Kerala High Court
State Of Kerala vs Rasheed on 18 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
CRA(V) NO. 17 OF 2019
AGAINST THE ORDER/JUDGMENT IN SC 821/2015 OF ADDITIONAL
DISTRICT & SESSIONS COURT,MOOVATTUPUZHA
CP 17/2015 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT,KURUPPUMPADY
APPELLANT/WIFE OF DECEASED:
ALLI NOUSHAD, AGED 39 YEARS
W/O.LATE NOUSHAD,
KANAMPURAM HOUSE,
VATTAKKATTUPADI, IRINGOLA.P.O.
PERUMBAVOOR.
BY ADVS.
P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.V.C.SARATH
SRI.VIPIN NARAYAN
SRI.AJEESH K.SASI
SMT.POOJA PANKAJ
SRUTHY N. BHAT
RESPONDENTS/ACCUSED AND STATE:
1 RASHEED, AGED 35 YEARS
S/O.ALI, KOTTIKKATHOTTATHIL HOUSE, INALYPARAMBU
BHAGOM, NORTH EZHIPRAM, MARAMBILLY VILLAGE, PIN-
683547
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
2
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682031
BY ADV SRI.K.RAKESH
OTHER PRESENT:
SRI.V.S.SREEJITH, PUBLIC PROSECUTOR
THIS CRL. APPEAL BY DEFACTO COMPLAINANT/VICTIM HAVING
BEEN FINALLY HEARD ON 25.11.2021 ALONG WITH UNNUMBERED
CRIMINAL APPEAL [ZCRL.APPEAL NO.11658 OF 2020(FILING NO.)],
THE COURT ON 18.02.2022 DELIVERED THE FOLLOWING:
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
UNNUMBERED CRL.A OF 2020
[(ZCRL.APPEAL NO. 11658 OF 2020(FILING NO.)]
CRIME NO.929/2015 OF Kuruppampady Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT IN SC 821/2015 OF ADDITIONAL
DISTRICT & SESSIONS COURT,MOOVATTUPUZHA
CP 17/2015 OF JUDICIAL FIRST CLASS MAGISTRATE
COURT,KURUPPUMPADY
APPELLANT/COMPLAINANT:
STATE OF KERALA
REP.BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY ADV PUBLIC PROSECUTOR SRI.V.S.SREEJITH
RESPONDENT/ACCUSED:
RASHEED, AGED 40 YEARS,
S/O.ALI, KOTTIKKATHOTTATHIL HOUSE,
INALYPARAMBU BHAGOM, NORTH EZHIPRAM, MARAMBILLY
VILLAGE, PIN - 683 107.
THIS UNNUMBERED CRIMINAL APPEAL [ZCRL.APPEAL NO.11658
OF 2020(FILING NO.)] HAVING BEEN COME UP FOR ORDERS ALONG
WITH CRL.APPEAL (V) 17/2019 ON 25.11.2021, THE COURT ON
18.02.2022 DELIVERED THE FOLLOWING:
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
4
'C.R.'
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
------------------------------------
Criminal Appeal (V) No.17 of 2019
and
Crl.M.A.No.1 of 2020
in
Unnumbered Crl.Appeal of 2020
[ZCRA 11658/2020]
-------------------------------------
Dated this the 18th day of February, 2022
J U D G M E N T
Jayachandran, J.
"I think my wife be honest, and think she is not.
I think thou are just, and think thou are not."
(Act II, Scene 3)
"Ay, let her not and perish and be
Damned tonight for she shall not live"
(Act IV, Scene 1)
-'The Tragedy of Othello, The Moore
of Venice'- William Shakespeare.
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
Othello's syndrome is potentially lethal. Several
murders transcending geographical barriers are
rooted in this mysterious phenomenon of human
mind. An accident apparent has a serpentine
effervescence in the murder underneath. We, in
this appeal, are called upon to test the
authenticity of the Prosecution version, in the
midst of inherent limitations in an appeal against
acquittal.
2. Under challenge in the Criminal Appeals above
referred is the judgment dated 25.5.2019 of the
Additional Sessions Court, Muvattupuzha in
S.C.No.821/2015. The impugned judgment acquitted
the accused, who was charged with offences under
Sections 302 and 506(i) of the Indian Penal Code.
