REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 839 OF 2006

Myladimmal Surendran & Ors.          ...Appellants

VERSUS

State of Kerala                        …Respondent

W I T H

CRIMINAL APPEAL NO.840 OF 2006

Arayakkamdy Sukumaran @ Suku                  …Appellant

VERSUS

State of Kerala                                              …Respondent

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. These  appeals  have  been  filed  against  the  common  

judgment passed by the High Court of Kerala, at Ernakulam in  

Criminal  Appeal  Nos.  214  and  159  of  2005  filed  by  the  

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accused/appellant  no.1  and  accused/appellant  no.3  to  

accused /appellant no.5 respectively whereby the High Court  

was  pleased  to  confirm  the  conviction  of  the  

accused/appellants under Sections 143, 147, 148, 341, 302  

read  with  149  IPC,  but  partly  allowed  their  appeals  to  the  

extent  that  the  sentence  of  death  imposed  upon  by  the  

Sessions Court was converted to imprisonment for life.  

2. Both the trial court and the High Court have concluded  

that the deceased was killed due to political  vendetta.   The  

conclusions  reached  by  the  two  Courts  do  not  seem to  be  

without basis.  The High Court has noticed that there were  

many political murders and other crimes in Kannur district of  

Kerala  at  the  time  when  Sri  Panniyannur  Chandran  was  

murdered.   He  was  murdered  to  avenge  the  murder  of  an  

activist  of  the  Communist  Party  of  India  (Marxist),  

Mamman Vasu within the limits of Checkli Police Station.  At  

that time, the deceased, Sri Panniyannur Chandran was the  

Secretary  of  the  District  Committee  of  BJP.   Following  the  

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murder of Mamman Vasu, death threats were often received  

by the deceased.  He was thought to be the brain behind the  

murder of the CPM activist.  It was said that such threats were  

made even in the Peace Committee Meetings that followed the  

killing of  Mamman Vasu. The State Special  Branch officials  

being satisfied about the possible threat to the life of deceased  

had conveyed the information to the local police station of the  

area in  which the  deceased resided.  Consequently,  a  Police  

Picket was set up near the house of the deceased to provide  

security.  Tragically, it appears that in spite of all the security  

measures, the assailants had their way.  He was murdered on  

25.5.1996 in broad day light,  in front  of  his  wife.   He was  

literally hacked to death, by trained killers.     

3. We may now notice the facts.  

4. On  25.5.1996,  between  2:30  and  3:00  p.m.  

Sri  Panniyannur  Chandran  accompanied  by  his  wife,  

Arundhuti  (hereinafter  referred  to  as  PW1)  went  to  the  

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Thalassery Railway Station riding a motor bike to see off his  

brother-in-law to Madras. On their return, they met the father  

of the deceased, who told them that he was going to the ration  

shop to buy rice.  On their way back, when they had almost  

reached home, they found that the road had been blocked by  

Arayakkamdy  Sukumaran  @  Suku  (hereinafter  referred  to  

as  A1),  Thayyullathil  Thazhekuniyil  Pavithran  @  Pavi  

(hereinafter  referred  to  as  A2),  Myladimmal  Surendran  

(hereinafter referred to as A3), Kaithayullaparambath Preman  

(hereinafter  referred  to  as  A4)  and  Kunhiparambath  

Purushothaman  @  Purushu  (hereinafter  referred  to  as  A5).  

They  were  all  armed  with  deadly  weapons.   Though  the  

deceased attempted to avoid them, he was unable to do so, as  

the engine of the motor cycle went dead. The wife jumped off  

the motorcycle just before it fell.  She ran away.  Then from a  

distance  she  saw  that  A1  assaulted  the  deceased  with  a  

billhook  which  injured  his  left  hand.  The  deceased  started  

running towards his house hotly chased by the accused armed  

with deadly weapons. The wife ran to the place where they had  

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met CW1. But hearing her screams, CW1 was already coming  

towards the trouble spot. On meeting CW1, she informed him  

about the incident. She then ran to the house of her husband  

thinking that the deceased must have reached home. Finding  

that her husband was not in the house, she again ran back,  

with the sister of the deceased, to the place of assault. She  

found the deceased lying with his head on the lap of his father.  

According to the wife, the incident occurred at about 4:45 p.m.  

At that time, she did not know the names of the accused. She  

was told the names by CW1 after three days.  

5. The Policemen on picket duty reached the spot and took  

Panniyannur  Chandran  to  the  general  hospital  where  he  

breathed  his  last  at  5:50  p.m.  The  father  of  the  deceased  

reported the incident which was recorded by the C.I. of Police,  

Thalassery. The investigation was carried on for sometime by  

the local  Police  but  eventually  for  efficient  investigation the  

case was transferred to the Crime Branch. PW17, a Detective  

Inspector  of  the  Crime  Branch  conducted  the  investigation  

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from  that  point  onwards.  In  the  mean  time  A1  to  A5  

surrendered  before  the  Addl.  C.J.M,  Thalassery  and  were  

remanded  to  custody.  After  investigation,  PW17  submitted  

final  report  against  A1  to  A5  in  the  court  of  Addl.  CJM,  

Thalassery  for  offences  under  Sections  143,  147,  148,  341  

and  302  read  with  149  IPC.   At  that  stage  A2  absconded.  

