Judgment :- The Judgment of the Court was delivered by Koshy, J.— Three accused were charge-sheeted under Sections 302 and 307 read with Section 34 I.P.C. Accused Nos.2 and 3 were acquitted. Accused No.1 was found guilty under Sections 302 and 307 read with Section 34 I.P.C. Accused No.2 is the mother of Accused No.1. Accused No.3 is the sister of Accused No.1. According to the prosecution, a boy of 17 years old and his mother were brutally murdered and the father of the boy was severely injured in the incident. The allegation of the prosecution was that on 17-10-1996 at 3-45 p.m. in furtherance of the common, intention to commit murder of P.W.2 and his family members on account of the enmity regarding the dispute of a pathway, accused 2 and 3 pelted stone towards Shinoj, son of P.W.2 and when Shinoj and Chinnamma, wife of P.W.2, came to the pathway of the property of Shri M.T. Thomas, the first accused stabbed Shinoj and Chinnamma and Stephan with a knife causing grievous injury and the said Chinnarnma and Shinoj succumbed to the injuries on the way to the hospital and P.W.2 sustained grievous injury and undergone treatment in the Medical College Hospital, Kozhikode and thereby the accused committed murder of Chinnamma and Shinoj and attempted to murder P.W2. The identity of the accused as well as the injured are not disputed. 2. Ext.P-12 is the Postmortem Certificate of Shinoj and Ext.P-13 is the Post-mortem Certificate of Chinnamma. The antemortem injuries of Chinnamma as noticed in Ext.P-13 Post-mortem Certificate are as follows: "Incised stab wound curved with convexity upwards and outwards on the right side of chest. The upper limb was 4 x 0.3 cm. with square end at the upper part which was situated 5 cm. Outer to midline in the 5th inter costal space. The wound continued downwards and inwards 2 x 0.3 wich sharp end at the lower end. In continuation with the upper and there was triangular shaped abrasion 1 x 0.4 to 1 cm. broadest at the end of incised wound. Underneath the upper limb of the stab wound, the 6th rib and the 5th intercostal space was cut showing a wound 5.5 x 0.4 cm. The wound extended downwards, backwards and to the left piercing the inner aspect of the lower part of right lung (3 x 0.4 cm.) 1.5 cm. broadest at the end of incised wound. Underneath the upper limb of the stab wound, the 6th rib and the 5th intercostal space was cut showing a wound 5.5 x 0.4 cm. The wound extended downwards, backwards and to the left piercing the inner aspect of the lower part of right lung (3 x 0.4 cm.) 1.5 cm. above its margins and then coming out, on the back aspect of lower lobe, 6 vcm below the inter lobular fissure and piercing the pleural surface 1.2 x 0.5 cm. on the 8th rib, 5cm. outer to its vertebral attachment. The total depth was 10CM." The Doctor's opinion is that the deceased died due to the stab injury on the right side of the chest. Ext.P-12 Post-mortem Certificate regarding Shinoj shows the following antemortem injuries: "1. Incise wound 4.2 x 0.4 cm. on the left side of chest oblique, inner upper end was square cut and was 8 cm. outer to midline, on the 9th inter costal space. It was directed downwards, and to the front for a depth of 4 cm. It pierced the 9th inter costal space and terminated just below the pleural surface.Incised wound 4.2 x 0.4 cm. on the front of abdomen, horizontal 1.5 cm. below umbilicus the left end was square cut and right end was pointed and was in line with the right margin of the umbilicus. It was directed downwards, backwards and to the right piercing the intestinal mesentry 240 cm. proximal to the ileocaecal junction, cutting the intestine through 287 cm. proximal to ileocaecal junction (3.6 x 0.2 cm.) near the mesentric border reached the posterior wall of pelvis right side cutting the anterior portion of right iliac artery 2 cm. distal to its origin. The posterior wall of pelvis right side was infiltrated with blood. Three metre long loup of intestine was protruding out through the incised wound on the abdomen. The intestine was contaminated with mud particle and piece of dried leaves." The opinion as to the cause of death by the Doctor was the death was due to stab injury to abdomen. Ext.P-11 is the Wound Certificate issued with respect to the injuries caused to P.W.2. The details of the injuries in the Wound Certificate noticed are as follows: "Details of injuries/clinical features.- O/E Patient conscious. Puls 100/mts. Ext.P-11 is the Wound Certificate issued with respect to the injuries caused to P.W.2. The details of the injuries in the Wound Certificate noticed are as follows: "Details of injuries/clinical features.