Criminal Appeal No.17/2019 is preferred by the wife
of the deceased/victim under the Proviso to Section
372 of the Cr.P.C. The appeal preferred by the
State under Section 378 of the Cr.P.C is not
numbered, since Crl.M.A.No.1 of 2020 for condoning
the delay of 349 days in preferring the appeal
has not been allowed.
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
3. The prosecution allegations are to the
following effect:
The accused, Rasheed, was working as Manager in a
plywood company owned by deceased, Noushad.
Infidelity on the part of his wife predominated
the mind of the accused and he suspected an
illicit relationship by and between herself and
the deceased, manifested by their frequent
contacts over telephone. Out of this enmity, the
accused, with the intention of doing away with the
deceased, rammed his Maruti Ritz car bearing
reg.no.KL-40-H-2322 in the white bullet motor bike
bearing reg.no.KL-43-A-2721 driven by the deceased
on 7.5.2015 at 7.45 a.m. at Kayyanippadi,
Rayamanglam Panchayat. The deceased initially fell
down on the wind shield of the offending car and
thereafter, to the road margin on the southern
side. The accused got out of the car, with a knife
on his hand, and stabbed the deceased on his neck
thrice, inflicting fatal injuries, to which the
deceased succumbed, thus committing offences under
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
Sections 302 and 506(1) of the Penal Code.
4. The prosecution examined 21 witnesses, through
whom Exts.P1 to P38 were marked and MO1 to MO16
were identified. Upon examining the accused under
Section 313 Cr.P.C., DW1 and DW2 were examined as
defence witnesses. Exts.D1 to D4 were marked. In
acquitting the accused, the learned Sessions Judge
frowned upon the evidence of PW1-the solitary eye
witness-and discarded the evidence adduced by the
other witnesses, as unsafe to rely upon.
5. Before addressing the facts and evidence, we
will first address the scope, limitation and the
principles governing an appeal against acquittal.
The jurisdiction of the appellate court is
co-extensive with that of trial court in the
matter of assessment, appraisal and appreciation
of evidence, as also, in determining the disputed
issues [Rajan v. State of M.P. - (1999) 9 SCC 29].
However, it is cardinal to bear in mind the
following principles enumerated by the Hon'ble
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
Supreme Court, while considering an appeal against
an order of acquittal:
1.In an appeal against an order of acquittal,
the High Court possesses all the powers, and
nothing less than the powers it possesses
while hearing an appeal against an order of
conviction.
2.The High Court has the power to reconsider the
whole issue, reappraise the evidence, and come
to its own conclusion and findings in place of
the findings recorded by the trial Court, if
the said findings are against the weight of
the evidence on record, or in other words,
perverse.
3.Before reversing the findings of acquittal,
the High Court has to consider each ground on
which the order of acquittal was based and to
record its own reasons for not accepting those
grounds and not subscribing to the view
expressed by the trial Court that the accused
is entitled to acquittal.
4.In reversing the finding of acquittal, the
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
High Court had to keep in view the fact that
the presumption of innocence stands fortified
and strengthened by the order of acquittal
passed in his favour by the trial Court.
5.If the High Court, on a fresh scrutiny and
reappraisal of the evidence and other material
on record, is of the opinion that there is
another view which can be reasonably taken,
then the view which favours the accused should
be adopted.
6.The High Court has also to keep in mind that
the trial Court had the advantage of looking
at the demeanour of witnesses and observing
their conduct in the Court especially in the
witness-box.
7.The High Court has also to keep in mind that
even at that stage, the accused was entitled
to benefit of doubt. The doubt should be such
as a reasonable person would honestly and
conscientiously entertain as to the guilt of
the accused.
8.Unless the High Court arrives at a definite
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
conclusion that the findings recorded by trial
Court are perverse, it would not substitute
its own view on a totally different
perspective.
9.The appellate Court in considering the appeal
against judgment of acquittal is to interfere
only when there are compelling and substantial
reasons for doing so. If the impugned judgment
is clearly unreasonable and relevant and
convincing materials have been unjustifiably
eliminated in the process, it is a compelling
reason for interference.