Therefore  the  case  against  A2  was  split  up  and  the  case  

against A1, A3 to A5 was committed to the Court of Sessions,  

Thalassery.  Since  the  accused pleaded not  guilty  they  were  

duly put on trial.  

6. By order dated 12.11.2004, the Sessions Court convicted  

the  appellants  herein  for  the  offences  punishable  under  

Sections  143,  147,  148,  341  and  302  IPC.  For  the  

offences  punishable  under  the  aforesaid  Sections  (except  

Section  302  IPC)  they  were  sentenced  to  undergo  rigorous  

imprisonment for different periods, varying from two months  

to three years. They were, however, sentenced to death for the  

offence under Section 302, IPC.

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7. Challenging  the  aforesaid  judgment,  A1  filed  Criminal  

Appeal No. 214 of 2005 and A3 to A5 filed Criminal Appeal  

No. 159 of 2005 before the High Court of Kerala at Ernakulam.  

The High  Court  vide  order  dated 16.11.2005 confirmed the  

conviction of the accused under Section 302 read with 149 IPC  

but the sentence of death was converted to imprisonment for  

life.   Aggrieved  by  the  said  judgment,  A1  filed  Crl.  Appeal  

No. 840 of 2006 and A3 to A5 filed Crl. Appeal No. 839 of 2006  

before this Court.

8. We  have  heard  Mr.  Surinder  Singh,  learned  Senior  

Advocate for the appellants and Mr. R. Satish on behalf of the  

respondent State.

9. After taking us through the relevant materials relied on  

by  the  prosecution,  Mr.  Surinder  Singh  learned  Senior  

Advocate raised the following contentions:

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(i) Ext P1, the First information Statement was given  

by the father of the deceased (CW1), who died one  

year before trial. The FIS has been wrongly used as  

a  substantial  piece of  evidence to  corroborate  the  

evidence given by the prosecution witnesses. In the  

First Information Statement, he had stated that the  

incident occurred while his son was returning from  

the  Railway  Station  together  with  his  wife  (PW1)  

after seeing off his brother in law. He had further  

stated that earlier at  about 3 p.m.,  three persons  

had  come  to  his  house  and  enquired  about  

whereabouts of the deceased. He had told them that  

his son had gone to the railway station and would  

be  coming  back  by  about  4:30  p.m.  He  had told  

them to wait for his son in the house. He then left  

for the Ration Shop to buy rice. On his way to the  

Ration Shop, he had met his son returning on his  

motorcycle with his wife. On enquiry from his son,  

he had told him that he was going to buy rice from  

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the Ration Shop. Soon thereafter, he heard the cries  

of his daughter-in-law. He rushed back to the place  

where  he  had  met  his  son.  There  he  saw  

Arayakkamdy  Sukumaran  @  Suku  and  others  

assaulting  the  deceased with  deadly  weapons.  He  

stated  that  the  assault  on  his  son  was  due  to  

political rivalry.

(ii) The FIR is not the correct version of the assault and  

the  death  of  the  victim.  The  FIS  is  the  earliest  

version  of  the  incident.  The  prosecution  cannot  

thereafter  give  a  different  version.  In  the  FIS  the  

name  of  the  main  culprit  is  given  as  “Suku  of  

Arayakkamdy House”. The name of the first accused  

in the trial is Suku (short for Sukumaran).

(iii) The FIR was not sent to the Magistrate forthwith, as  

is evident from the seal of the court of Magistrate,  

which  is  dated  29th May.  Surprisingly,  the  

Magistrate has initialed the FIR on 26.5.1996.  

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(iv) It  is  then  submitted  that  even  if  the  delay  in  

recording the FIR is not fatal, the High Court ought  

to have scrutinized the evidence meticulously.  

(v) The recovery of the MOS itself was not acceptable  

under Section 27 of the Evidence Act.  

(vi) The dying declaration that “Suku and others” had  

committed  the  crime  is  unreliable.  With  so  many  

injuries, it is impossible that the victim would give a  

coherent  answer to any question.  In fact,  PW7 at  

the Police  Picket  stated that the name uttered by  

the victim was not clear to him.    

(vii) The  learned  senior  counsel  submitted  that  there  

was suspicion regarding the identity of the accused  

as no test identification parade was conducted. PW1  

identified the accused in court after eight years and  

three months. Since PW1 did not know the accused  

it would be unsafe to rely upon her identification of  

the accused.  