- O/E Patient conscious. Puls 100/mts. B.P. 100-General condition not satisfactory (penetrating injury left side of chest) (1) Incised wound 8 x 3 cm. 4 cm. lateral to the left nipple. Portion of the lung protrudes through the wound. (2) Oblique wound (incise) from right side of chest extending over the epyastum 8 x 3cm.(3) Wound of 7 x 3 cm. extending in the same direction 20 in. distal to the previous one." The cause of injury recorded in Ext.P-11 Wound Certificate is that four persons including one Manoj and Puthenpura Johny stabbed by knife. 3. No doubt, the injuries inflicted on the two deceased as well as P.W.2 are very serious and two persons, a 17 years old boy and his mother were murdered in a very brutal and cruel manner and his father was also very seriously injured. The question is whether the accused are guilty of the offence. Apart from P.W.2, the prosecution examined P.W.1 who is stated to be an eye witness and P.Ws.4 and 8 for proving the offence. P.W.2 is an injured witness himself. P.W.1 gave the F.I. Statement. P.Ws.4 and 8 saw the accused 2 and 3 as well as the deceased and the injured walking through the pathway in front of their house calling abusive and offensive words half an hour before the incident. Thereafter, they went there seeing the cry from the spot of occurrence. Through them the motive also was proved. P.W.4 took the injured to the hospital. Others are mainly official witnesses. M.O.1 knife was also recovered on the basis of the confession made by the accused, who attested the seizure mahazar was examined the prove the same. P.W.16 conducted the investigation. 4. The defence examined D.W.1 mainly to show that in the incident A-1 was injured. In the 313 Statement the accused No.1, mainly harped self-defence. Others are mainly official witnesses. M.O.1 knife was also recovered on the basis of the confession made by the accused, who attested the seizure mahazar was examined the prove the same. P.W.16 conducted the investigation. 4. The defence examined D.W.1 mainly to show that in the incident A-1 was injured. In the 313 Statement the accused No.1, mainly harped self-defence. He filed a Written Statement under Section 232 (2) Cr.P.C. stating that: "the prosecution witnesses had enmity towards the family of the accused and there are several civil and criminal cases pending regarding the pathway and on the date of incident, the prosecution witnesses including the deceased assaulted 1st accused on the reason that the police directed them to appear in the station on the complaint filed by the father of the 1st accused that in the scuffle the pocket of the shirt of 1st accused was torn and the witnesses hit with stones on the forehead and other parts of the body of the 1st accused and threatened to kill and in order to escape from their attack, 1st accused waved the knife and escaped to the house. On seeing the injury on the 1st accused his mother and sister taken him to the hospital and before the examination by the doctor, police came to the hospital and taken them into custody and only on the next day 1st accused was taken to the hospital. It is also stated that 1st accused has not shown the knife to the police and that M.O.1 knife is not the knife possessed by the 1st accused that P.W.2 and deceased Chinnamma and Shinoj sustained injuries in the incident in which 1st accused was attacked that P.W.1 has got enmity towards the accused that he is made an accused in a case filed by them and that the prosecution case is false." Before imposition of punishment, he stated that he had no intention to kill and only a lesser punishment may be imposed. The main argument advanced by the defence counsel before the Sessions Court was as follows: "21. The main argument advanced by the defence counsel before the Sessions Court was as follows: "21. The main argument advanced by the learned defence counsel is that P.W.2 and party attacked the accused 2 and 3 who are the mother and sister of 1st accused and seeing it 1st accused reached the spot and for their self defence he waved his knife and in that action P.W.2 and deceased Shinoj and Chinnamma sustained injury. The injury found on the 1st accused and tearing of the pocket of his shirt also pointed out to substantiate the above defence case. It is also argued that the injury found on the 1st accused has not explained by the prosecution. But the learned Public Prosecutor has argued that there was only superficial injuries on the 1st accused and that might have been occurred while he stabbed three persons and it will not be sufficient to prove that reasonable apprehension of danger to the life of