[See in this regard:
1.Sheo Swarup v. King Emperor [AIR 1944 PC 227]
2.Noor Khan v. State of Rajasthan [AIR 1964 SC
286]
3.Khedu Mohton & Ors v. State of Bihar [(1970) 2
SCC 450]
4.C.Antony v. K.G.Raghavan Nair [(2003) 1 SCC 1]
5.Ramanand Yadav v. Prabhu Nath Jha [AIR 2004 SC
1053]]
6.Chandrappa v. State of Karnataka [(2007) 4 SCC
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
415]
7.Syed Peda Aowalia v. Public Prosecutor [AIR
2008 SC 2573]
6. In V.N.Ratheesh v. State of Kerala [AIR 2006
SC 2667], the Hon'ble Supreme Court held that, if
the judgment impugned is clearly unreasonable,
where relevant and convincing materials have been
unjustifiably eliminated, it is a compelling
reason for interference.
7. Having taken note of the contours of an appeal
under the Proviso to Section 372 Cr.P.C., we will
refer to the arguments of the respective parties.
Arguments of the appellant/victim
8. Sri.P.Vijayabhanu, learned counsel for the
appellant/victim submitted that the learned
Sessions Judge had gone off tangent and turned a
Nelson's eye to the legally recognisable evidence
adduced by the prosecution, including that of an
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
eye witness (PW1). Learned counsel would elaborate
that PW1 tendered a believable account of what
transpired on the fateful day, particularly, about
the fact that the accused had intentionally
collided his Maruti Ritz car on the bullet
motorcycle driven by the victim. He also spoke
clearly about the incident, where the accused got
out his car with MO1 knife, talked to the deceased
and then stabbed him on the neck thrice. He also
deposed that PW3 told him that he was prevented
from going near the injured/deceased. To eschew
the evidence tendered by PW1, the learned Sessions
Judge proceeded on mere surmises and conjectures,
generalising human reaction to a given situation
and finding fault with PW1 for not
reacting/responding in the so called ordinary
course. Learned counsel for the appellant then
invited the attention of this Court to the
evidence tendered by PW2 and PW3, which
corroborates the version of the eye witness (PW1),
substantially. PW2 is the one who gave Ext.P2
F.I.S. and he tendered evidence in accord
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
therewith. The version of PW2 would clearly reveal
that PW2, along with his father's brother
Sidhique, reached the spot to see the deceased
lying there in a pool of blood; and the accused
sitting in a granite stone nearby. Thus, at the
spot of occurrence, there were only the deceased
and the accused. More important is the evidence
tendered by PW3, who is residing nearby. He
clearly spoke of the accused showing gesture not
to come to the scene of occurrence, when PW3
attempted to go near the deceased. All the three
witnesses, PW1 to PW3, gave evidence regarding the
accident between the Maruti Ritz car and the
bullet motorcycle, both vehicles being found at
the spot of occurrence. There was damage to both
vehicles and the bullet motorcycle was lying down.
Another clinching evidence, which was eschewed by
the learned Sessions Judge, is the availability of
the blood group of the deceased (B+) on the dress
worn by the accused (MO2 shift and MO3 dhothi) at
the time of incident. The evidence in this regard
was adduced by PW21-the investigating officer-, as
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
also, by PW14-the Doctor who conducted the
autopsy. The dress worn by the accused was
recovered as per Ext.P6 mahazar. The recovery is
seen supported by the versions of PW7 and PW8. As
regards the motive, the learned counsel would
submit that the statement given by none other than
the wife of the accused (PW17) would establish the
same. Although she was hesitant to speak
initially-wherefore she was declared hostile-she
deposed that on the day before the incident, there
was a quarrel between herself and the accused over
her chat with the deceased over phone. This
supports the very prosecution case. PW17 also
answered in the affirmative to the suggestion that
her husband left her house in his car, immediately
after the quarrel. Learned counsel seriously
attacked the course adopted by the learned
Sessions Judge in examining MO1 knife by himself,
to ascertain blood stain on the same. The course
adopted is surely impermissible, besides being
illogical to search for blood stain in a knife
after 4 years from the incident. Thus, the
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
evidence of PW1 to PW3, the presence of blood with
the Rh B+ (same as that of the deceased) in MO2
and MO3 dresses worn by the deceased, the motive
established, the damage caused to both the
vehicles as proved in evidence, the recovery of
MO1 knife and the dress worn by the accused under
Section 27 of the Evidence Act, coupled with the
total denial on the part of the accused would
unerringly and clinchingly establish the guilt of
the accused, submits the learned counsel. In the
above setting, the judgment impugned acquitting
the accused can hardly be sustained in law and the
same is contrary to the only possible view
regarding the guilt of the accused, concludes the
learned counsel.