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(viii)  The  learned  senior  counsel  then  attacked  the  

evidence of PW2 and PW3. According to the learned  

senior counsel,  there is no explanation, why their  

statements  were  recorded  3  or  4  days  after  the  

incident.  Both  the  witnesses  being  BJP  

sympathizers were planted by the prosecution.  

(ix)  Another  submission  made  by  the  learned  senior  

counsel was that if the identify of the accused was  

known, their names would have been mentioned at  

the Police Picket.  

10. On the other hand Mr. R. Satish, learned counsel for the  

State of Kerala, submitted that:

(i) The trial court and the High Court have convicted  

the accused on the basis of the eye-witness account  

of three witnesses. PW1 is the wife of the deceased.  

She had no reason to falsely implicate anyone.

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(ii)    The evidence given by the wife is consistent with the  

evidence  of  PW2  and  PW3,  who  witnessed  the  

second phase of the murderous assault.   

(iii)  The presence of PW2 and PW3 cannot be doubted on  

the ground that they are chance witnesses or that  

they are partisan witnesses.

(iv)   The nature of injuries caused are consistent with the  

weapons used, by the assailants.  

(v)    Medical evidence confirms the ocular evidence.

(vi)  The dying declaration also adds further corroboration  

to the eye-witness account given by PW1, PW2 and  

PW3.    

(vii)   Non holding of the test identification parade would  

not weaken the eye-witness account of PW1, PW2  

and PW3. All of them have identified the accused in  

court.  

(viii)  There is no delay in recording the FIR. There is also  

no delay in sending a copy of the FIR to the Judicial  

Magistrate, Ist Class.  

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(ix) Both  the  courts  have  given  concurrent  findings,  

therefore,  no case is made out for interference by  

this Court.   

11. We  have  considered  the  submissions  made  by  the  

learned counsel. Given the seriousness of the allegations made  

as also the imposition of the death penalty by the trial court,  

the High Court, in our opinion, correctly considered the entire  

evidence with great care and caution. The other reason which  

impelled the High Court to take this cautionary approach was  

that this was one of the many political murders and crimes  

which  had  been  committed  in  Kannur  District  during  the  

relevant  time.  It  was  noticed  that  the  deceased  was  a  BJP  

leader and the accused were workers of the Marxist Party. It  

had come in evidence before the trial court that the deceased  

had been a candidate of the BJP in the General Election for  

the Peringalam Assembly Constituency. Even though he had  

got only 10,000 votes, he had been threatened that he would  

be  killed.  Consequently,  the  police  aid  post  had  been  

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established  about  150  meters  near  his  house.  The  added  

reason for danger to the life of the deceased was that he was  

suspected to be a mastermind behind the murder of a Marxist  

Party activist called Mamman Vasu. Demands had been made  

by the Marxist Party, as well as the public in general, for the  

deceased to be arrayed as an accused in the aforesaid murder.  

The High Court also noticed that the danger to the life of the  

deceased became stronger when the LDF Government came to  

power. To make it even worst, the house of the deceased was  

situated in a disturbed area.  

12. The High Court thereafter examined the entire evidence  

threadbare and concurred with the conclusions reached by the  

trial court. We see no reason to doubt, let alone differ with, the  

conclusions which seem to flow naturally from the evidence on  

record.  Although the conviction of the accused persons was  

confirmed,  the  High  Court  converted  the  death sentence  to  

imprisonment for life.  

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13. At the outset, we may notice that this is one of those rare  

cases  where  the  wife  is  an  eye-witness  to  the  murderous  

assault,  which resulted  in  the  death of  her  husband.   She  

appeared  in  the  Court  as  PW1.   In  her  evidence,  she  has  

clearly  stated that  on 25.5.1996 she and her  husband had  

gone  to  the  local  railway  station  to  see  off  her  brother  on  

the  train  to  Madras.  They  had  set  off  from  the  house  

between 2.30 p.m.  to  3  p.m.  on her  husband’s  motorcycle.  

They left the railway station after 3.45 p.m.  On the way back  

home, they bought some apples from fruit stall and put them  

in a box attached to the motor bike. When they reached near  

the  house  they  met  CW1 father  of  the  deceased.  On being  

asked by her husband, CW1 told them that he was going to  

the Ration Shop to buy some rice. Whilst they were on their  

way home, they saw five persons standing in the middle of the  

road at the curve. On being obstructed, her husband tried to  

go  round  them.  Tragically,  however,  the  engine  of  the  

motorcycle somehow got switched off. She immediately jumped  

off the motorcycle, which in any event fell down. She then saw  

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one of the accused persons hack her husband with a billhook.  

Her husband tried to block the blow by raising his left arm  

which in the process got injured. She started screaming. While  

running  away  from  the  scene,  she  saw  her  husband  also  

running  towards  the  house,  hotly  pursued  by  the  five  

assailants,  waving  their  deadly  weapons.  She  ran  to  locate  

CW1,  who  was  already  rushing  towards  the  trouble  spot,  

having  heard  her  shrieks.  She  then  witnessed  the  second  

assailant Purushu (A5) hack her husband with the billhook.  