the accused persons. True it is the duty of the prosecution to explain the injury found on the accused and also to place all the material before the Court. P.W.16 the investigation officer has given evidence that he arrested the 1st accused at 3 p.m. on that day and effected the recovery of M.O.1 on the basis of information received from him. He has also arrested the accused Nos.2 and 3 at 5 p.m. He sent the 1st accused for medical examination. But prosecution has not produced any records of the examination of the 1st accused. But the above laches on the side of the prosecution is not much serious in the light of the defence evidence adduced. D.W.1 examined on the side of the defence has given evidence that he had accompanied accused 1 to 3 to the hospital and at that time the 1st accused had abrasions on his forehead and hand and there was bleeding. The exact statement of D.W.1 is that So in the light of the above evidence the injury on the accused was not so serious and not on any vital part. The exact statement of D.W.1 is that So in the light of the above evidence the injury on the accused was not so serious and not on any vital part. Though D.W.1 has stated that he was told by the accused that they were attacked by Stephan, Shinoj and Chinnamma with stone and sticks there was no suggestion by the learned defence counsel while cross-examining P.Ws.1 and 2 that the injured and the deceased persons were armed with any weapons at the time of incident. There is also no case that accused 2 and 3 sustained any injury. P.W.1, the eye witness stated that the 1st accused stabbed the deceased 1 and 2 and P.W.2 as one by one with very same weapon. The holding of knife by 1st accused is not disputed by the defence by taking a defence that 1st accused waved his knife for self defence. So in the above circumstances the suggestion put forward by the defence that the 1st accused on his self defence and also to protect the danger to the life of his mother and sister inflicted stab injury on deceased 1 and 2 and P.W.2 cannot be believed for a moment." 5. The arguments raised before this Court on behalf of the appellant are that (1) The F.I.R. reached the Court only on the next day and therefore there is likelihood of manipulation. (2) There are contradictions in the F.I. Statement of P.W.1 and his deposition before the Court and P.W.1 is not a reliable witness and his presence itself is doubtful. He must have come only after the incident. (3) The injury on the accused was not properly explained. Therefore, the prosecution has not narrated the incident correctly and the benefit of the same should go to the accused. (4) The recovery of M.O.1 was not proved especially because the confession statement was not signed by the accused and P.W.6, the attesting witness to the scene mahazar was living five kilometres away and is an unnatural witness. (5) M.O.1 was not shown to the Doctor and therefore it is not proved that M.O.1 is the cause of the injuries. (6) Motive was not proved and if at all there is any enmity between the accused and P.Ws.4 and 8 and not with the deceased and according to him, the case was concocted against the accused. 6. (5) M.O.1 was not shown to the Doctor and therefore it is not proved that M.O.1 is the cause of the injuries. (6) Motive was not proved and if at all there is any enmity between the accused and P.Ws.4 and 8 and not with the deceased and according to him, the case was concocted against the accused. 6. Now we will consider briefly the evidence and discuss these points. The F.I. Statement was given by P.W.1 on the same day at 3-20 p.m. and the incident happened at 2-30 p.m. There is no delay in recording the F.I. Statement. P.W.18 recorded the F.I. Statement. The evidence of P.W.1 as well as P.W.18 shows that the F.I. Statement was recorded immediately after the incident, but it reached the Court of the Judicial Magistrate only on the next day at 11.30 a.m. It is true that the F.I.R. should have been forwarded to the Magistrate at the earliest opportunity and it can be even sent to the residence of the Magistrate, if there is no sitting. The Investigating Officer also deposed before the court that he is unable to explain why it reached the court only on the next day. But, we note that the F.I. Statement was recorded immediately after the incident. So, there cannot be any manipulation thereof merely because it reached the court only on the next day, especially the Police Officers were with P.W.2. who was in a serious condition. It cannot be stated that merely the F.I. Statement was sent to the court on the next day, the entire prosecution case can be