9. Learned Public Prosecutor adopted the
arguments of learned counsel for the
appellant/victim referred above, besides pointing
out that motive, even if not proved, is
inconsequential, in cases where there is direct
evidence. As regards the passive reaction of PW1
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
upon witnessing the incident-frowned upon by the
learned Sessions judge as unnatural and
improbable-the learned Public Prosecutor submitted
that PW1 was in a state of shock, as brought out
in evidence.
10. Per contra, learned counsel for the
respondent/accused supported the judgment in all
respects, while submitting that the prosecution
had failed to establish the guilt of the accused,
beyond reasonable doubt. Learned counsel first
pointed out that PW1 cannot be believed at all for
the following reasons:
a) His presence in the scene of occurrence was not
identified/spoken to by any witness. PW2 referred
to the presence of PW1 only in re-examination,
that too, in answer to a leading question.
b) PW1, who claimed to have witnessed the accused
stabbing the deceased thrice on his neck, had not
disclosed the same to anybody, which conduct is
not merely strange, but unbelievable also.
c) PW1 went missing for a day immediately after
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
the incident. The version of PW1 in this regard
that he went to his native place at Alleppy can
only be taken with a pinch of salt.
d) PW1 has not done anything to save the
injured/deceased. Nor did he inform the Police
about the incident.
e) He did not even inform the incident to Neena
Kunju, the brother of the deceased, with whom PW1
claims close acquaintance. The prevaricating stand
of PW1 in this regard in cross examination make
his evidence, all the more, suspicious.
f) PW1 did not make a cry or a noise upon seeing
the ghastly incident. His version that he was in a
state of shock, as elicited in the last portion of
his cross examination, can hardly be believed.
11. Learned counsel for respondent/accused then
pointed out that the evidence tendered by PW2 and
PW3 are also not convincing and beyond suspicion.
The version that PW2 asked the people who had
gathered in the scene of occurrence as to why they
have not taken the deceased to hospital and the
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
alleged version of a youngster that the accused
prevented him from going near the deceased, is
nothing but a cock and bull story, designed to
suit the prosecution version. Learned counsel
argued that there was no necessity or occasion for
the accused to purchase MO1 knife, when they had
allegedly gone to Bangalore for purchasing
granite, as spoken to by PW 11. There was no
animosity at that point of time and therefore, no
pre-meditation as well, which negates the version
regarding purchase of MO1 knife at that point of
time. Learned counsel pointed out that the accused
is a person whose left leg is amputated, besides
having disability on his hand, as established by
defence evidence adduced. It was impossible for a
person like the accused to stab and kill the
deceased, who is a well built person. Learned
counsel submitted that the motive is not
established and the evidence tendered by PW17
would not vouchsafe the same, besides being in the
teeth of Section 122 of the Evidence Act. No
reliance, whatsoever, can be placed on such
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
evidence. It was seriously contended that if the
evidence tendered by PW1 is discounted, what
remains is nothing but circumstantial evidence.
The prosecution had failed to bring in evidence,
so as to form a complete chain, pointing to the
hypothesis of guilt and guilt alone of the
accused, wherefore, the accused is entitled to
benefit of doubt. The absence of self reparative
process in injury Nos.1 and 2, which, according to
PW14 Doctor is the cause of death, would amplify
that such injuries are not antemortem injuries.
Besides, gaping is not noted in Ext.P13(a)
postmortem report. Learned counsel submitted that
the recovery of MO1 knife cannot be taken stock
of. The knife which was allegedly recovered on
8.5.2015 was produced before the court only on
13.5.2015, the safe custody of which, is not
explained at all. Learned counsel finally reminded
us of the limitations in an appeal against an
acquittal, more so when, the Sessions Court had
the added advantage of seeing and analysing the
demeanour of the witnesses. Learned counsel
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
finally referred to reiteration of the presumption
of innocence of accused on account of the judgment
of acquittal. On such premise, learned counsel
seeks to sustain the judgment impugned.