She ran to the house of the deceased taking the canal road,  

thinking that he would have reached home by then. However,  

finding that her husband had not reached, she again rushed  

back to the scene of the incident, along with the sister of the  

deceased. It was at that time she saw her husband lying on  

the ground with his head on the lap of his father CW1. He had  

injuries all over his body and he was drenched in blood.  

14. In  her  evidence,  she  had  categorically  stated  that  the  

accused persons had attacked her husband at the stated time  

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and place. She, however, stated that she was not aware of the  

names of the accused persons at that time. The names were  

given to her by CW1 three days after the incident. During her  

deposition in court, she clearly stated that she can identify the  

assailants.  She  actually  identified  them  in  court.  When  

questioned in court, she categorically stated that her husband  

tried  to  turn  the  motorcycle  round  on  the  road,  but  it  fell  

down. She also stated that she ran to the house through the  

very same route where her husband and the assailants had  

also followed. She very clearly stated in court that the persons,  

that injured her husband, were the persons she identified in  

Court.  

15. The  High  Court  has  also  rightly  concluded  that  the  

evidence of PW1 is consistent with the evidence given by PW2  

and PW3. According to these witnesses,  on 25.9.1996, PW2  

accompanied by his friend PW3 had come to the house of the  

deceased.  He had promised to help PW2 to get the loan.  On  

reaching the house of the deceased at about 4.30 p.m. they  

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met CW1. He informed them that his son (the deceased) had  

gone to the railway station to see off  his brother-in-law.  He  

also  told  them that  the  deceased  was  to  come  back  home  

shortly, so they could wait in the house for him. CW1 also told  

them that he was going to Ration Shop to buy some rice. After  

about  4-5 minutes,  they left  the  house,  after  informing the  

sister  of  the  deceased that  they  will  meet  him on the way.  

When  they  had  moved  about  a  100  meters  away  from the  

house  they  heard  the  shrieks  of  a  woman.  They  started  

running towards  the  direction  from where  the  shrieks  were  

coming. At that time, they also heard the shouts of some men  

asking them to come fast. When they were about 50 meters  

away, they saw the deceased being chased by the five accused.  

They  were  holding  the  weapons  in  their  hands.  When they  

reached about 30 meters away, they saw one of the accused  

persons attacking (hacking) the deceased on the left side of the  

back. By that time, they were standing about 10 meters away  

from the deceased and the assailants.  

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16. PW2 had categorically stated that he saw the deceased  

being  hacked  with  a  billhook  with  a  curved  beak.  He  

specifically  named  the  accused  Sukumaran.  Upon  being  

brutally wounded, the deceased fell down.  The witness also  

stated  that  thereafter  all  the  five  accused  attacked  the  

deceased with their respective weapons. He recognized four of  

the persons present in court. He also stated that he knew the  

names of each of them and he can point out each person by  

name. The witness then actually pointed out the accused by  

name. This witness further goes on to state that the name of  

the absconding assailant is ‘Pavithran’. He stated that A3 was  

armed with an axe and the others with billhook with pointed  

beak/curved  beak.  He  identified  the  weapons  of  offence.  

According to this witness, the body of the deceased was badly  

cut up. By the time, the father of the victim, CW1 reached the  

spot,  the  five  assailants  had  fled  away.  They  carried  their  

weapons with them. It was only after that an explosion was  

heard from the Southern side of the place of incident. CW1  

took the head of the victim in his lap who was continuously  

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asking for water. By that time, two police men came running  

to the spot. One of them wiped out the blood from the face of  

the victim. He asked the victim ‘who did this to you’?  The  

victim  answered  ‘Suku  and  others’.  At  the  same  time,  

a neighbouring woman gave some water to the police men who  

then dripped the same into the victim’s mouth. The neighbour  

also  gave  them  some  more  clothes  which  were  used  for  

dressing the  wounds of  the  victim.  This witness,  thereafter,  

helped the police and other persons to put the victim into the  

jeep  who  was  then  taken  to  the  hospital.  The  witness  

categorically  stated  that  the  accused  were  known  to  him  

earlier as they were regular visitors at the arrack shop where  

he worked. He stated that A1 was a Mason, A2 Pavithran who  

is absconding was a carpenter, A3 was a bus cleaner, A4 was  

a coconut tree climber, A5 was a concrete worker. The witness  

even stated that he had given the names to the police at the  

time when the statement was recorded. Subsequently, when  

the statement was again recorded, he again gave the names.  

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This witness was cross-examined at length but his evidence  

could not be shaken.  