thrown off. In Barlam Singh and another v. State of Punjab 2003 11 S.C.C 286, it was held that delay in registering a complaint by itself is not fatal if the ocular evidence adduced by the prosecution is worthy of acceptance. In this case, there are, eye-witnesses including the injured eye-witness to the incident. It has been repeatedly held by the Supreme Court that mere lapses of investigation will not vitiate the charges, if the prosecution is able to prove the case on the basis of the evidence adduced in a case. In this case, there are, eye-witnesses including the injured eye-witness to the incident. It has been repeatedly held by the Supreme Court that mere lapses of investigation will not vitiate the charges, if the prosecution is able to prove the case on the basis of the evidence adduced in a case. There is no material in this case to show that any effort was made by the investigating agency to concoct a version or any prejudice has been caused to the accused merely because the F.I.R. reached the court only on the next day. 7. With regard to the evidence of P.W.1, he deposed that on 17-10-1996, while he was going to the property for work at 2 p.m., he found accused 2 and 3 walking through the property of Chinnamma Chacko, (father of A-1). He also saw P.W.2 Stephen and his wife Chinnamma and their son Shinoj following A-2 and A-3 and they were abusing each other. When Chinnamma, Stephen and Shinoj entered the property, the second accused threw a stone to Shinoj, and at that time Shinoj came to the pathway and the first accused who reached there from the northern side stabbed Shinoj. Then Shinoj informed his father Stephen and when Stephen rushed to the spot, the first accused stabbed Stephen also. Seeing that Chinnamma also rushed to the spot and she was also stabbed by the first accused. Chinnamma and Stephen cried loudly and P.W.1 also made noise and then Jose and Johny reached there. Shinoj and Chinnamma were taken to the house of Jose by P.W.1 and Jose. P.W.2 walked to that house. Then they were taken to the Mananthavady Hospital in a jeep. On examination by the Doctor, Chinnamma and Shinoj were declared dead. Stephen was referred to the Medical College Hospital, Kozhikode. P.W.1 then went to the jurisdictional Police Station at Vellamunda and gave the first information statement to the Police. He identified his signature in Ext.P-1. He also identified M.O.1 knife used by the first accused for stabbing. On going through the F.I. Statement which was given immediately after the incident and the deposition made by P.W.1 after seven years of the incident (1-1-2003) it can be seen that there are no material contradictions. He identified his signature in Ext.P-1. He also identified M.O.1 knife used by the first accused for stabbing. On going through the F.I. Statement which was given immediately after the incident and the deposition made by P.W.1 after seven years of the incident (1-1-2003) it can be seen that there are no material contradictions. Some contradictions pointed out by the learned counsel for the accused are only the natural differences which may occur as P.W.1 deposed before the court, after seven years delay. The alleged omissions highlighted in the 161 Statement with the F.I. Statement are also not of fatal. It is argued by the counsel for the accused that the accused is a chance witness and he was inimical towards the accused as the accused had filed a complaint against P.W. 8 and also P.W.1 who is a relative of the accused. Being a close relative and being a chance witness, his evidence cannot be believed. But, it has come out in evidence that P.W.1 is only distantly related to the deceased, but very closely related to the accused. Apart from the above, it is now settled law that merely because a person is relative, it cannot be stated that his evidence can be discarded, if it is found to be truthful and credible after scrutiny as held by the Apex Court in the decision in Anil Sharma and others v. State of Jharkhand (2004) 5 S.C.C 679. According to the counsel for the appellant, the residence of P.W.1 was about 300 metres; after the place of incident and therefore he could not have seen the incident. But, he has no case that he has seen the incident from his residence. According to him, he was coming after work and his place is only 300 metres away. Therefore, it cannot be stated that P.W.1 is a chance witness. The Apex Court in Rana Partap & others v. State of Haryana A.I.R. 1983 S.C 680 held that evidence of eye-witnesses cannot be discarded, calling the witnesses as chance witnesses, as murders are not committed with previous motive to witnesses soliciting their presence. If murder is committed in a street only a passerby will see the incident. In this case, P.W.1 is also a natural witness. 