Kerala High Court
Mtp Muhammed Faisal @ Faisal vs The Inspector Of Police on 1 July, 2021
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
CRL.A NO. 141 OF 2017
AGAINST THE ORDER/JUDGMENT IN SC No.245/2011 DT. 25.01.2017 OF
ADDITIONAL SESSIONS JUDGE I KASARAGOD
CP 28/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDRUG,
KASARGOD
APPELLANT:
MTP MUHAMMED FAISAL @ FAISAL
S/O. MUHAMMEDALI, CHOVVERI HOUSE, POOCHOL,VADAKKE
THRIKKARIPUR VILLAGE, KASARAGOD DISTRICT.
BY ADVS.
SRI.SUNNY MATHEW
SRI.C.K.SREEDHARAN
RESPONDENTS:
1 THE INSPECTOR OF POLICE
NEELESWAR, KASARAGOD DISTRICT.
2 STATE OF KERALA
RESPONDENTS 1 & 2 REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV GOVERNMENT PLEADER
OTHER PRESENT:
SENIOR GOVERNMENT PLEADER SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.141 of 2017 - 2 -
CR
K. Vinod Chandran & M.R. Anitha, JJ.
-------------------------------------
Crl.A.No.141 of 2017
-------------------------------------
Dated, this the 01st day of July, 2021
JUDGMENT
Vinod Chandran, J.
Pliable and prevaricating witnesses question the
credibility of the criminal judicial system and test the
skill of adjudicators and stretch their patience to breaking
point. An inept prosecution and an equally abject defense
does not serve the cause of justice delivery; which problems
are at times compounded by an indifferent Court. The trial of
a seemingly open and shut case, of a murder committed in the
open and in public view has been complicated by witnesses of
the aforementioned category. An enquiry into whether it is on
purpose or on threat or purchase, obviously is beyond our
ken. But all the same, we have to sift the grain from the
chaff and find out the truth as discernible from the evidence
on record.
2. The appellant-accused, according to the
prosecution, stabbed the deceased on account of the latter
having taken up cudgels against the illicit liquor sale
conducted by the former. The immediate provocation is also
alleged to be a shove delivered by the deceased to the
accused, on his approaching a fast food shop wherein the
accused was also present. The accused took the knife kept in
the fast food shop and stabbed his alleged enemy to death.
This was in the presence of other customers and the fast food
shop owner. The accused also injured PW1, who gave the First
Information Statement, in the scuffle that ensued. The victim
succumbed to his injuries and the appellant was booked as the
aggressor-accused.
3. In the trial, PW1 to PW14 were examined and
Exts.P1 to P20 were marked. Material objects MO1 to MO7 were
also produced and marked. The learned Sessions Judge on the
basis of the evidence led, which included the recovery of the
weapon and the dress worn by the accused as also the report
of the Forensic Science Laboratory (FSL), convicted the
accused and sentenced him to undergo rigorous imprisonment
for life, for the commission of offence punishable under
Section 302 of the Indian Penal Code, pay an amount of
Rs.3,00,000/- (Rupees Three lakh only) as fine with default
sentence of RI for 2 years. He was further sentenced to
undergo RI for a period of 3 years and to pay a fine of
Rs.10,000/-(Rupees Ten Thousand) with default sentence of RI
for 6 months for the offence punishable under Section 324 of
IPC. If the fine amount is remitted or recovered, it was to
be disbursed to the wife of the deceased Babu as compensation
U/s 357(1)(b) of Cr.PC. The sentences aforesaid were
directed to run concurrently.
4. Sri.Sunny Mathew, learned Counsel appeared for
the accused and Sri.S U Nazar, learned Senior Public
Prosecutor appeared for the State. On behalf of the accused
it was argued that there is absolutely no evidence to convict
him. PW1 & 2, who were arrayed as eye-witnesses turned turtle
in cross-examination and gave an entirely different version
of the incident. Though they were declared hostile and
cross-examined by the prosecution, it was not done in the
manner known to law. In fact the Court should have found that
both the said witnesses were unbelievable and eschewed their
testimonies from consideration. [2015 (9) SCC 588 Mishra v.
State of Utharakhand] was relied on to challenge the manner
in which the witnesses were examined after declaring them to
be hostile. The contradictions put to PW1 was from the FIS
and not from the Section 161 statement. The contradictions
were not marked either by the prosecution or by the Court nor
were these contradictions proved by putting those to the
Investigating Officer. There is hence no proof of the
statements recorded by the Police under Section 161. [AIR
1976 SC 294 Sat Paul v. Delhi Administration and 1976 AIR 202
Bhagwansingh v. The State of Hariyana] were relied on to
argue that the witnesses stood thoroughly discredited. The
finding of the trial Court that PWs 1 & 2 corroborate each
other cannot at all be countenanced when the evidence relied
on is of the same brand or suffered from the same infirmity,
as held by a Division Bench of this Court in [1985 KLT 198
Kunjappan v. State of Kerala].
5. It was also argued that the FIS is not the first
statement given by PW1. In cross-examination he had
specifically admitted to have been taken to the hospital,
after the incident, by the Police, from his house from where
he had given a statement to the Police. The said statement
has been suppressed and it leads to a presumption that the
story in the FIS is one concocted by the Police. As far as
the recovery is concerned, the learned Counsel assails it on
three counts. PW1 in cross-examination by the defense stated
that he had seen the knife on the very next day of the
incident. PW8, the Doctor, had also spoken of the Police
having shown him the knife, which could only be during the
postmortem examination, which occurred on 27.10.2010. The
recovery itself was after that on 01.11.2010. Further, in P3
seizure mahazar the recovery is not seen to have been carried
out from a place of concealment. The knife was recovered from
an open place from under a coconut tree; kept without
concealment ie: not buried nor even concealed among dry
leaves or such. Reliance is placed on [Shivnarayanan v. State
[NCT of Delhi] 93 2001 DLB 681] to bring home this point.
Recovery in any event has been declared to be a weak piece of
evidence by the Hon'ble Supreme Court in [2008 (1) Crimes 174
(SC) Moni v. State of Tamilnadu]. On the motive the
prosecution has two stories; one, of the appellant having
dealings in illicit liquor which was objected to by the
deceased and then, the shove delivered to the accused just
prior to the incident. As far as the dealings in illicit
liquor, there is absolutely no evidence led by the
prosecution but for the oral testimony. The shove, projected
as an immediate provocation, is not sufficient cause for
murder. There was no premeditation alleged even by the
prosecution and the motive falls to the ground. The learned
Counsel would argue that the evidence is not sufficient
enough to prove the case against the appellant beyond
reasonable doubt. The totality of the circumstances as can be
detected from the evidence only raises a suspicion which
falls short of a valid ground to convict for murder.