17. The  aforesaid  evidence  of  PW2 has  been  reiterated  by  

PW3. He also claimed to know all the accused. He also stated  

that he is prepared to identify the accused by naming them in  

court.  He  also  actually  identified  the  accused  in  court.  An  

effort was made to attack the character of this witness. It was  

sought to be projected that he was a BJP sympathizer. The  

aforesaid suggestion was stoutly denied by the witness.  He,  

however,  admitted  that  after  he  had  become  a  prosecution  

witness in this case, a false case had been registered against  

him which is pending. In the aforesaid case, false allegations  

of burning the CPI (M) office had been made.  

18. In  addition  to  the  aforesaid  witness,  the  High  Court  

noticed that PW4, the neighbour, had also reached the scene  

of the assault. This witness also stated that the deceased in  

reply to a question of the policemen stated while groaning with  

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pain, that ‘Suku and others’ were the assailants. This witness  

also accompanied the victim to the hospital  in the jeep. He  

confirmed that the deceased was facing assassination threats  

after  the  murder  of  Mamman  Vasu  at  Checkli.  He  further  

deposed  that  he  had  seen  in  the  newspaper  that  Marxist  

people  had  gone  on  Satyagraha  in  their  office  at  Checkli  

demanding inclusion of  the  deceased as  an accused in  the  

Mamman Vasu murder case. The witness further stated that  

in a public meeting he had heard that they will assassinate the  

deceased. The relevant part of the deposition which has been  

reproduced by the High Court in its judgment is as under :-   

“I saw in the news paper, a report of hunger strike by  Marxist  party  people  in  Checkli  asking  to  make  Chandrettan as an accused in Mamman Murder Case.  Like  wise  I  am told  that  there  was  speech  in  public  meeting of CPI(M) that Chandrettan would be killed.”

In his cross-examination, he stated that he is a BJP candidate  

and deceased was Kannur District Secretary of BJP. He also  

stated  that  he  had  told  the  doctor  that  he  had  seen  the  

deceased lying on the road with injuries all over his body.  

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19. The High Court  took notice of  the evidence of  another  

important witness PW7, who was posted in the Police Picket  

near the house of the deceased. He stated that they had gone  

to the scene of the crime when they were informed by some  

workmen  that  somebody  had  been  stabbed.  When  they  

reached the place of incident, they saw the deceased was lying  

covered with blood in the lap of his father CW1. This witness  

stated  that  he  had  asked  the  victim,  the  names  of  the  

assailants. In reply the victim had given the name which he  

was  not  able  to  understand.  He,  however,  stated  that  the  

victim was conscious at that time.  

20. With  the  aforesaid  consistent  eye-witness  account  of  

three witnesses together with the evidence of the witnesses for  

the period immediately after  the incident,  in our opinion,  it  

would  be  well-nigh  impossible  to  disturb  the  concurrent  

conclusions reached by the trial court and the High Court.  

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21. In  this  case,  unfortunately,  the  author  of  the  first  

information statement passed away before the trial.  He was  

none other than the unfortunate father of the victim.  In the  

first information statement which has been converted into a  

FIR, he has categorically stated that on hearing the screams of  

the daughter-in-law, he ran back towards the place where he  

had  met  his  son  and  daughter-in-law.  He  saw  that  the  

motorcycle  has  been  abandoned  in  the  road.  His  son  was  

running towards the house and he was being chased by five to  

eight persons. They were hacking his son with weapons like  

sword.  When  he  yelled  for  help,  the  accused  Arayakkamdy  

Sukumaran  @  Suku  hacked  forcefully  on  the  back  of  the  

deceased with a sword like weapon in his hand and ran away.  

After narrating the entire sequence as to how the victim was  

brought to the hospital he had stated that : -

“Chandran is the District Secretary of BJP. Sugu and  others are communists. Politically they are inimical to  Chandran. They hacked Chandran to death out of this  political  animosity.  Necessary  action may be taken in  this respect. The place of occurrence is within the limits  of the Panoor Police station.”       

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The High Court,  in our opinion,  correctly  observed that the  

statement could not be considered as a substantive piece of  

evidence.  

22. The High Court also accepted that the dying declaration  

in this case may not be sufficient for conviction of the accused.  

It  can,  however,  be  considered  for  corroboration  of  the  

evidence of other witnesses. It has been noticed earlier that  

PW2 and PW3 had categorically stated that the deceased even  

though badly injured had stated that the assailants were Suku  

and others. The High Court was also cautious to ensure that  

the injured was in a fit state to make the dying declaration. It,  

therefore, examined the evidence of the doctor who had clearly  

stated  that  even  after  being  brutally  injured,  the  deceased  

could have talked for another 20 minutes.  

23. The evidence given by the doctor who conducted the post  

mortem PW10, was noticed by the High Court minutely. The  

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post mortem certificate Ex.PW7 indicated the following injuries  

on the deceased :-

1. 4  c.m.  x  2  c.m.  gaping  linear  wound on  upper  scalp (R) side incised.

