused suspected illicit relationship between his wife and the deceased Prasad and on 20-01- 2016 at about 5.20 p.m., when the accused reached his house, he saw the deceased near his wife and because of that enmity and with the intention to commit the murder of Prasad, he chased the deceased in his Aviator scooter bearing registration No.KL-24-H-249 armed with a sword stick. When the accused reached near house bearing No.IV/153 of Kadakkal Grama Panchayat situated on the northern side of the Kuttikad Kottappuram Panchayat road, he saw the deceased standing in front of the said house and then the accused questioned the deceased and took the sword from the back of his shirt and stabbed on the left chest of Prasad. The deceased who sustained grievous injuries died on the spot and the accused is thereby alleged to have committed the offences as aforesaid.

3. On the basis of Ext.P1 First Information Statement of PW1, Ext.P13 First Information Report was registered by PW17 Sub Inspector of Kadakkal Police station. Thereafter, PW18, the then Sub Inspector of Kadakkal Police station conducted the investigation and after completing the investigation, the final report was filed by PW19, the then Circle Inspector of Kadakkal Police station, before the Judicial First Class Magistrate, Kadakkal and after committal and on the appearance of the accused before the trial court, charge was framed under Sections 341 and 302 IPC and Section 27 of the Arms Act and when the charge was read over and explained to the accused he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 19 and marked Exts.P1 to P43 and MOs 1 to 10 to prove the charge against the accused. Since it was found that the accused is not entitled for an acquittal under Section 232 Cr.P.C, he was called upon to enter on his defence. From the side of the accused, DWs1 to 5 were examined and Exts.D1 to D6 were marked.

4. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge by the impugned judgment dated 17-06-2019 convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for one year for the offence under Section 302 IPC and to undergo rigorous imprisonment for one year for the offence under Section 27 of the Arms Act.

5. Heard Sri.Latheesh Sebastian, the learned counsel for the appellant and the learned Public Prosecutor Sri.E.C.Bineesh and perused the records.

6. The point that arises for consideration in this appeal is whether the conviction and the sentence passed against the accused is legally sustainable.

7. The learned counsel for the appellant argued that the evidence adduced from the side of the prosecution is of a circumstantial nature and the prosecution has not succeeded in fully establishing the circumstances from which the conclusion of guilt is to be drawn and that there are serious contradictions and inconsistencies in the evidence of the material witnesses who supported the prosecution. But the learned Public Prosecutor argued that PWs2 and 3 are witnesses to the occurrence and their evidence is also supported by medical evidence, recovery of the weapon of offence on the basis of the disclosure statement of the accused and all the proved circumstances taken cumulatively has a definite tendency unerringly pointing towards the guilt of the accused and that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else.

8. PW1 is the brother of the deceased, who preferred Ext.P1 First Information Statement and his evidence shows that on getting information from his friend that his brother sustained a stab injury and lying near the house of Sasi Annan, he reached the place of occurrence and at that time the injured was being taken to the hospital and by the time they reached the hospital, he was no more. PW1 identified his signature in Ext.P1 First Information Statement and according to PW1, previously there was a quarrel between the accused and the deceased on the allegation that the deceased is having illicit relations with the wife of the accused.

9. PW2 deposed that at about 5.30 p.m., on 20-01-2016, the deceased Prasad came to her house and enquired about her husband and since her husband was not there in the house, she gave the phone number of her husband to the deceased and at that time, the accused came there in a scooty and there was some verbal altercation between the accused and the deceased and then the accused took something from his back and swung against the deceased and at that time she went inside the house to contact her husband through phone and then she heard the sound of a metal pipe falling and when she came out of the house, she saw the accused running in the direction of the house of her sister and the deceased following him and falling to the ground. PW2 also clarified that when she entered her house to contact her husband through phone, only the accused and the deceased were in the courtyard of her house and the scooty in which the accused came there was also near the sit-out of her house. The evidence of PW2 shows that she has given a statement under Section 164 Cr.P.C to the Magistrate and the same is marked as Ext.P2. PW2 deposed that she also saw a metal pipe lying in the courtyard of her house and that the same was subsequently taken by the police.