12. Having referred to the arguments of the
respective parties, we commence with the evidence
of the solitary eye witness, PW1. PW1, who
conducts a tea shop at Vattakkattupady, deposed
that on 7.5.2015, between 7.30 and 8.00 a.m., he
was proceeding in his bike towards Pulluvazhy to
purchase meat. While so, he saw a bullet bike
proceeding in the same direction in front of him.
Then, a car came from the opposite side in high
speed and turned sharply to collide with the
bullet. The person driving the bullet fell on the
bonnet of the car first, and then to the road
margin, at the southern side. PW1 stopped his bike
ahead of the car and turned back, to see the
driver of the car coming out with a knife. The
one, who fell down from the bike was trying to get
up. There was some conversation between them,
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
which PW1 did not hear. Thereafter, the accused
stabbed the biker, which he warded off with his
hand. Then, the accused stabbed on the neck of the
person, who fell down from the bike. He was
stabbed again twice by the accused on the neck.
The knife was then thrown to the bush near a tree
(Vattamaram) standing there and the accused sat on
a granite stone there. PW1 specifically deposed
about a youngster, who came from the house at the
northern side and attempted to proceed towards the
deceased. However, the accused, gestured at him to
go away. PW1 also spoke of the arrival of PW2 and
his relative in a bike, who took the deceased and
accused to the hospital. Thereafter, PW1
identified the car driven by the accused as a
white Maruti car and the bike of the deceased as a
white bullet bike. He identified MO1 knife, MO2
shirt and MO3 dhothi worn by the accused, as also,
MO4 shirt and MO5 dhothi worn by the deceased, at
the relevant time. The statement of PW1 under
Section 164 Cr.P.C. was recorded and he identified
the same as Ext.P1. He also identified the
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
deceased, as Noushad.
13. In cross examination, PW1's acquaintance with
Neena Kunju, the brother of deceased, is elicited.
PW1 denied the suggestion that the bullet motor
bike driven by the deceased over took his bike. An
enabling statement to this effect in his former
statement was marked as Ext.D1. PW1 would depose
in cross that he saw the incident at a distance
of about 25 meters and that he did not point out
the place of occurrence to Police. It was PW1, who
saw the incident first and who was present in the
spot until the deceased was taken to the hospital.
It was also elicited that PW1 did not disclose the
incident to anybody, including the police. He did
not inform Neena Kunju about the incident
initially. When he came back after purchasing
meat, he informed Neena Kunju. PW1 would state
that he was not aware of the phone number of the
plywood factory of Neena Kunju. PW1, thereafter,
stated that by the time he came back after
purchasing meat, all in the locality came to the
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
spot of the incident. Neena Kunju was not at his
factory, when he went to inform him. PW1 saw the
accused along with the deceased. As required by
the Police, PW1 went to Police Station on the next
day, after returning from Alappuzha and gave
statement to Police. After one week, he again went
to the Police Station for giving further
statement, when he identified the accused in the
police station. As an explanation to an answer
elicited to the effect that PW1 did not scream
upon seeing the incident, he deposed that he was
in a state of shock.
14. A scan of the evidence tendered by PW1 does
not commend us to approve the course adopted by
the learned Sessions Judge in discarding his
evidence, as unbelievable. All what is seen
brought out as contradiction in cross examination
is Ext.D1, which pertains to his former statement
that the deceased overtook the motor cycle driven
by PW1. The contradiction above referred is not
with respect to any material aspect, but
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
concerning a peripheral one.
15. Apart from the above contradiction, what is
seen elicited in cross examination is that PW1 who
claimed to have witnessed the incident had not
disclosed the same to anybody, including the
Police. Seeing the accused stabbing the deceased
thrice on his neck, PW1 did not scream; nor did he
made any noise. This behaviour of PW1 is
propounded as strange and improbable and hence not
believable, which contention is seen accepted by
the learned Sessions Judge.