6. Sri S.U. Nazar arguing for the State vehemently
opposed the contentions raised in appeal. The learned
Prosecutor would argue that in fact there was no requirement
to declare the witnesses hostile since on material
particulars, there was no departure in cross-examination of
PW 1 & 2. The presence of the accused and the deceased as
also the witnesses are admitted. The death caused by injuries
suffered at the scene of occurrence also is admitted. What is
resiled from is the evidence regarding infliction of
injuries, which at the earlier point; both the eye-witnesses
spoke in tandem with the FIS and Section 161 statements. Even
if the testimony after declaration of the witnesses hostile
is eschewed for reason of the contradictions having been not
proved through the Investigating Officer; the Court has to
weigh the evidence led in chief examination and the departure
made in cross-examination. It is pointed out that the learned
Counsel for the accused before the Trial Court had submitted
no cross immediately after the chief examination. PW3 too was
then examined. Only after that PW1 & 2 were recalled for
cross-examination. The testimony from the delayed cross-
examination also indicates a clear tutored version. The
witnesses at that point speak of the dress worn by the
accused to challenge the recovery and also PW1 makes the
further statement that the knife was shown to PW1 immediately
on the next day. This was purposefully brought out to
discredit the recovery. Reliance is placed on [2012 KHC 312
(Vyasan v. State of Kerala)] and [2012 KHC 4317 (Ramesh
Harijan v. State of U.P.)] to contend that the material
particulars spoken of by even a hostile witness can be looked
into. [2011 KHC 4008 (Himanshu @ Chintu v. State of NCT of
Delhi)] and [1999 KHC 1451 (Kollilakhmandhai Chanabhai v.
State of Gujarat)] were also relied on along with [2014 KHC
4397 (Paulmari v. State of Tamilnadu)]. It is further pointed
out that the mention of the torch in the FIS, which stood
recovered from the crime scene adds veracity to the FIS and
the chief-examination as does the wound certificate of PW1
too.
7. The learned Prosecutor would on the same count
urge us to look at the documents, which offer corroboration
to the testimony in chief examination. PW1 is an injured
witness and there is a built in guarantee that he would be
deposing the truth, in this case at the first instance, when
he was examined in chief. Ext.P11 is the Wound Certificate,
which names the accused as the person who caused the injury.
This clearly indicates that PW1 resiled from his earlier
version on either promised gratification or threats levelled.
The motive as is trite is not an essential requirement, when
there are eye-witnesses. The prosecution also does not have a
case of premeditation, but the shove delivered brought forth
the earlier enmity, which resulted in the stabbing of the
deceased by the accused. There can be no argument raised of a
sudden provocation, since as rightly put forth by the learned
Counsel, a mere shove is insufficient to evoke designs of
murder. What goes on in the inner recesses of the human mind
will not be available to the prosecution and the innocuous
shove could have regurgitated prior animosities. The repeated
stabbing, that too without any sufficient provocation,
reveals healed wounds having been reopened. The learned
Prosecutor would point out that, accepting the contention of
the accused that there was no sudden provocation, would only
dis-entitle the accused from claiming any benefit of the
Exception under Section 300. The learned Prosecutor would
seek the conviction to be affirmed.
8. Before we go to the appreciation of evidence, we
would first briefly refer to the evidence led in trial. PW1
gave the FIS, Ext.P1. As per the FIS, which was given at
11.45 p.m on 27.10.2010 the incident happened around 8.30
p.m. PW1 was waiting for an omelet, for which he placed an
order at the fast-food joint owned by PW2, wherein the
accused was also present. The deceased, who was running a
miscellaneous shop nearby came to the joint and he too
ordered an omelet. On his entry, he shoved the accused, who
was standing nearby, with his shoulder, when the accused
grabbed a knife at the shop and stabbed the deceased two or
three times. PW1 intervened, at which point the accused
stepped down to the court-yard and from there, when a stab
was aimed at the deceased, it mistakenly graced PW1s left
knee. PW1 too then stepped down to the road and saw the
accused again repeatedly stabbing the deceased. The deceased
cried for help of PW1 and collapsed on the veranda,
wherein the fast-food joint was functioning. PW1, after the
incident, ran to the nearby house, bandaged his leg and
returned home. Later he proceeded to the Life Care Hospital
for treatment of his injury. While he was at the hospital,
the deceased was brought there, dead and then taken to the
Medical College Hospital mortuary. He spoke of having
knowledge of an earlier animosity between the accused and the
deceased.
9. PWs 1 & 2, the first informant and the owner of
the fast-food joint, in chief examination supported the
prosecution to the hilt. PW1 and PW2 were examined in chief
on 14.07.2014 but then subjected to cross-examination on
23.08.14. On conclusion of chief examination of PWs 1&2 it
has been recorded as 'no cross'. Learned Counsel for the
accused took us through the proceedings sheet to urge that in
all possibility there would have been some inconvenience on
the part of the defence and though the witnesses were cross-
examined after 1½ months, summons was issued, recalling them
just after a week as seen from the proceedings sheet. There
is also no application for recall of witnesses referred to.
We will deal with the said question a little later.
10. In cross-examination both PW1 & PW2 gave a
different story. Though the presence of all involved were
admitted, it was stated that on the crucial day and time
there was a commotion in front of the nearby toddy shop and
the deceased was seen quarreling with a group of people
assembled in front of the toddy shop. The deceased then came
to the fast-food joint followed by 8 to 10 people. The
deceased stepped on to the veranda and asked for an omelet,
which PW2 immediately offered. However the deceased abused
PW2 and refused to take the omelet, upon which the persons
gathered there questioned the deceased. This resulted in a
scuffle and later the deceased was seen running into the
veranda of the fast-food joint saying that he was stabbed.
PW1 also stated that, in the scuffle he too suffered
injuries. The essential departure from the earlier deposition
was that PW1 said he had not seen the accused stabbing the
deceased. He also deposed that after he reached home the
Police came and recorded his FIS and took him to the
hospital. He denied having given any statement at the Police
Station on the night of the incident. The cross-examination
of PW2 also proceeded on the same lines.
11. Both the witnesses were allowed to be questioned
by the prosecution, as in cross-examination. Here we find
serious infirmity; for which both the prosecution and also
the Court was responsible. The contradictions confronted to
PW1 were from Ext.P1, FIS, which cannot be faulted. As far as
PW2 is concerned, there is no recital as to the source from
which the contradictions were put to the witness and there
was no marking of the various contradictions. The source
obviously was the 161 statement which Court cannot look into.