10. PW3 is the brother of the husband of PW2 and his evidence shows that he is residing near to the house of PW2. PW3 cannot remember the date of occurrence, but he would say that at about 6.00 p.m., while he was standing in the courtyard of his house, he saw the accused proceeding in a scooty towards the house of PW2 and two minutes thereafter, he heard the cry of PW2 and when he rushed to that place, he saw the accused running from there and the deceased lying in supine position in front of PW2 and blood oozing from the mouth and nose of the deceased. According to PW3, even though the injured was taken to hospital, he later came to know about his death. Ext.P3 is the statement under Section 164 Cr.P.C given by the witness to the Magistrate. PW3 also identified the accused before the court.

11. PW7 is a witness to Ext.P4 inquest report. PW8 was the driver of the ambulance in which the injured was taken to the hospital. According to PW8, the Doctor, after examining the injured, declared that he was dead. According to PW8, after the inquest, the body of the deceased Prasad was taken to the medical college hospital in his ambulance. PW8 deposed that he reached the place of occurrence after getting a telephone call from the brother-in-law of the deceased and when he reached there, the deceased was lying near a rubber tree and blood was oozing from his mouth.

12. PW9 is a witness to Ext.P5 mahazar for the recovery of a bike bearing registration No.KL 24-A-5960. PW16 was the then Village Officer of Kadakkal Village, who prepared Exhibit P2 scene plan. PW17 was the Sub Inspector of Kadakkal Police Station, who registered Exhibit P13 FIR on the basis of of Exhibit P1 First Information Statement on 20.01.2016.

13. PW15 was the Assistant Professor and Assistant Police Surgeon in the Forensic Department, Medical College Hospital Thiruvananthapuram, who conducted the postmortem examination on the body of the deceased Prasad on 21.01.2016 and issued Exhibit P11 postmortem certificate. The evidence of PW15 and Exhibit P11 shows the following ante-mortem injuries:

“Injuries (Ante-Mortem)

1. Incised penetrating wound 2.6 x 1 cm, oblique on left side of chest with the upper inner blunt end 15 cm below the front fold of ampit and 19 cm outer to midline. The chest cavity was penetrated through the VI intercostal space by cutting the intercostal muscles and partially cutting the VI and VII ribs, pierced the left lung through the front aspect of upper part of lower lobe, layers of the pericardium near its attachment reflecting a flap of heart muscle (3 x 2.1 x 0.2 cm) forwards and upwards and traversing through interlobar area of the right lung and lower division of right bronchus and terminated in the right chest cavity. The total minimum depth of the wound was 2.9 cm. Pericardial sac contained 20gm blood clot. The left chest cavity contained 395 gm blood clot and 100 ml fluid blood and right chest cavity contained 560 gm of blood clot and 450 ml fluid blood. The lungs were partially collapsed.

2. Contusion 5 x 4 x 1 cm on the left side of back of head, 7 cm behind the top of root of left ear.

3. Abrasion 4 x 2 cm on front of lower part of right knee.”

14. According to PW15, death was due to incised penetrative wound sustained to the chest. PW15 stated that injury No.1 can be caused by stabbing with a pointed sharp edged object and that injury No.1 alone is sufficient to cause death.

15. PW18 was the Circle Inspector of Kadakkal Police Station, who conducted the investigation of this case from 21.01.2016 onwards. PW18 deposed that he prepared Exhibit P4 inquest report and thereafter, reached the place of occurrence and prepared Exhibit P15 scene mahazar and at that time, he also recovered 2 footwears and the cover of a sword from the place of occurrence. The footwears are marked as MO2 series and the cover of the weapon as MO1. He also recovered a blood stained wood piece and a mobile phone from there and the same are marked as MOs 3 and 4 respectively. PW18 stated that he recovered scooty bearing registration No. KL-24-H-249 used by the accused to reach the place of occurrence and the property list prepared in this connection is marked as Exhibit P16. The dress of the deceased taken to custody at the time of the inquest are marked as MOs 5 to 7.