8. Apart from the evidence of P.W.1, the evidence of P.W.2 cannot be disbelieved at all. He is an injured witness. If murder is committed in a street only a passerby will see the incident. In this case, P.W.1 is also a natural witness. 8. Apart from the evidence of P.W.1, the evidence of P.W.2 cannot be disbelieved at all. He is an injured witness. He will never lie giving a chance to the real accused to escape. His wife and 17 years old son died in the incident. He also suffered very serious injuries and he survived by luck. He will not accuse a person other than guilty, giving a chance to the real accused to escape, as held by the Apex Court in the decisions in Mer Dhana Sida v. State of Gujarat A.I.R. 1985 S.C. 386 and Jangir Singh v. State of Punjab 2000 (10) S.C.C. 261. There is no material to disbelieve P.W.2 on any count. It is true that in the Wound Certificate he implicated another person also as he said that there were four persons including accused No.1. Accused Nos.2 and 3 were acquitted by the Sessions Judge as no overt act was proved against them. In any event, the State has not filed any appeal against them. The name of the first accused was mentioned even at the time when the Wound Certificate was given. He explained during examination that he is not remembering whether he had stated that four persons were involved in the incident. Merely because the name of Jose was mentioned along with the name of the 1st accused, 1st accused cannot escape. It is not stated in Ext.P-11 Wound Certificate that who divulged the cause of injury to P.W.2. P.W.2 was admitted in a hospital in a very serious condition. A portion of his lungs was protruded through the wound. P.W.2 also proved the motive. P.Ws.4 and 8 deposed that they saw A-2 and A-3 as well as the deceased and P.W.2 who were going through the road at 2 p.m. and after some time they heard a cry and they rushed to the spot and saw Jose carrying Shinoj and P.W.1 was carrying Chinnamma. It is true that the father of A-1 had a pathway dispute between P.W.8 and on the date of the incident police came and the same pathway was used by the deceased also and disputes are long pending. It is true that the father of A-1 had a pathway dispute between P.W.8 and on the date of the incident police came and the same pathway was used by the deceased also and disputes are long pending. The defence taken by the accused itself would show that there was motive for difference of opinion between the accused on the one side and P.Ws.4, 8 and the deceased on the other side. So, there is clear motive. The evidence of P.Ws.1, 2, 4 and 8 prove the case given by the accused. 9. With regard to the injuries on the accused, D.W.1 did not state the details of the injuries. It is true that the prosecution ought to have produced the Wound Certificate. But, Ext.P-1(a) Body Note was there. That only shows a small injury on the face. But, that was not a serious injury. P.W.2 also stated that the accused was admitted on the same day in the hospital. The Investigating Officer has also stated that the accused had some small abrasions which was caused during the incident and therefore he was arrested only on the next day. When he was produced before the Magistrate Court, he had no case that he sustained any serious injury. It is the duty of the prosecution to explain the serious injuries suffered by the accused. But, the accused had only very minor injuries. When he stabbed three persons, there must be some resistence at least by P.W.2. Those injuries can even be self inflicted. Considering the direct and cogent evidence adduced by the prosecution witnesses, we cannot hold that the case against the accused can be disbelieved merely because the minor and superficial injuries were not explained by the prosecution. In this connection, we refer to the decision of the Apex Court in State of Madhya Pradesh v. Sardar (2001) 6 S.C.C. 433. In the decision in Rizan and Anr., v. State of Chattisgarh A.I.R. 2003 S.C.976 the Apex Court has held that mere non-explanation of injuries on the accused will not affect the prosecution case. 10. With regard to the recovery of M.O.1, Disclosure Statement, it is true that the Disclosure Statement was not signed by the accused. In the decision in Rizan and Anr., v. State of Chattisgarh A.I.R. 2003 S.C.976 the Apex Court has held that mere non-explanation of injuries on the accused will not affect the prosecution case. 10. With regard to the recovery of M.O.1, Disclosure