In the context of the contradictions having not been
extracted in its entirety or marked, we are disabled from
knowing the exact nature of such contradictions, since we
will have to read the entire statement to find out the
portions recorded in the deposition; with dots in between the
the first and last words. As submitted by the learned Counsel
for the accused, the contradictions elicited from PW1 & PW2
were also not put to the Investigating Officer, who was
examined as PW13, who took the Section 161 statement.
12. Reverting back to the evidence, PW3 is the
mahazar witness of Ext.P2 scene mahazar, wherein he identifies
inter alia MO3 torch taken from the scene of occurrence. PW4
witnessed the S.27 recovery (Ext.P3 seizure mahazar) of a blue
jeans and a slate coloured shirt worn by the accused and marked
them as MO6 & MO7. PW5 is witness to the inquest report, Ext.P5
and PW6, is a relative of the deceased who identified MO5
saffron colour dhothi and coffee coloured shirt of the deceased
again marked as MO7. Here we have to notice that there is a
confusion about MO7 which different witnesses identified as
that belonging to the deceased and the accused. The trial court
has not relied on the recovery of MO7 as that of the accused.
MO1 is the knife, the weapon used to stab. PW7 also identified
MO5 and MO7 as the dress worn by the deceased and was a witness
to Ext.P6. PW13, Investigating Officer identified both shirts
but thus were both described as MO7, in the deposition.
13. PW8 is the Doctor who conducted the postmortem on
28.10.2010. There were altogether 20 wounds of which injuries
No.1, 4 to 18 were either incised or cut injuries. The other
four were aberrations. The expert opinion was that the deceased
died out of penetrating injuries to chest involving lung and
aorta. Injury Nos. 9 to 12 and 16 were independently
sufficient to cause death in the ordinary course of nature
and the aberrations according to the Doctor would have been
caused when the person fell. The fatal injuries were opined
to be caused by a sharp edged weapon, similar to MO1. The
medical evidence established that the death was a homicide
with fatal stabs on the body by a sharp edged weapon.
14. PW9 is an official of the local body who marked
the ownership certificate of the shop at the scene of
occurrence and PW10 Village Officer who prepared the eye
sketch of the site produced as Ext.P9. Ext. P9 clearly
indicates that the mobile fast food joint was on the veranda
of the building and Ext.P2 Scene Mahazar speaks of the
veranda having two steps to get down to the road. This
establishes that the veranda is at a higher level from the
road. PW11 is the Sub Inspector who recorded FIS and
registered FIR; Ext.P1 and Ext.P10. Though he admitted that
he had gone to PW1's house at 9.30 p.m; he denied the
suggestion that he had recorded a statement at the house of
PW1. PW12 is the Medical Officer of Life Care Hospital who
marked Ext.P11 wound certificate of PW1. PW13 is the
Investigating Officer and PW14 the Inspector of Police who
marked Ext.P20 Chemical Examination report and filed a charge
sheet before Court.
15. [In 2015(9) SCC 588 (V.K. Mishra v. State of
Uttarakhand)], the Hon'ble Supreme Court, as argued by the
learned Counsel for the accused, explained the procedure for
contradicting witnesses with his previous statement reduced
into writing, under S.145 of the Evidence Act. The portion of
the statement recorded under S.161 has to be shown to the
witnesses and this should reflect in his cross-examination by
way of reproduction in the deposition. If the witness admits
that portion, it stands proved and if it is denied the
reproduced portion in the deposition has to be proved by
putting it to the I.O who would confirm such a statement
having been made to the Police. In the present case, we see
that PW1 was confronted with his statements in the FIS and
there is nothing indicated in the deposition of PW2 as to the
source of the statements confronted to the witness. We also
notice that the learned Sessions Judge has not marked any of
these portions. Marking of such portions may not be
compulsory when such portions are reproduced in its entirety.
For convenience, often the first and last words of the
particular statement/s are reproduced with dots in between
and that portion marked in the S.161 statement. Here not only
was the marking omitted but the statements were not
reproduced in its entirety. I.O was also not confronted with
any of these statements.
16. As for the manner in which contradictions are to
be marked and proved we refer to two decisions of this Court
which alerted the trial judges more than three decades back.
1988(1) KLT 256 George vs. State held so:
"7. The learned Special Judge seems to be unaware as
to how statements under S.161(3) Crl. PC. will have to be
used for contradiction. The exact portions sought to be
contradicted must be put to the witness and recorded in
the deposition and it will have to be marked subject to
proof by the investigating officer. Then it must be put to
the investigating officer and proved. The Special Judge
has not at all recorded the C D. statement and there is
nothing to show which portion of the statements were
confronted".
17. His Lordship, S. Padmanabhan, J. sitting in a
Division Bench reiterated so in [1989(1) KLT 956 (Imbayi vs.
State)]:
"6. If we go by the evidence of PWs.2, 4 and 10, there
was only one incident which is the first one admitted by
the prosecution. It is true that they are hostile witnesses
interested in the appellant. But they were not confronted,
contradicted or discredited with the statements given by
them under S.161 of the Code of Criminal Procedure. The
prosecutor seems to have resorted to an unusual and
irregular method, in violation of S.162, to get the entire
case diary statements of these witnesses marked en bloc as
Exts.P2, 3 and 7 without any objection from the court or
the defence counsel. The case diary statements in full were
not incorporated in the depositions. Instead, the beginning
and end were put in inverted comas with dotted lines in
between. Case diary statements contain contradicted and
uncontradicted portions. The portions sought to be
contradicted were not put to the witnesses. They were not
duly proved by putting to the investigating officer also.
Instead, he was made to swear generally that they said "as
stated in Exts.P 2, 3 and 7". Neither S.162 of the Code of
Criminal Procedure nor S.145 of the Evidence Act was
complied with in form. But it cannot be said that there was
no compliance in substance or that prejudice resulted. This
court had occasion to remind judicial officers of the
irregularity of resorting to such method of whole-sale
marking of case diary statements. What is required to be
done is when a witness is called for the prosecution in the
inquiry or trial consequent on the investigation during
which his statement is recorded under S.161 and when
occasion arises, any part of his statement necessary should
be put to him for contradiction as provided in S.145 of the
Evidence Act and duly proved through the investigating
officer who recorded the same. The witness must get an
opportunity of admitting or denying that statement or to
give his own explanation which will have to be considered
by court. If denied the statement will have to be duly
proved also. Then only it becomes admissible though the
admissibility is only to be used for
contradicting,discrediting or considering the veracity of
that witness and not otherwise to be used as substantive
evidence. A contradicted and denied statement, even if duly
proved, cannot be used as substantive evidence against the
accused.