16. The evidence of PW18 shows that he searched the house of the accused and recovered his passport and passbook and the same are marked as Exhibits P22 and P23 respectively. The search list and search memo prepared in this connection are marked as Exhibits P20 and P21. PW18 testified that he arrested the accused from Kollam Railway Station on 31.01.2016 and the arrest memo, inspection memo and custody memo are marked as Exhibits P10, P26 and P27 respectively. According to PW18, he recorded the confession statement of the accused and on the basis of the disclosure statement of the accused that he kept the stick sword in the shrubs on the western side of the Panchayat road at Kadakkal Village and as led by the accused, he reached the said place and the accused took out the stick sword from the shrubs and the same was recovered by preparing Exhibit P6 mahazar. The relevant portion of the disclosure statement of the accused is marked as Exhibit P28. PW18 identified the stick sword recovered as MO9.

17. Exhibit P29 is the property list prepared for producing MO9 before the court. According to PW18, he also recovered the dress worn by the accused at the time of occurrence as per Exhibit P9 mahazar, and MO10 is the lungi of the accused recovered as per Exhibit P9 mahazar. PW18 also recovered bike bearing registration No. KL-24-1347 used by the accused to escape from the house as per Exhibit P8 mahazar. He recovered bike bearing reg. No. KL-24-A 5960 used by the deceased to reach the place of occurrence by preparing Exhibit P5 mahazar. PW14 identified his signature in Exhibit P10 arrest memo of the accused and PW13 is a witness to Exhibit P9 mahazar.

18. PW11 was a Senior Civil Police Officer at Kadakkal Police Station and his evidence shows that he is a witness to Exhibit P7 mahazar prepared by the Investigating Officer. PW12 is a witness to Exhibit P8 mahazar for the recovery of the bike. But, in cross examination, he stated that it is not known to him whether the police recovered anything from the place. PW10, Village Officer, identified his signature in Exhibit P6 recovery mahazar and stated that he signed the mahazar on 31.01.2016 at 12.15 p.m. at Thazhemukku and that he saw the accused Sunil Kumar pointing out to the police a stick sword in the shrubs and the police recovered the same.

19. Even though, the learned counsel for the appellant argued that the evidence of PWs 2 and 3 are of a circumstantial nature and that they have not witnessed the accused stabbing the deceased, we find that the evidence of PW2 regarding the occurrence is not merely of circumstantial nature, as PW2 has categorically deposed that she saw the verbal altercation between the accused and the deceased in the courtyard of her house. The relevant portion of the evidence of PW2 is extracted below for convenient reference:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

20. The above evidence of PW2 clearly shows that she witnessed not only the verbal altercation between the accused and deceased, but also saw the accused taking out something from behind and attempting to assault the deceased with the said object and it was at that time, she returned to the house to telephone her husband and then, she heard the sound of the fall of a metal pipe. The evidence of PW2 clearly shows that when she came out of the house, the accused was seen running towards the side of the house of her sister and the deceased following him and falling down in the nearby property. It is in evidence that PW3 is residing near to the house of PW2 and he saw the accused travelling in a scooty towards the house of PW2 on the date of occurrence at about 6 p.m. and 2 minute thereafter, he also heard the cries of PW2 and he rushed to the place of occurrence.

21. The evidence of PW3 shows that he saw the accused running from there and the deceased lying there in supine position with bleeding from mouth and nose. Even though, PWs 2 and 3 were seriously cross examined, no material omission or contradiction was brought out and further there is no material before the court to show that there is any reason for PWs 2 and 3 to falsely depose against the accused and therefore, we find that the evidence of PWs 2 and 3 regarding the occurrence is natural and reliable.

22. DW1 is a Senior Consultant and Chief Cardiovascular Thoracic Surgeon attached to Sun Medical and Research Centre, Thrissur and he was examined from the side of the defence to discredit the evidence of PW15 and the findings in Exhibit P11 postmortem certificate regarding the nature of injury and the weapon of offence. But, he admitted in cross examination that he is not a forensic expert and that only a forensic expert is competent to depose about the dead body. In cross examination, DW1 admitted that he cannot say at what time rigour mortis will start and disappear in a dead body. The evidence of DW2, finger print expert attached to D.C.R.B., Kollam, only shows that he developed 3 chance prints from the cover of the weapon seized from the place of occurrence and subsequently, filed a report to the effect that the same is not identical with the fingerprint slips of the accused. DW2 admitted in cross examination that if the object is recovered from an open space, the finger print will be that of the person who handled the same and since the cover of the weapon was recovered from an open space, the process of elimination was not possible.

