Simon & Others V. State of Kerala(1996): Kerala HC on section 159 of Indian Evidence Act.

Simon & Others V. State of Kerala, 1996 SCC OnLine Ker 56 

Before High court of Kerala

Bench: K.G. Balakrishnan and S. Krishnan Unni, JJ.)

Author of the judgement: Balakrishnan, J

Counsel for the appellants: Shir. M.N. Sukumaran Nair

Counsel for respondents: The then Public Prosecutor.

Cases referred:

  1. State of Kerala v. Mathachan (1969 KLT 566)
  2. Pookunju v. State of Kerala (1993 (1) KLT 876)

Brief facts and procedural history-

According to the prosecution, there was property dispute between the deceased Lonappan and the father of the appellants. On the date of the incident, deceased Lonappan woke up at about 6 a.m. and was proceeding to the latrine situated in a corner of the property to answer the call of nature. These appellants armed with a stick, axe handle and spade handle confronted him and beat on various parts of his body.

He made an outcry and PW2, his daughter, who was then only seven years old, came to the father’s side. The child was asked to inform the matter to others. PW2 went to her paternal uncle and informed him of the incident. PW1 also came there and injured Lonappan was then moved to District Hospital, Trissur where he succumbed to death at about 9.15 a.m.

The circle inspector after the investigation did not file a final report in time. He took about 11 years to file a final report and ultimately the case was committed to the Court of Session in 1991 and numbered as Sessions Case No. 34 of 1992 on the file of Addl. Sessions Court, Thrissur.

10 witnesses were examined on the side of the prosecution. Sessions Court relied on the evidence of PW2, the sole eye-witness and held that the accused committed the offense punishable under Sec. 302 read with Sec. 34 I.P.C. The conviction is challenged by the appellants on various grounds.


  1. Whether in the case of lack of evidence the conviction under section 302 is maintainable?
  2. Whether the evidence which was given by the daughter acceptable?

Arguments of the appellants:

  1. There is no evidence in the case to prove the cause of the death of the deceased and as there is no evidence to prove that the deceased Lonappan died of the injuries sustained by him on a fateful day, and therefore the conviction under section 302 of IPC is not maintainable.
  2. The manner in which the evidence of PW2 was recorded was quiet improper and there was an unfair trial so far as the accused was concerned and therefore the evidence of PW2 should not have been accepted as a foundation of the conviction of the accused.
  3. The facts of the case display certain unusual features. The matter was in the cold storage for a considerable number of years and, after a period of 11 years, the investigating officer filed a report without post-mortem certificate and wound certificate and the trial was conducted without these relevant documents.
  4. The learned Sessions Judge committed a serious procedural irregularity in not examining the witness(daughter) straightaway when she appeared as a witness. The counsel contended that P.W. 2 must have been tutored by the Prosecutor and the statement under Section 161 Cr. P.C. recorded from her was read over to her before she entered the witness box.

Arguments of the public prosecutor:

  1. The post-mortem certificate was not an essential document and even without there being evidence regarding the cause of the death a verdict of the guilt under section 302 IPC would be sustainable.
  2. There is an evidence to show that the deceased was beaten by the appellants. The reliance has been placed upon the evidence of the daughter.

Ratio of the court:

The definition of ‘murder’ given under Sec. 300 of the I.P.C. clearly stipulated that the bodily injury inflicted should be proved to be sufficient in the ordinary course of nature to cause death. Here, it is not known due to what cause deceased Lonappan died. It might have been due to the serious injuries sustained by him or it might have been caused due to some other reason. The accused could be found guilty only if it is proved that they had caused injuries to Lonappan and he died as a result of such injuries. So long as the reason for death is mysterious and unknown the accused under these circumstances cannot be found guilty of murder.

There may be cases where the circumstances by itself would prove the cause of death and there need not be any express evidence for that. If the assailants caused extensive injuries and the head itself was chopped off and the body of the victim was found in a truncated form there need not be any investigation regarding the cause of death as it is plain and evident from the circumstances of the case. So also in a case where the accused caused the death of a person and disposed off the body and the corpus delicti itself is not available for finding out the cause of death, the accused cannot escape from the clutches of law on the ground that there was no evidence regarding the cause of death of the victim. But, in a case of this nature, where the injured sustained multiple injuries and died while undergoing treatment in the hospital, the question regarding cause of death looms large and the prosecution should establish that the deceased died as a result of the injuries caused by the assailants and those injuries were sufficient in the ordinary course of nature to cause death.