16. The conclusion arrived at stems from
misconception and it is unscientific and illogical
to presume a standard behaviour from human beings
in a given situation. Equally fallacious is the
conclusion drawn based on the deviation from the
so-called standard behaviour. Every individual is
different and distinct, with separate individual
traits and personality patterns. Different persons
react to the same situation differently. Some may
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
react proactively and may even attempt to prevent
the commission of the crime. They may some times
dare even to risk their lives. Au contraire, some
may be passive and may take an unconcerned
attitude. Some may flee from the spot of crime.
Another category can be in the spell of shock,
upon seeing a ghastly incident. We are, therefore,
of the opinion that no standard behaviour can be
expected of human beings, who witness the
commission of a crime. Nor is it permissible in
law to brand a witness as reliable or unreliable
on the sole basis of such standard behaviour, or
deviation therefrom.
17. Barring the above two aspects, nothing is seen
brought out in cross examination, so as to
discredit the authenticity of the evidence
tendered by PW1. There is no inordinate delay in
PW1 giving statement to the police, except of a
single day and no contradiction, sans Ext.D1,
brought out in cross examination. In such
circumstances, disbelieving PW1, on the premise
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
that his conduct is strange, upon witnessing the
incident, can hardly be countenanced in law. At
any rate, the same is not a reason for discarding
the evidence of PW1, completely.
18. We may, in this regard, profitably refer to
the decision of the Honourable Supreme Court in
Vadivelu Thevar v. State of Madras [AIR 1957 SC
614]. The Hon'ble Supreme Court classified the
witnesses into three. The first category is
witnesses who are wholly reliable. The second is
witnesses who are wholly unreliable. There will be
no difficulty to arrive at a conclusion on the
evidence of witnesses, who fit into the above two
categories. If a witness is wholly reliable, the
court can safely rest a conviction on the solitary
testimony of a single witness. If the witness is
wholly unreliable, the same is liable to the
discarded completely. However, there exists a
third category, where witnesses are neither wholly
reliable, nor wholly unreliable. In such cases,
courts will have to be circumspect and should look
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
for corroboration in material particulars, by way
of reliable testimony, direct or circumstantial.
This principle is reiterated in several decisions,
one of which is Lallu Manjhi v. State of Jharkhand
[AIR 2003 SC 854]. In that case, it was found that
the evidence of a witness, who had substantially
improved his version before the Court, could
neither be totally discarded, nor be implicitly
accepted.
19. In Sambath Kumar v. Inspector of Police [AIR
2012 SC 1249], the Hon'ble Supreme Court found
that the evidence of one witness was in complete
contrast with his former statement and that a
vital information as regards the presence of the
accused near the deceased at or around the time of
incident was withheld for a period of five years,
until he was examined in court, without offering
any satisfactory explanation. Even then, the
Hon'ble Supreme Court did not characterise the
witness as a completely unreliable witness.
Instead, the Hon'ble Supreme Court only said that
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
the courts will have to look for independent
corroboration of his version.
20. In the backdrop of the above exposition of
law, the defence, at best, could have aspired to
treat PW1 as neither wholly reliable, nor wholly
unreliable, and, require the court to legitimately
seek for corroboration of his version.
21. Let us proceed to the evidence tendered by PW2
and PW3. PW2 gave Ext.P2 F.I.S. on the date of
occurrence, namely, 7.5.2015 at 10.00 a.m. He
deposed that he reached the place of occurrence,
along with his father's younger brother, Siddique,
to see a white Ritz car, with its front portion
elevated to a mud block on the southern side of
the road and a bullet motorbike lying down there.
They also saw the deceased, lying there in a pool
of blood and the accused sitting in a granite
stone immediately on the south-western portion.
They blocked a car passing by and carried deceased
to it. The accused was also persuaded to get into
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
the car for being taken to the hospital. Siddique
and one Muhammed accompanied the accused and
deceased. PW2 followed them in his bike to Sanjoe
Hospital. When PW2 reached the hospital, the
Doctor told them to inform the police, as there
were injuries on the neck of the deceased.
Accordingly, PW2 gave Ext.P2 F.I.S. By about 1.45
p.m., PW2 had shown the place of occurrence to the
police, whereupon scene mahazar was prepared. On
the same day evening, the police took his
statement. On 13.5.2015, PW2's statement was again
recorded, when PW2 identified the accused as the
one who sat on the granite stone at the time of
occurrence. When PW2 questioned the neighbouring
persons gathered there as to why the deceased was
not taken to the hospital earlier, a youngster
among them replied that the one who was sitting on
the granite stone prevented them from going near
the deceased.