2. Transverse linear incised wound on top of  scalp  8c.m. x 3 c.m. from (L) top parietal region to past  the midline of the middle of the scalp cutting the  bone.

3. A slashed (RY) eyebrow hanging over the eye with  a piece of underlying bone, 7 c.m.

4. ® side of the nose is cut open and hanging (flesh)  incise ‘U’ shaped inverted.

5.  (L) car is transversely slashed from the tragus and  through the middle of the pinna into two, 7 c.m.  incised wound gracing occiput bone and mastoid.

6. 13 c.m. x 6 c.m. transverse incised wound on the  neck at the level of the (L) ear lobe gracing on the  mastoid.

7. On the back, (L) side below neck, gaping 7 c.m. x 5  c.m.  transverse  wound  and  its  tail  extends  superficially, 8 c.m. more laterally and downward  (in L Shape).

8. A linear incised wound 4 c.m. x 3 cm. just below  this wound.

9. 4 c.m. x 3 c.m. incised transverse wound 12 c.m.  below the neck.

10. 2.5  c.m.  long  incised  wound  on  skin  over  (L) shoulder blade.

11. Four linear slashed incised wounds on the back of  head  with  marks  on  the  skull  from  above  downwards (from    R to L 10 cm x 3 cm, 8 cm x  2.5 cm, 4.5 cm x 2.5 cm and 7 cm x 6 cm.

12. 11 c.m. long x 8 c.m. deep transverse incised cut  on the back of neck at the level of the 5th cervical  spine and cutting it and the spinal cord.

13. 12 c.m. long transversely oblique incised wound  cutting open the posterolateral left thigh and knee  joint 7 c.m. deep exposing the femoral condyle and  cutting it.  

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"

14. 15  c.m.  oblique  gaping  incised  wound  on  (L)  lateral  thigh  middle,  cutting  part  of  the  muscles and 4 c.m. deep.

15. 9 c.m. linear cut exposing the (L) shoulder 5 c.m.  deep  and  cutting  the  (L)  humeral  head  incising  and exposing it.  

16. Superficial transverse 5 c.m. long wound on back  of     (L) upper forearm (incised).

17. 6  c.m.  long  incised  slash  separating  the  ulnar  metacarpals of the (L) hand from the wrist 3.5 c.m.  deep and oblique.

18. Superficial incised 2.5 c.m. transverse wound over  the (L) wrist over the radial styloid.

19. The  right  cubical  fossa  is  slashed  open  7  c.m.  oblique incised and 4 c.m. deep.

20. 6 c.m. long through and through cut of ® wrist on  its back with opening of skin 2.5 cm. on he ventral  aspect in the corresponding oblique direction.

21. Oblique wound 6 c.m. incised exposing the M.C.P.  tendons of ® little ring and middle fingers on the  back of the ® palm, transverse.

22. Linear  contusions  dark  and  in  two  number  68  c.m.  each  in  length  on  ®  shoulder  and  transverse dark linear contusion on ® arm 6 c.m.  long  and  4  c.m.long  linear  contusion  ®  mid- forearm back.

23. Minor  contusion,  abrasions  three  in  number  on  (L) shoulder, two transverse and one linear.

24. Dark patches (L) flank abdomen (contusion) and  on      (L) knee, (L) le, ® shin, ® knee and ® Side  abdomen.

25. Skull  is  cut  from midline  to  (L)  parietal  regions  transversely  reaching  the  dura,  but  without  bleeding or injury to the brain.

26. Another 4 cuts on (L) occiput obliquely and over  (L) mastoid.

27. Abdomen  contains  partially  digested  food  materials.

28. Internal  viscera  pale,  intact,  including  brain  matter, liver, lungs, stomach, spleen, viscera and  heart.”        

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24. The doctor PW10 had stated that the cause of death was  

due to bleeding and irreversible shock neural and vascular. He  

had also stated that Injury Nos. 1, 4, 6, 7, 10, 15, 16, 17 and  

21 can be caused by weapon like MO1. Injury Nos. 2, 3, 5, 8  

and 9 can be caused by MO1 or a weapon similar to MO1.  

Injury Nos. 11, 13, 14, 18, 19 and 20 can be caused by MO2.  

Injury No.12 can be caused by a sharp-edged weapon like and  

an axe.

25. On specifically being asked, he had stated that it would  

be possible for the injured to speak even after sustaining the  

injuries  mentioned  above.  The  doctor  had  stated  that  after  

sustaining injury No.12 the victim must have received neural  

shock for sometime, say for about 5  minutes, and thereafter  

he would have been able to talk and drink, approximately for  

another 20 minutes. The doctor also opined after looking at  

the injuries that the same were caused by persons trained in  

killing.