Statement, it is true that the Disclosure Statement was not signed by the accused. Learned counsel relied on the decision of the Apex Court in Jaskarar Singh v. State of Punjab 1997 S.C.C. (Crl.) 651, where it was stated that when the Disclosure Statement is not signed, recovery on the basis of the same, cannot be relied upon. After going through the decision of the Apex Court, it could be seen that merely because the Disclosure Statement was not signed, the recovery was not believed. In that case, the prosecution was not able to prove that the crime weapon belonged to the appellant and there was even non-identification of the appellant and deposition of alleged eye-witnesses was totally approved to the version given in his F.I. Statement Considering the totality of the circumstances, the Court did not rely on the Section 27 recovery in that case. The Apex Court considered the above decision and took a different view in Golakonda Venkateswara Rao v. State of Andhra Pradesh A.I.R. 2003 S.C. 2846. In State of Rajasthan v. Teja Ram A.I.R. 1999 S.C. 1776, the Apex Court held that the Investigating Officer is not obliged to obtain the signature of an accused in any Statement attributed to him while preparing the seizure memo for the recovery of any article covered by Section 27, but merely because signature was not obtained, disclosure statement will not become invalid. Even otherwise in view of the direct evidence of P.W.2 who was an injured witness supported by P.Ws.1, 4 and 8, even without the recovery, the accused can be found guilty. 11. Here, recovery of M.O.1 knife is only a corroborative evidence. Considering the plea as self-defence raised by the accused at the time of 313 Statement and the question put forward to the Doctor on behalf of the accused, it cannot be stated that non-questioning of the Doctor after showing M.O.1 knife when he was examined will cause any infirmity in this case. In fact, the plea that accused suffered injuries in the same incident shows that he was present at the house of the deceased. 12. In fact, the plea that accused suffered injuries in the same incident shows that he was present at the house of the deceased. 12. It is true that the plea of self-defence, cannot be measured in a golden scale. A person apprehending his death or his relative's death, in a fear of their life, may do certain acts which may not be exactly required in the circumstances, but the accused has to prove that there was reasonable apprehension of attack against him or near ones. Even though it is enough for the accused to prove that he apprehended danger to his life or the near ones by preponderance of probabilities proving burden is on him to establish his defence plea. Here, according to the counsel for the accused, even if the prosecution case is proved, it can be seen that abusive words were used to the mother and that is why he came and attacked the deceased and P.W.2 in self defence. But, mere use of abusive words is not an enough defence for inflicting fatal injuries on three unarmed persons. There is no evidence in this case that the deceased or P.W.2 did an act which caused an apprehension of the death of mother or sister of the accused. 13. The argument that the accused was only aged 19 and the murder took place without any pre-determination, in a sudden Judgment entitled to the benefit of 4th exception to Section 300 I.P.C. also cannot be accounted as the above is applicable only when the offender has not taken undue advantage and not acted in a cruel or unusual manner. The occurrence was not out of a sudden fight and in any event brutally killing two persons including a 17 years old boy and his mother, both unarmed and inflicting very serious injuries to P.W.1, the father of the deceased boy, in a very cruel and unusual manner disentitled to claim the benefit of exception 4. Similar view was expressed by the Apex Court in Rajendra Singh & others v. State of Bihar A.I.R. 2000 SC 1779. There is also no evidence to prove that deceased did anything to provoke the appellant so as to justify murder of two unarmed ladies. Similar view was expressed by the Apex Court in Rajendra Singh & others v. State of Bihar A.I.R. 2000 SC 1779. There is also no evidence to prove that deceased did anything to provoke the appellant so as to justify murder of two unarmed ladies. After considering the Judgment of the learned Sessions Judge, we are of the view that the Sessions Judge has considered the matter in detail and came to the right conclusion with regard to the guilt of accused No.1. Therefore, we see no ground to interfere in the matter. The Appeal is dismissed.