[underlining by us for emphasis]
18. We have here, a more peculiar situation in so far
as the prosecution having not put the statements, the
witnesses were confronted with, even generally to the
prosecution. The prosecution though having attempted to
cross-examine its own witnesses, it was not done effectively
nor were the statements proved. However, as the learned
Prosecutor submits, there was no requirement for putting the
entire statements made by the witnesses to the Police, since
the relevant departure was only with respect to the
infliction of injuries on the deceased. Both the witnesses in
chief-examination spoke in tune with the FIS as per the
prosecution case, of having seen the accused inflicting the
injury on the deceased. In cross-examination by defence,
there were some embellishments made, not seen from the FIS.
This involved a quarrel having commenced in front of the
toddy shop, which continued in front of the fast-food shop,
in which the accused suffered injuries. Both the witnesses
feigned ignorance as to the infliction of injuries, in the
process, speaking in favour of the accused, in cross-
examination. They have no explanation as to why they spoke
otherwise in chief-examination nor was any question put by
the defence as to why such a departure was made or even as to
why they admitted to seeing the crime proper in chief-
examination.
19. As far as PW1 is concerned, he does not deviate
from the fact that he had signed Ext.P1. But his contention
is that he had made the statement at his house, which the
defence argues has been suppressed. Again pertinently, the
defence does not put any question as to the contents of his
statement allegedly made to the Police earlier to Ext.P1;
which he asserts in cross-examination to have been made at
his residence on the previous night, immediately after the
incident. The accused would urge that the different versions
given in cross-examination by the two eye-witnesses absolves
the accused. It is also argued, in any event the deposition
of witnesses who were declared hostile should be totally
eschewed as being unbelievable. The State however argues for
the position that there is only one crucial departure with
respect to the infliction of injuries and the FIS as also
earlier statements are in tune with what has been stated in
chief-examination. It is for this Court to look at the
different versions and decide on the genuineness of either of
those versions, with corroboration from other materials.
20. The State has, with genuine concern, pointed out
the delay in cross-examination of PW-1 and PW-2. The accused
rubbishes the delay as merely due to the inconvenience of his
lawyer. The further delay caused, as is evident from the
proceedings sheet available in the files produced, was by
reason of the witnesses themselves seeking for adjournment,
argues the accused. We see an application filed by the
Advocate for the accused in the trial court on 14.07.2014,
requesting an adjournment on the ground that he is engaged in
a case before the High Court of Kerala. The said application
was rejected for reason of the trial having already been
scheduled. On the very next day, a copy application to
receive the certified copy of depositions of PWs.1 and 2 has
been filed, again signed by the Counsel for the accused.
Later, an application has been filed on 22.07.2014 citing the
very same reason in the application for adjournment, seeking
recall of PWs 1, 2 & 4, which was allowed. There is thus an
application filed for adjournment, which was rejected and one
filed for recall of the witnesses, which was allowed. None of
these have been recorded in the proceedings sheet by the
learned Judge. Be that as it may, we cannot simply brush
aside the delay. We notice the decision of the Hon'ble
Supreme Court in 2017 (1) SCC 529 Ramesh vs, State of Haryana
where the Hon'ble Supreme Court termed one of the reasons for
witnesses turning hostile as a 'culture of compromise'.
21. Ramesh(supra) was a case in which the accused
husband and in-laws were acquitted of the charge of wife
burning, wherein the brother and father of the deceased
turned hostile and the brother provided an alibi to the
husband. The Hon'ble Supreme Court while affirming the
reversal of the order of acquittal, by the High Court, found
that the witnesses turning hostile is now a common phenomenon
and a regular feature in criminal cases. Reasons were
enumerated with reference to decisions, Krishna Mochi vs.
State of Bihar (2002) 6 SCC 81 [decline of ethical values and
threats levelled],Zahira Habbibulla Sheikkh (5) vs. State of
Gujarat (2006) 3 SCC 374 [negligence, ignorance or corrupt
collusion], Sakshi vs. Union of India (2004) 5 SCC 518
[extreme fear on the mere sight of the accused], State vs.
Sanjeev Nanda (2012) 8 SCC 450 [monetary consideration or
other tempting offers], Manu Sharma vs. State (NCT of Delhi)
(2010) 6 SCC 1 [inducement, intimidation and other
manipulations] and additionally the hassles of a protracted
trial too was noticed. Quoting Bentham: "Witnesses are the
eyes and ears of justice", it was lamented that if they turn
blind and deaf, then the trial gets putrefied and paralyzed
and is completely devoid of fairness. Reference was also made
to an article 'Courts of Law and Legal practice' by Daniela
Berti in which the motivation to turn hostile was stated to
be compensation, threat or blackmail.
22. We also refer to the following passage from
Sanjeev Nanda (supra):
100. This Court in State of U.P. v. Ramesh Prasad
Misra(1996) 10 SCC 360[State of U.P v. Ramesh Prasad Misra & another] held
that it is equally settled law that the evidence of a
hostile witness could not be totally rejected, if spoken
in favour of the prosecution or the accused, but it can
be subjected to closest scrutiny and that portion of the
evidence which is consistent with the case of the
prosecution or defence may be accepted. In K. Anbazhagan
v. Supt. of Police(2004) 3 SCC 767[K. Anbazhagan v. Superintendent of Police
and others], this Court held that if a court finds that in
the process the credit of the witness has not been
completely shaken, he may after reading and considering
the evidence of the witness as a whole, with due
caution, accept, in the light of the evidence on the
record that part of his testimony which it finds to be
creditworthy and act upon it. This is exactly what was
done in the instant case by both the trial court and the
High Court and they found the accused guilty.
[underlining by us for emphasis]
23. We also have to necessarily look at the
decisions, on how the evidence of the witnesses declared as
hostile has to be appreciated; which as per the above extract
has only to be 'subjected to closest scrutiny' and what is
'credit worthy, accepted with due caution'. The accused has
placed before us the decision of the Hon'ble Supreme Court in
Sat Paul[AIR 1976 SC 294] to urge that both the said
witnesses are discredited and as a matter of prudence their
evidence has to be discarded in toto. On a reading of the
decision we are afraid that the dictum is otherwise. The
Hon'ble Supreme Court, in the cited case, considered in
detail the question as to how the evidence of a so called
'hostile' witness has to be appreciated. The Hon'ble Supreme
Court was considering a case where the appellant was said to
have taken a bribe on the basis of the evidence of persons,
who were earlier booked under the Suppression of Immoral
Traffic Act. The appellant was an Assistant Sub Inspector in
the Railway Police and the incident arose allegedly with the
detention of PW1, from the Railway Station, where he was
found loitering without cause. The minor discrepancies and
improbabilities in the evidence of witnesses, though normally
found to be of little consequence; in the context of the
subject persons being discredited persons with suspicious
antecedents their dispositions were held liable to pass the
test of severe scrutiny. There is no such ground arising
insofar as the witnesses in this case. It was also found that
PWs.3 & 4 therein, independent witnesses, did not support the
prosecution.