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26. The High Court also rejected the submissions with regard  

to the delay in the registration of the FIR or with regard to the  

delay in transmission of the same to the Magistrate.  It  was  

noticed  by  the  High  Court  that  the  Judicial  Magistrate,  Ist  

Class  had  initially  received  the  FIR  at  11.30  a.m.  on  

26.5.1996.  The  incident  occurred  around  4.45  p.m.  on  

25.5.1996.  The  injured  was  brought  to  the  Government  

Hospital at 5.40 p.m.  The FIS of the father of the deceased  

was  recorded  at  7  p.m.  It  reached  Panoor  Police  Station  

at 9 p.m. Thereafter,  the FIR was registered. It  reached the  

residence of the Judicial Magistrate, Ist Class at 11.30 a.m.  

on  26.5.1996.  The  High  Court  notices  the  submission  on  

behalf of the accused that the seal of the court on the FIR was  

affixed  on  29.5.1996.  It  was,  however,  observed  that  the  

genuineness of the signature of the Magistrate on 26.5.1996  

was not questioned by the accused at any time. This apart, it  

was noticed that the investigating officer was not questioned  

regarding  the  authenticity  of  the  signature  of  the  Judicial  

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Magistrate,  Ist  Class.  It  was  also  noticed  that  28th was  a  

holiday, being Muharam, therefore, the seal being affixed on  

29.5.1996 would not be extraordinary.  The High Court  also  

found  that  in  case  the  recording  of  the  FIR  was  actually  

delayed,  as  suggested  by  the  accused,  it  would  not  be  

necessary to name only one accused person therein. If the FIR  

was  fabricated  then  all  the  accused  could  have  been  

incorporated.  In our opinion,  it  was rightly observed by the  

High Court that there was no unexplained delay in lodging the  

FIR and in sending the copy of the same to the Magistrate. In  

any  event,  no  prejudice  has  been  caused  to  the  accused  

persons.  

27. In  our  opinion,  the  evidence  given  by  the  wife  of  the  

deceased  in  this  case  was  unimpeachable.  It  could  not  be  

discarded, as stated by the learned senior counsel on the basis  

that she was an interested witness. If such a wide proposition  

was to be accepted the evidence of all the witnesses who were  

relatives  of  a  victim  of  a  violent  crime  would  be  rendered  

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unacceptable. Merely because PW1 happens to be the wife of  

the  deceased  would  not  justify  her  being  branded  as  an  

interested witnesses.  The evidence of the wife is followed by  

the consistent evidence given by PW2 and PW3. This is further  

corroborated  by  the  dying  declaration  made  by  the  injured  

within minutes of being assaulted. In such circumstances, it  

would be difficult  to  accept  the  submissions  of  the  learned  

senior counsel that the evidence of the eye-witnesses ought to  

be disbelieved.  

28. In  our  opinion,  the  High  Court  rightly  rejected  the  

submission,  which  was  also  reiterated  before  us,  that  the  

evidence of PW2 and PW3 should be rejected on the ground  

that they were chance as well as the partisan witnesses.   

29. We may at this stage notice the observations made by  

this Court in the case of  State of Rajasthan Vs.  Smt. Kalki  

and Another [(1981) 2 SCC 752] which is as under:-

“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  

31

‘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 PW1 had no interest in protecting  the  real  culprit,  and  falsely  implicating  the  respondents.”

30. In  our  opinion,  the  aforesaid  observations  are  fully  

applicable to the evidence of the PW1 in this case. Similarly,  

the  evidence  of  PW2 and PW3 cannot  be  brushed  aside  as  

chance witnesses. It has come in evidence that the deceased  

was the LIC agent. PW2 wanted to take a loan from the LIC for  

construction  of  his  house.  He,  therefore,  went  to  meet  the  

deceased  at  his  house.  He  was  accompanied  by  his  friend  

PW3.  Both  of  them  left  the  house  of  the  deceased  in  the  

circumstances  narrated  above  and  clearly  witnessed  the  

second assault on the deceased. This Court had occasion to  

disapprove  the  attitude  of  casually  branding  material  

witnesses to crimes of violence as chance witnesses in the case  

of  Sachchey Lal  Tiwari Vs.  State of  U.P. [(2004)  11 SCC  

410].  It was observed as follows:-

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“Murders  are  not  committed  with  previous  notice  to  witnesses,  soliciting  their  presence.  If  murder  is  committed  in  a  dwelling  house,  the  inmates  of  the  house are natural witnesses. If murder is committed in  a street, only passerby will be witnesses. Their evidence  cannot be brushed aside or viewed with suspicion on  the ground that they are mere ‘chance witnesses’. The  expression ‘chance witness’ is borrowed from countries  where every man’s home is considered his castle  and  everyone  must  have  an  explanation  for  his  presence  elsewhere  or  in  another  man’s  castle.  It  is  quite  unsuitable an expression in a country where people are  less formal and more casual, at any rate in the matter of  explaining their presence.”   

31. In our opinion,  these  observations of  this  court  are  of  

tremendous relevance given the cultural ethos of this country.