The description of the injuries in the inquest report shows only external nature of the injury. The nature and internal consequence of these injuries have not been mentioned in the inquest report. Moreover, it is difficult to find out the cause of death based on the description found in the inquest report. Therefore the conviction of the appellants under Section 302 IPC is not sustainable.

P.W. 2 (daughter) was a seven-year-old girl at the time of occurrence. When she was examined in court she was aged 18. The learned Sessions Judge went on to observe that refreshing of memory by the prosecuting agency cannot be taken as a serious error and that cannot be treated as a sufficient ground to reject the evidence of a witness.

A witness could be permitted to refresh his memory only under Sec. 159 of the Indian Evidence Act. That also could be allowed only under restricted circumstances. S. 159 of the Evidence Act says that a witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned. The witness may also refer to any such writing made by any other person, and read by the witness within the time of the transaction or soon afterward concerning the matter he is questioned. It is also necessary that the court must consider that it is likely that the transaction was at that time fresh in the memory of the witness. So, the memory could be refreshed with reference to some contemporaneous document prepared by the witness by himself or made by any other person which the witness had occasion to read. Generally, this right is being exercised by expert witnesses such as a doctor who give evidence touching the postmortem certificate or wound certificate prepared by him. A Commissioner deputed by the court can also refresh his memory at the time of giving evidence by referring to the report contemporaneously prepared by him. But this special privilege given to the witnesses under S. 159 of the Evidence Act cannot be made use of by a witness in a criminal case to refresh his memory by referring to his earlier statement given to the police under S. 161 Cr. P.C. This is because Sec. 162 of the Code of Criminal Procedure specifically states that the statement recorded by the police officer under S. 161 could only be used for certain specific purposes.

There are series of decisions to the effect that a statement recorded under Sec. 161 Cr. P.C. is not admissible in evidence. Such statement could only be used to contradict the maker of the statement as envisaged under Sec. 145 of the Evidence Act. If such a statement is put to any other use it should be deemed to have been prohibited under Sec. 162 Cr. P.C. So, the learned Sessions Judge was not justified in stating that a witness is competent to refresh his memory with the prior statement recorded under Section 161 Cr. P.C. As the statement made under S. 161 Cr. P.C. is expressly made inadmissible, a witness cannot be allowed to refresh his memory by reading the statement and give evidence accordingly. That would amount to admitting by the back door evidence which cannot be welcomed at the front and it would definitely fly in the face of the legislative mandate given under S. 162 of the Cr. P.C.

The evidence of P.W. 2 is tainted with some illegality. Even according to the Sessions Judge, the witness might have the opportunity to refresh her memory in view of her previous statement recorded under Section 161 Cr. P.C. The question that arises for consideration is whether for that reason her evidence is to be thrown overboard completely. Even if it is found that the evidence is tainted with some extraneous influence or tutoring, we do not think that such an evidence could be rejected in toto. The court should scrutinize that evidence with great caution. P.W. 2 narrated in detail the various overt acts committed by each accused, which the court did not think that she was able to memorize at that distance of time. However, we do not think that the entire incident might have faded from her memory. P.W. 2 stated that she had seen the assailants and she immediately reached the spot and attempted to give water to her father. The father was unable to take water and she brought a small spoon from her house and gave water to him and he told that her mother and other relatives should be informed of the incident It is quite possible that she had seen the assailants and identified them, especially when they are her near relatives. The involvement of the accused in the attack of the deceased is satisfactorily proved by the evidence of this witness.

On the evidence of PW2, it is clear that the accused caused extensive injuries on deceased Lonappan. In the inquest report, it was noted that injury No. 1 to 7 was of grievous nature. The cumulative effect of these injuries would have caused the victim to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. So, in any view of the matter, the injuries were of grievous in nature and the accused have committed the offense punishable under Section 326 I.P.C.


The conviction under Section 302 I.P.C. was set aside and the sentence of life imprisonment imposed on the accused was quashed. In the alternative, the court convicted them under Section 326 I.P.C. and hold that the sentence already undergone by them will be sufficient and they shall be released forthwith, if not required in any other case.


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