24. The Supreme Court, in considering the
admissibility of evidence of the independent witnesses,
raised the issue as to whether the Court could validly pick
out tiny bits from their evidence and use the same to support
the prosecution case. On a detailed consideration, it was
held that the terms 'hostile witness', 'adverse witness',
'unfavourable witness', 'unwilling witness' are all terms of
English Law, the admissibility of whose evidence, has given
rise to considerable difficulty and conflict of opinion in
England. In India, as per the Indian Evidence Act, 1874, the
grant of permission to cross-examine one's own witness is not
conditional on the witness being declared 'adverse' or
'hostile'. The grant of permission under Section 142 to put
leading questions or the leave granted under Section 154 is
entirely at the discretion of Court. Relying on [AIR 1922 PC
409 (Vaikundha Nath v. Prasanna Moyi)] it was held so in Para
37 with emphasis:
The discretion conferred by Section 154 on the court is
unqualified and untrammeled, and is apart from any
question of "hostility''. It is to be liberally exercised
whenever the court from the witness's , demeanour temper,
attitude, bearing, or the tenor and tendency of his
answers, or from a perusal of his previous inconsistent
statement, or otherwise, think that the grant of such
permission is expedient to extract the truth and to do
justice. The grant of such permission does not amount to
an adjudication by the court as to the veracity of the
witness. Therefore, in the order granting such permission,
it is preferable to avoid the use of such expressions,
such as "declared hostile", ''declared unfavourable", the
significance of which is still not free from the
historical cobwebs which, in their wake bring a misleading
legacy of confusion and conflict that had so long vexed
the English Courts.
25. The Hon'ble Supreme Court also noticed certain
decisions of the Calcutta High Court interpreting and
applying Section 154 with reference to the meaning of the
term 'adverse' as available in the English decisions. It was
found that those decisions enunciated the proposition that
when a party calling a witness requests the Court to declare
him hostile and cross-examines him with leave of Court, his
evidence has to be excluded altogether in criminal cases.
While expressing a caution in importing, without due
discernment, the principles enunciated in ancient English
decisions for interpreting and applying the Indian Evidence
Act, the decision of a Full Bench of the Calcutta High Court
in [AIR 1931 Cal 401 (Prafulla Kumar Sarcar v. Emperor)] was
approvingly cited, which overruled the earlier decisions of
the Calcutta High Court. Disapproving the earlier decisions,
the Hon'ble Supreme Court itself held so in paragraph 41, 42,
43 & 44:
41. The fallacy underlying this view stems from the
assumption that the only purpose of cross-examination
of a witness is to discredit him; it ignores the hard
truth that another equally important object of cross-
examination is to elicit admissions of facts which
would help build the case of the cross-examiner. When
a party with the leave of the court confronts his
witness with his previous inconsistent statement, he
does so in the hope that the witness might revert to
what he had stated previously. If the departure from
the prior statement is not deliberate but is due to
faulty memory or a like cause, there is every
possibility of the witness veering round to his former
statement. Thus, showing faultiness of the memory in
the case of such a witness would be another object of
cross-examining and contradicting him by a party
calling the witness. In short, the rule prohibiting a
party to put questions in the manner of cross-
examination or in a leading form to his own witness is
relaxed not because the witness has already forfeited
all right to credit but because from his antipathetic
attitude or otherwise, the court feels that for doing
justice, his evidence will be more fully given, the
truth more effectively extricated and his credit more
adequately tested by questions put in a more pointed
penetrating and searching way.
42. Protesting against the old view of the Calcutta
High Court in Sohrai Sao v. Emperor, ILR 9 Pat 474 =
(AIR 1930 Pat 247); Courtney Terrell C. J. pointed out
that the main purpose of cross-examination is to
obtain admission, and it would be ridiculous to assert
that a party cross-examining a witness is therefore
prevented from relying on admission and to hold that
the fact that the witness is being cross-examined
implies an admission by the cross-examiner that all
the witness's statements are falsehood.
43. The matter can be viewed yet from another angle.
Section 154 speaks of permitting a party to put to his
own witness "questions which might be put in cross-
examination". It is not necessarily tantamount to
"cross-examining" the witness. 'Cross-examination',
strictly speaking means cross-examination by the
adverse party as distinct from the party calling the
witness. (Section 137, Evidence Act). That is why
Section 154 uses the phrase "put any questions to him
which might be put in cross-examination by the adverse
party". Therefore, neither the party calling him nor
the adverse party is, in law, precluded from relying
on any part of the statement of such a witness.
44. The aforesaid decisions of the Calcutta High Court
were overruled by a Full Bench in Prafulla Kumar
Sarkar's case (AIR 1931Cal 401) (FB) (supra). After an
exhaustive survey of case law, Rankin C. J. who
delivered the main judgment, neatly summed up the law
at pages 1428-l430 of the Report (pp. 407-408 of AIR):
"In my opinion, the fact that a witness is dealt with
under Section 154 of the Evidence Act, even when under
that section he is 'cross-examined' to credit, in no
way warrants a direction to the jury that they are
bound in law to place no reliance on his evidence, or
that the party who called and cross-examined him can
take no advantage from any part of his evidence. There
is moreover no rule of law that if a jury thinks that
a witness has been discredited on one point they may
not give credit to him on another. The rule of law is
that it is for the jury to say."
[underlining by us for emphasis]
26. We also notice the following extracts from
Prafulla Kumar Sarkar (supra), which enunciation was
respectfully agreed with by their Lordships of the Hon'ble
Supreme Court in Sat Paul[AIR 1976 SC 294]:
"32. As a practical matter, therefore, Section 154
refers exclusively to cross-examination of a witness by the
party calling him. We are not asked to state the
circumstances in which the court may exercise its
discretion in favour of the party seeking to cross-examine,
and indeed it would be impossible to formulate any
comprehensive rule. One observation, however, is
permissible. The object of calling witness is to elicit the
facts, and if the facts to be elicited are such as ought to
be elicited from a witness, and if this cannot be elicited
without cross-examining him, it would be difficult to say
that the discretion was wrongly exercised. Testamentary
proceedings furnish an admirable example of what is meant.
The only surviving witness to a will may be unwilling to
depose in favour of the executor who applies for probate.