For the same reasons, we are unable to accept the submission  

of  the  learned senior  counsel  that  the  evidence of  the PW3  

ought  to  be  rejected  on  the  ground  that  they  are  partisan  

witnesses. Merely because PW2 and PW3 are sympathizers of  

BJP,  their  evidence cannot be brushed aside.  At  best,  their  

evidence  has  to  be  carefully  scrutinized.  On  such  careful  

scrutiny of  the evidence the trial  court  and the High Court  

have  clearly  and  in  our  opinion  rightly  concluded  that  the  

evidence of these witnesses could not be discarded.

33

32. Now, this brings us to the most important  submission  

made  by  the  learned  senior  counsel.  Mr.  Surinder  Singh,  

submitted that since no test  identification parade was held,  

prior to the witnesses deposing in court,  the identity of  the  

accused  has  not  been  established.  Learned  counsel  has  

submitted  that  it  is  in  fact  a  case  of  a  blind  murder.  The  

deceased was a political activist; he had political enemies. The  

prosecution has unnecessarily  dragged in the  names of  the  

accused appellants. Learned senior counsel had also pointed  

out the numerous weaknesses in the investigation of the case.  

He  submitted  that  the  benefit  of  doubt  clearly  had  to  be  

extended to the accused in the peculiar circumstances of this  

case. We have carefully examined the aforesaid submissions.

33. Earlier, this Court had the occasion to consider similar  

submissions in the case of  Ramanbhai Naranbhai Patel Vs.  

State of Gujarat, (2000) 1 SCC 358. In that case also, the  

murder of the husband had been committed in front of the  

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wife. Justice S.B. Majmudar speaking for the Court observed  

as follows:  

“……there is  direct  eyewitness account  deposed to  by  the  witness  Dhirubhai  Mohanbhai  (brother  of  the  deceased),  witness  Dhirubhai  Premjibhai,  PW  5,  the  tenant  residing  in  the  locality  and  Dilipbhai,  the  younger brother of the deceased. These witnesses have  clearly  deposed  that  they  knew  the  accused.  In  fact,  Dilipbhai  was  the  person  who  was  involved  in  the  incident of the previous day wherein Accused 1 and his  accomplices had a quarrel with him and his supporters.  That  part  of  the  evidence  of  these  eyewitnesses  had  remained well  sustained on record.  So far as witness  Niruben was concerned, she is the wife of the deceased  Ramanbhai  Mohanbhai.  The  accused  mounted  an  assault  on  her  husband  in  her  bedroom  and  even  though she might not be knowing the accused earlier,  the faces of the accused mounting such an assault and  which caused fatal injuries to her husband can easily be  treated to have been imprinted in her mind and when  she could identify these accused in the Court even in  the absence of an identification parade, it could not be  said  that  her  deposition  was  unnatural  or  she  was  trying to falsely rope in the present accused by shielding  the  real  assaulters  of  her  husband.”    (Emphasis  supplied)

In our opinion these observations would be fully applicable to  

the situation in this case.

34. Undoubtedly,  no test  identification  parade was held  in  

this case. It is also not disputed that the wife and the other  

eye-witnesses PW 2 and 3 were asked to identify the accused  

for the first time in the court, some eight and a half years after  

the incident. We have noticed in detail the manner in which  

35

the  widow in this  case  witnessed  the  brutal  murder  of  her  

husband, right in front of her eyes in broad day light. In such  

circumstances, it would be difficult, if not impossible, for her  

to forget the faces of the assailants. They would be imprinted  

on her psyche for ever. She had come face to face with the  

assailants. The murder was committed in broad day light. She  

would  have  no  reason  whatsoever  to  falsely  implicate  the  

appellants.  In  court,  she  had  categorically  deposed  and  

identified  each  of  the  assailants.  She  has  been  absolutely  

truthful and straight forward. It has come in evidence that the  

accused (A1) lives very near to the house of the deceased.  In  

such circumstances she could easily have said that she had  

known A1 earlier.  There are no embellishments seen in her  

evidence throughout. The High Court, in our opinion, rightly  

rejected  the  submission  that  non  holding  of  the  test  

identification parade has caused any prejudice to the accused.  

The evidence of PW1 is fully supported/corroborated by the  

evidence  of  PW2 and  PW3  on  the  point  of  second  assault.  

Further  more  they  have identified  all  the  accused in  court.  

36

Their identification is further strengthened by the fact that all  

the  accused  were  known  to  the  two  witnesses  earlier.  

Therefore, they were identified by name in court.  

35. Upon  a  due  consideration  of  the  entire  facts  and  

circumstances of this case, we are of the considered opinion  

that  the  judgment  of  the  High  Court  does  not  call  for  any  

interference. The appeals are dismissed.           

…………………………...J. [B.Sudershan Reddy]

New Delhi; …………………………….J. September 1, 2010. [Surinder Singh Nijjar]   

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