23. The Health Inspector of Community Health Centre, Nilamel, is examined as DW3 and his evidence shows that he has not received any complaint, as required to be produced in the summons. DW4 was originally cited from the side of the prosecution as a witness to Exhibit P15 mahazar. He denied his signature in Exhibit P15 mahazar and subsequently given up by the prosecution. However, his evidence shows that he is a neighbour of PW2, Anitha Rani.

24. The wife of the accused is examined as DW5 and she would say that bike bearing registration No. KL-02-1347 and scooty bearing registration No. KL-24-H-249 were taken to custody from her house by the Investigating Officer. According to DW5, herself or her husband has not filed any complaint against the deceased in Kadakkal Police Station.

25. The defence has no case that the death of the deceased is not a homicide. The evidence of PWs 2 and 3 and the evidence of PW15, doctor who conducted the postmortem, and the ante-mortem injuries noted in Exhibit P11, postmortem certificate, clearly proves that the death of the deceased is a homicide. We have already found that there is no reason to disbelieve the evidence of PWs 2 and 3 regarding the occurrence. The evidence of PWs 2 and 3 regarding the occurrence is corroborated by the recovery of MO9 sword by the Investigating Officer on the basis of the disclosure statement of the accused and the knowledge of the accused as to where he concealed the weapon of offence is a relevant fact admissible under Section 27 of the Indian Evidence Act.

26. PW5 is conducting a Travel Agency at Pathanamthitta and his evidence shows that on 21.01.2016, one Sujeev reserved a seat in the bus for going to Selam and he identified the accused as the person who travelled in the bus to Selam at 5 p.m. In cross examination, PW5 stated that the police has shown the accused to him and he denied the suggestion of the defence that he is seeing the accused for the first time in court.

27. PW6, Sujeev, deposed that the accused is his relative and that he booked a ticket for the accused with Rugma travels on 21.01.2016 and at about 5 p.m., the accused reached his house in a motor bike and after parking the bike in his house and borrowing Rs.3000/- from him, the accused boarded the tourist bus. The evidence of PW6 further shows that the police recovered the said bike from his house. In cross examination, PW6 deposed that he did not tell the police that he paid Rs.3000/- from the amount kept for repairing the autorickshaw and the said portion in his statement to police is marked as Exhibit D1. PW6 also stated that he did not tell the police that he has no close acquaintance with the accused and that only occasionally, they used to meet and the said portion in his statement to the police is marked as Exhibit D2.

28. On a careful evaluation of the entire evidence of PW6, we find that Exhibits D1 and D2 cannot be accepted as material contradictions to disbelieve the evidence of PW6 that he booked a ticket for the accused on 21.01.2016 and that the accused boarded the bus after reaching his house in a motorbike and borrowing Rs.3000/-. The evidence of PW6 in this regard is also supported by the evidence of PW5. The evidence of PWs 2 and 3 shows that the accused escaped from the place of occurrence and that he abandoned the cover of the sword in the courtyard of the house of PW2 and from the evidence of PWs 5 and 6, it can be seen that on the next day of the occurrence, he reserved a ticket in a tourist bus to Selam and he boarded the said bus after parking his motorcycle at the house of PW6.

29. Further the recovery of scooty bearing registration No. KL-24- H-249 in which the accused came to the place of occurrence, is also a strong circumstance to corroborate the evidence of PWs 2 and 3 regarding the occurrence. It is pertinent to note that there is no satisfactory explanation from the side of the accused at the time of 313 questioning and from the proved circumstances of the case, we find no reason to disagree with the observation in the impugned judgment that the accused has failed to discharge his obligation under Section 106 of the Indian Evidence Act, as it is well settled that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

30. We have already found that the evidence PWs 2 and 3 regarding the occurrence is natural and reliable and that there is no material omission or discrepancy in their evidence. It is well settled that normal discrepancies in evidence are those which are due to normal errors of observations and normal errors of memory due to lapse of time and such discrepancies and errors will always be there, however honest and truthful a witness may be.