He may, however, be more unwilling to commit perjury and if
cross-examined, a few leading questions suggesting the
essential facts may elicit all that is necessary to entitle
the court to direct probate to issue. This instance exposes
the fallacy of the proposition that, as a matter of law,
the evidence of a witness who has been allowed to be cross-
examined by the party who calls him must be wholly
disregarded. When a witness has made contradictory
statements in examination-in-chief and in cross-
examination, whether such cross-examination be by the party
who has called him or by the adverse party or by both
parties, the resultant position as regards his deposition
is the same. It makes not one iota of difference whether
his answers have been given in reply to questions by one
side or by the other or even by the court itself. The
deposition itself and what it is to which the witness has
deposed is all that matters, and the direction to the jury
should be the same in every case and their attention should
be drawn to the contradictions with such observations as to
the circumstances in which contradictory statements were
made as the judge may consider to be necessary; and the
jury should be left to form their own conclusions as to the
value to be attached to the statements which the witness
has made. There can be no question as a matter of law of
rejecting the evidence of such a witness either so far as
it is in favour of the party calling the witness or so far
as it is in favour of the adverse party."
[emphasis by underlining by us]
27. Their Lordships of the Full Bench of the
Calcutta High Court raised six questions and answered four.
It was held that when a witness is treated as 'hostile', (i)
his evidence cannot be rejected in whole or in part, (ii) so
much of it which is in favour of a party calling a witness or
(iii) in favour of the opposite party, also cannot be
rejected. As to the last question, it was held that the whole
of the evidence so far as it affects both parties favourably
or unfavourably must go to the Jury for what it is worth.
Hence, it is for the Court, in the present circumstances of
abolition of Jury trial, to decide on the evidence led, or
rather discern from the conflicting depositions to find in
favour of either the party who produces the witness or the
party to whom, the witness is adverse.
28. In the present case we notice that the
contradictions were not properly proved as required in law.
Even if it were properly done, there is no question of the
Courts placing reliance on such Section 161 statements to
convict the accused as those statements are neither
substantive or even corroborative evidence. This brings us
again to the reality of two different versions having been
deposed, by the witnesses in chief-examination and
cross-examination on the particular aspect of infliction of
wounds on the deceased. In chief-examination both the
witnesses had deposed to their having seen the deceased being
stabbed by the accused. In cross-examination no contradiction
was marked from Section 161 statements of these witnesses,
making it evidently clear that they, at least, had stated
before the Police about their having seen the infliction of
injuries. The FIS of PW1 also indicates the witness having
seen the infliction of injuries, which he stated to the
Police at the first instance. We have before us the
chief-examination and the cross-examination and it is for us
to decide, as any reasonable man would, as to which of them
has the ring of truth.
29. 2013 (7) SCC 125 Akil v. State (NCT of Delhi)
was a case in which, on almost similar grounds of being
engaged in the High Court, adjournment was sought for cross
examination. In that case PW20, a relative of the accused, in
chief examination identified the accused as the person who
attempted to molest the victim and shot dead the deceased on
objections being raised. In cross-examination after two
months the witness resiled from his earlier stand to state
that on the earlier occasion the identification was at the
instance of the Police who tutored him. The Hon'ble Supreme
Court drew an inference that the witness had been won over
and improperly induced to change his stand and gave false
testimony since the witness had completely changed his stand
in cross-examination, exculpating the accused as compared to
the examination in chief in which the accused stood
inculpated. The diametrically opposite stance taken in
cross-examination, which was held with a delay of two months,
was held to be a circumstance in which such an inference
could be drawn. In corroboration the recovery of a gold chain
and Rado watch from the person of the accused, which belonged
to the complainant (PW17) was relied on for corroboration.
The witness who resiled in cross-examination, from the
identification he asserted in chief-examination, was not
declared hostile. Even then the Hon'ble Supreme Court upheld
the reliance placed by the Courts below on the identification
in chief examination. This decision was followed in 2017(9)
SCC 340 (Ratanlal v. Prahlad Jat) wherein an application
filed under S.311 of the Cr.PC after a passage of 14 months
was rejected, which was held to be justified. We have also
seen that the evidence of a hostile witness is not to be
thrown out in its entirety and so much of it which is
corroborated, can be relied on by the Courts (AIR 1989 SC
1543 (State of U.P v. Chet Ram), AIR 2011 SC 200 (Paramjeet
Singh v. State of Uttarakhand), AIR 2011 SC 2328 (Yomeshbhai
Parashankar Bhatt v. State of Gujarat), AIR 1991 SC 1853
(Khujji alias Surendra Tiwari v. State of Madhya Pradesh)
30. AIR 2003 SC 4230(State of Rajastan v. Bhawani
and another) held so:
9.The fact that the witness was declared hostile by the
Court at the request of the prosecuting counsel and he was
allowed to cross-examine the witness, no doubt furnishes no
justification for rejecting en bloc the evidence of the
witness. But the Court has at least to be aware that prima
facie, a witness who makes different statements at different
times has no regard for truth.
His evidence has to be read and considered as a whole with
a view to find out whether any weight should be attached to
the same. The Court should be slow to act on the testimony
of such a witness and, normally, it should look for
corroboration to his evidence. The High Court has accepted
the testimony of the hostile witnesses as gospel truth for
throwing overboard the prosecution case which had been
fully established by the testimony of several eye-
witnesses, which was of unimpeachable character. The
approach of the High Court in dealing with the case, to say
the least, is wholly fallacious.
AIR 2011 SC 3753 (Mrinal Das. V . State of Tripura) held so :
42. In the case on hand Ganesh Kol (PW-2), Satyendra Tanti
(PW-9), Ramakanta Paul (PW-10) and Prabhir Biswas (PW-12)
were declared as hostile witnesses.It is settled law that
corroborated part of evidence of hostile witness regarding
commission of offence is admissible. The fact that the
witness was declared hostile at the instance of the Public
Prosecutor and he was allowed to cross-examine the witness
furnishes no justification for rejecting en bloc the
evidence of the witness. However, the Court has to be very
careful, as prima facie, a witness who makes different
statements at different times, has no regard for the truth.
His evidence has to be read and considered as a whole with
a view to find out whether any weight should be attached to
it. The Court should be slow to act on the testimony of
such a witness, normally, it should look for corroboration
with other witnesses. Merely because a witness deviates
from his statement made in the FIR, his evidence cannot be
held to be totally unreliable. To make it clear that
evidence of hostile witness can be relied upon at least up
to the extent, he supported the case of prosecution. The
evidence of a person does not become effaced from the
record merely because he has turned hostile and his
deposition must be examined more cautiously to find out as
to what extent he has supported the case of the
prosecution.
[underlining by us for emphasis]
31. As we noticed PW1 and PW2 when they were examined
in chief fully supported the prosecution case and their
evidence was in tune with the FIS. We reiterate, there was
no contradiction or omission marked by the defence while
cross-examining the witnesses. In cross-examination there
were some embellishments and with respect to the incident
which took place on the crucial date and the witnesses
resiled from the earlier testimony of they having witnessed
the infliction of injury. According to the new version,
spoken of by both PW1 and PW2, there was a commotion in front
of the nearby toddy shop wherein the deceased was found to be
quarreling. The deceased is said to have then hurriedly
approached the fast food shop with around ten people
following him. He is also said to have ordered an omelet,
with PW2-the fast food shop owner; very unlikely of a person
who was running away from a commotion, with about 10 people
on his heels. Again, it is stated that when he was offered an
omelet, he refused to take it, abused PW2 and stepped down
on to the road, when the people standing there questioned him
and in the resulting scuffle the deceased suffered the injuries
to which he succumbed. It is also to be noticed that both the
witnesses spoke of the accused having worn a 'baniyan' and a
'dhothi'; obviously to challenge the recovery made under S.27
of a jeans and shirt.
32. We also have to notice that PW1 is a person who
suffered an injury in the scuffle. The injury suffered was
also on his left knee. This again is very unlikely in a
scuffle, where the injuries caused on the deceased and on the
witness were with a knife. As per the version in
chief-examination, the incident commenced just in front of
the fast food shop which was on a veranda, at a higher plane
from the road (two steps high as seen from Ext.P2 Scene
Mahazar). PW1 suffered the injuries when the accused
brandished the knife to ward of those who intervened. The
accused was then on the road, to which he stepped down from
the raised veranda after he stabbed the deceased two or three
times. On seeing the deceased being stabbed, PW1 intervened
at which point the accused was on the road and PW1 on the
raised veranda which resulted in the injuries to PW1s knee,
when the accused waved the knife to ward of the intruder. The
said version in chief-examination is very likely, while the
other in cross-examination is very unlikely.
33. Corroboration is available from Ext.P11 which is
the accident register cum wound certificate of PW1, issued by
the hospital in which he took treatment. The history and
alleged cause of injury is written in the hand of the Medical
Officer as "alleged h/o assault by a person named-Faisal at
9.00 p.m. near Poodvel Toddy shop on 27.10.2010'(sic). The
certificate was marked and proved by PW12-the Medical Officer
of the same hospital, who is acquainted with the signature
and handwriting of the Medical Officer who issued it. He also
spoke of the history as is seen from the above recital. 1982
(1) SCC 700 (Mohanlal Gangaram Gehani V. state of
Maharashtra) with respect to S.32 of the Evidence Act held
that the first statement in point of time made by the injured
must be preferred to any of his subsequent statements. The
version of PW1 in cross-examination is quite inconsistent
with the statement first made by him to the Doctor who
treated him. Of course in cross-examination the astute
defence lawyer has made him state that the witness himself
did not speak to the Doctor about the injury and that those
who accompanied him recited the same to the Doctor; quite
unbelivable. For one, there is nothing in the statement which
shows that the injured PW1 was either unconscious or
disoriented at the time of examination. There is hence no
circumstance for the Doctor to have not elicited the history
from the injured. Further the witness does not have a case
that those who were with him had said anything else to the
Doctor or that while speaking on the injury they deliberately
narrated a falsehood. No question was put to the Doctor who
was examined to prove the certificate as to whether the
statement was one elicited fom the injured itself. We are
aware that the Doctor examined was not the Doctor who issued
the certificate, but the defence ought to have questioned him
if it was their case that the injured did not speak on the
cause of injury; in which event it could have been elicited
from the Doctor as to the usual practise. We are hence
convinced that the inconsistent stand taken in cross-
examination was definitely on inducement or intimidation
which we infer garnering support from 2013 (7) SCC 125 Akil
(supra).
34. In addition to the eye witness testimony in
chief-examination, we are inclined to look for corroboration
to the recoveries made under S.27. The recoveries made on the
confession statement of the accused are the knife and the
dress worn by him at the time of occurrence. Ext.P4 is the
recovery mahazar of the knife in which the confession
statement has also been extracted. The accused agreed to
point out the place where he had kept the knife and led the
police to his own house. The knife was recovered from under a
coconut tree on the south-eastern corner of the property.
The recovery as has been argued by the learned Counsel was
not from an open place. The High Court of Delhi in
Shivnarayanan (supra) referred to the spot of recovery in
that case, as an open place, since it was an open plot
adjacent to some factories. It was in that context that their
Lordships specifically found that it was not buried or
concealed under the earth or inside the bushes. Quite
distinctly here, the knife was recovered from the residential
property belonging to the accused himself which cannot be
said to be an open place easily accessible to the public or
even the police nor would it be visible to the public eye. In
AIR 1999 SC 1293 State of H.P v. Jeet Singh the question
arose of a recovery from an open place where the object was
hidden. It was held that if there is concealment and the
object had to be dug out, then recovery would not be vitiated
since though the place was open the buried object would not
be visible to the public. What is relevant is whether the
object recovered was lying in a place acessible to the public
and the said object was visible to all and sundry. Here
neither was the residential property accessible to the public
nor would a knife thrown under a coconut tree be visible to
all.
35. Challenging the recovery of the knife, learned
Counsel for the accused had referred to the cross-examination
of PW1 wherein he deposed that he was shown the knife the
very next day by the police. We do not find any credence to
the said statement made in the tutored cross-examination of
PW1. Another contention is that PW8 Doctor who conducted the
postmortem had said that MO1 was shown to him and it could
only be at the time of postmortem. There is some confusion in
the readable copy of the deposition supplied to us. Hence we
looked at the original record. The statement made by PW8 is:
'All injury except 2,3,19,20 could be caused with MO1 and
MO1 was shown to me while recording statement on
06.11.2010.'
Obviously the statement referred to is that under S.161. We
also looked at the property list at Ext.P15 series by which
the properties were produced before the Magistrate's Court.
MO1 is included in the property list received by the Court on
08.11.2010. Hence the Doctor was shown the knife after its
recovery on 01.11.2010 and before it was produced before
Court on 08.11.2010. We do not find anything to vitiate the
recovery.