31. In State of Uttar Pradesh vs. M.K. Anthony [AIR 1983 SC 48], the Honourable Supreme Court held that minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. It is well settled that when material witness is examined at length it is possible for him to make some discrepancies and no true witness can possibly escape from making some discrepant details.

32. In Zahira Habibullah H. Sheikh V. State Of Gujarat 2004 (4) SCC 158, [LQ/SC/2004/509] the Hon’ble Supreme Court held thus:

“A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.”

33. On a careful reappreciation of the entire evidence, we find that the evidence of PWs 2 and 3 regarding the occurrence is supported by the recovery of the weapon of offence on the basis of the disclosure statement of the accused as well as the recovery of the vehicle in which the accused reached the place of occurrence and the subsequent escape of the accused from the place of occurrence and boarding a bus to Selam on the next day of the occurrence and further considering the short time gap in between PW2 entered her house to telephone her husband and thereafter, saw the accused running away from there and the deceased falling down, we find that the said time gap is so small so as to rule out the possibility of any other person other than the accused causing the fatal injuries to the victim and therefore, we find that the proved circumstances has a definite tendency unerringly pointing towards the guilt of the accused and we find no reason to interfere with the findings of the court below in this regard.

34. The learned counsel for the appellant finally argued that the appellant is entitled for the benefit of the first exception to Section 300 IPC and in this regard, the learned counsel for the appellant pointed out that the specific case of the prosecution is that the deceased had some illicit relationship with the wife of the accused and on 20.01.2016, at about 5.20 p.m., the accused saw the deceased and his wife together in his house and therefore, it is clear that the accused, who was deprived of the power of self control by grave and sudden provocation, caused the death of the deceased. But, in this case, it is in evidence that the occurrence took place, while the deceased was standing in the courtyard of the house of PW2 at about 5.30 p.m., on 20.01.2016 and that the accused came there in a scooty armed with MO9, sword, and inflicted the fatal injuries on the deceased and there is no evidence in this case to show that there was any sudden provocation from the side of the deceased at the time of occurrence.

35. In order to satisfy the requirements of exception (1) of Section 300 IPC, it is to be proved that the offender was deprived of the power of self control by a grave and sudden provocation and the said provision itself shows that the said exception is subject to 3 conditions, and for convenience, exception (1) of Section 300 IPC is extracted below:

“Exception 1.—When culpable homicide is not murder.—

Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the

provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:—

First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.”

36. In K. M. Nanavati v. state of Maharashtra [AIR 1962 SC 605 [LQ/SC/1961/372] ], the Honourable Supreme Court held that the first test is whether a reasonable man, of the same sociological strata as the accused, would lose his self control in a similar situation. The next important aspect to be considered is whether the provocation is of such a nature as not to leave room for pre meditation and contemplation, and the act must solely be rooted in the passion of the moment. It cannot be disputed that the graveness and suddenness of the provocation must both be simultaneous.

37. It is for the accused to prove the ingredients of exception (1) of Section 300 IPC and in this case, there was no attempt on the part of the appellant while cross examining the material witnesses to establish that there was a grave and sudden provocation from the side of the deceased and that the accused committed the act deprived of the power of self control, but the evidence from the side of the prosecution clearly shows that the accused reached the place of occurrence armed with MO9 sword and he inflicted the fatal injuries after a verbal altercation with the deceased, while the deceased was standing in the courtyard of the house of PW2 and the fact that the accused reached the place of occurrence armed with a deadly weapon like MO9 sword clearly shows that the accused committed the act with premeditation and therefore, on a careful reappreciation of the entire evidence, we find no merit in the contention of the learned counsel for the appellant in this regard.

38. Therefore, we find that the trial court was right in convicting the accused for the offence under Section 302 IPC and Section 27 of the Arms Act and in view of the fact that the court below has awarded the minimum sentence of imprisonment for life for the offence under Section 302 IPC, we find no reason to interfere with the sentence imposed on the accused by the trial court.

39. In the result, this appeal is dismissed confirming the conviction entered and the sentence passed by the learned Additional Sessions Judge in S.C No. 666 of 2018. Interlocutory applications, if any pending, shall stand closed.