36. Now we come to the recovery of the dress of the
accused. At the outset we notice that MO7 shirt was spoken of
by different witnesses as that of the deceased and the
accused. No reliance hence was placed by the trial Judge on
the recovery of the shirt belonging to the accused in which
there were traces of blood found in chemical analysis,
sufficient to identify the group, which was also that of the
deceased. We, from the documents do not agree with the trial
Judge on this aspect. We will first notice the
inconsistencies in evidence. PW4 was the witness examined to
substantiate the recovery of the knife and the dress worn by
the accused. The dress of the accused; jeans and slate
coloured shirt, were marked as MO6 and MO7. The recovery
mahazar is at Ext.P3. The confession statement was on the
date of occurrence and the pants and shirt worn by the
accused at the time of occurrence was hidden in the roof of
the room near the central hall, lying to the south east of
his house. The jeans MO6 was not send for analysis and we
need not tarry on that. However, the shirt recovered on the
confession statement of the accused was described so in
Ext.P3:
"മതൽവവര
1. ക ളറന ത SAN ADISON എന സകർ ഉളത മൻഭ ഗ ക ളർ മതൽ ത ക ട
7 ബടൺ ഉളത , 67 cm ഇറമളത ഇടതഭ ഗ ക" കറ ഉളത അവടവടട രക
പരണതമ യ ക+റ ളറള ഹഫ ക ഷർട എണ - 1
37. From the above extract in Malayalam we emphasise
the sticker on the inside collar of the shirt which reads
'San Adison'. PW6 is the relative of the deceased who had
produced the dress of the deceased to the police which was
again marked as MO7. PW7 is the mahazar witness of Ext.P6 who
too identified the shirt of the deceased as MO7. We look at
the seizure mahazar Ext.P6 which shows the description of the
shirt as item No.2, which is extracted hereunder:
"2. 3റ3 മീ3ട5ടത നലയ ലളത , പ ളറ3ൽ റപ കലകന ട കടയത രക
പരണത അവടവടട 3റയ നലയളതമ യ ഷർട . എണ 1"
The description is of a 'a torn off coffee coloured shirt with
black lines containing blood stains'; torn off obviously due
to the difficulty of removing the shirt from the dead body.
Here we pertinently note that both the shirts were seized
validly and they were marked in evidence. However, either the
same material object was marked differently as that of the
deceased and accused or one was not marked properly, a serious
lapse on the prosecution and of the Court. We hence thought it
fit that we verify the material objects which are brought to
the High Court only if it is found necessary.
38. The trial was proceeded with at Kasaragod, the
northern most district of Kerala and the pandemic restrains
us from asking the material object to be brought in person
from Kasaragod to Ernakulam. We hence directed the Principal
District Judge (PDJ) Kasaragod to come on Video Conferencing
with the material objects from Kasaragod. The PDJ came on
Video Conferencing in the midst of the hearing which was also
proceeded with on the digital mode. The Counsel for the
appellant and the learned Senior Prosecutor were present on
the digital mode. The Court staff, in the presence of PDJ,
displayed two shirts to us which were available with the
material objects of the particular Sessions Case. Myself and
my learned Sister as also the learned Counsels were able to
clearly see the material objects. One was a slate coloured
shirt with the sticker in the inner collar ('San Adison') the
other was a completely torn off coffee colored shirt. PW4 the
mahazar witness of recovery under S.27 was examined first in
point of time. He has identified the shirt recovered at the
instance of the accused as MO7. As we noticed the two other
witnesses who were examined after him also correctly
identified the shirt of the deceased which too was marked by
the Court as MO7. Or they wrongly identified the shirt of
the accused as that of the deceased. The I.O, PW13 was shown
both shirts which were identified, but both were marked as
MO7; obviously a mistake committed by the Court. This is
especially so since both the shirts are available in the
material objects of the Sessions Case preserved in the trial
Court. Whatever be; the identification by PW4 which was first
in point of time has to be accepted.
39. In addition to this we looked at the property
lists at Ext.P15 series by which the I.O produces the
material objects before Court. It shows the 'slate coloured
shirt' of the accused as Item 1, on the third page in the
property list dated 01.11.2010, the description containing
the sticker with 'San Adison'. The 'coffee colored shirt' is
item No.2 in the property list dated 28.10.2010. Ext.P16 is
the forwarding note by which, before the committal
proceedings, the Magistrate forwarded the various objects
produced before Court for chemical examination, which is
dt.16.02.2011. The 'coffee coloured shirt' is shown as item
No.2 and the 'slate coloured shirt is' shown as item No.5,
the descriptions of both are as earlier noticed, with the
later mentioning the sticker on the inside collar with the
name 'San Adison'. Now we come to the report of chemical
analysis which is produced as Ext.P20. The first page shows
the receipt where Item NO.2 is shirt (coffee brown color) and
Item NO.5, shirt (gray colour-obviously the colour can be
said to be slate or gray; as we have personally seen). The
report of analysis speaks of human blood in both the shirts;
ie: on the shirts of the accused and the deceased and the
origin is human and group, B-positive, which is the blood
group of the deceased as seen from the postmortem report
Ext.P7. Witnesses may lie but documents do not. The document
trail in the above case starting from the recovery mahazar
Ext.P3, the property list at Ext.P15 series and the
forwarding note Ext.P16 shows the distinct description of the
shirts worn by the deceased and the accused; that of the
deceased handed over to the police by his relative and that
of the accused recovered on his confession statement. The
chemical analysis report also supports the prosecution case
thus providing scientific evidence to nail the accused as the
perpetrator of the crime.
40. In the above circumstances, based on the
testimony in chief examination of the eye witnesses PW1 and
PW2 as corroborated by Ext.P11 wound certificate of PW1, Ext.
P4 recovery of the weapon, Ext.P3 recovery of the shirt of
the accused, Ext.P15 property list, Ext.P16 forwarding note
and the scientific evidence provided by the chemical analysis
report, Ext.P20, we find the accused guilty. Even if we
eschew the evidence of PW1& PW2 to the extent they inculpate
the accused as to the infliction of injury, we find an
unbroken chain of circumstances unerringly pointing to the
guilt of the accused. The recoveries and scientific evidence
offer corroboration to the prosecution case as first spoken
of by PW1 and PW2. The recovery of the weapon and blood
stained shirt has been effected through the confession
statement of the accused. We find sufficient evidence to
convict the accused for the offences charged and we affirm
the sentence passed. We see serious indifference, if not
negligence on the part of the Addl.Sessions Judge I who tried
the case and a copy of this judgment shall be sent to him as
a word of caution. We dismiss the appeal. We notice that the
appellant/accused was set at large by suspending the sentence
passed by the trial court by order dt.29.06.2017. The bail
bonds executed by the accused appellant would stand cancelled
and he shall surrender before the Addl.Sessions Judge I,
Kasaragod forthwith.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
M.R.ANITHA
JUDGE
Jma/sp