22. In cross, PW2 deposed that others were also
present, when the Doctor spoke about the injuries
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
on the deceased. It is elicited that in Ext.P2
F.I.S., PW2 had stated that he came to know from
hospital officials that there is deep injury on
the neck of the deceased. PW2 clarified that the
Doctor spoke in his presence. It is elicited that
no one spoke to PW2 as having witnessed the
incident, when PW2 reached the place of
occurrence. PW2 would state that he knew the
deceased earlier, but had only seen the accused,
without knowing his name. It is also elicited that
the one who gave information about the accident to
PW2 looks like a Tamilian, whom he has not seen
thereafter.
23. In re-examination, a specific question is seen
put to PW2 as to whether he had seen PW1 at the
place of occurrence. This question was opposed as
a leading question. Although the objection was
recorded, the same was overruled, with the result,
the answer given by PW2, that he saw PW1 at the
place of occurrence, is seen recorded. We cannot
approve the manner in which a crucial information
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
has been elicited in re-examination. As objected,
it was a leading question as regards the presence
of PW1 in the place of occurrence. The explanation
recorded by learned Sessions Judge that the
question pertains to an undisputed fact, as
clarified by the Public Prosecutor, cannot be
accepted in law. The facts sought to the elicited
were certainly disputed. The answer could have
been recognised, had it been made, not in response
to a leading question. Therefore, we cannot take
stock of that part of PW2's evidence identifying
PW1 at the scene of occurrence.
24. Nevertheless, the evidence spoken to by PW2 in
chief examination is not shaken at all in the
cross examination. It could thus be seen that the
prosecution version is substantiated to a
considerable extent by the evidence spoken to by
PW2, besides corroborating the evidence of the eye
witness, PW1. PW2 very much spoke about the
deceased lying in a pool of blood in the place of
occurrence and the accused sitting beside him,
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
unperturbed, in a granite stone. He also saw the
white Maruti Ritz car and the bullet motorcycle in
the place of occurrence, which has been proved by
other evidence to have been used by the accused
and deceased, respectively, at the relevant time.
PW2 also referred to an answer given by a
neighbouring youngster that the accused prevented
him from approaching the deceased.
25. PW3 is that youngster spoken of by PW2, whose
evidence we will now consider. PW3, the son of a
retired Principal, was conducting a software
company. His house is precisely at the northern
side of Kayyanippady, the place of occurrence. On
7.5.2015, by about 7.30 a.m., PW3 heard the sound
of an accident, and when he came out, he saw a
white Ritz car and a white bullet lying involved
in an accident, on the southern side of the road.
The Ritz Maruti car hit on the mud block of the
house of one Santha, which was located on the
opposite side of the house of PW3. He saw the
deceased lying near the car and the accused
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sitting in a granite stone, nearby. When PW3 tried
to go near the deceased, the accused dissuaded him
by gesturing with his hand, indicating to go away.
He disclosed this fact to PW3. PW3 identified the
accused in the court.
26. It is important to note that PW3 was not
subjected to any cross examination, whatsoever.
Thus PW3 also vouched the facts, which were spoken
to by PW2, in substantial support to the
prosecution version, as also, in corroboration of
the version of PW1. The fact that the accused
prevented PW3 from going near the deceased is a
clear incriminating circumstance as regards the
intention of the accused to finish off the
deceased. While PW1 and PW2 testified this fact as
having spoken to them by a youngster, PW3-the
youngster-gave direct evidence regarding this
important fact.
27. Motive is sought to be proved by the evidence
tendered by PW17-the wife of accused-,the
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admissibility of which is seriously challenged by
learned counsel for accused, in view of the
express bar under Section 122 of the Evidence Act.
We will first refer to the evidence of PW17.
28. PW17 deposed that deceased was owner of the
company where the accused was working and that
they were family friends. The witness was declared
hostile when she deposed that she does not
remember the mobile phone numbers of herself and
the deceased, which she had specifically stated in
her former statement. PW17 would state that
accused had disability to one of his legs and
hands at the time of marriage in the year 2011. In
2003, he lost his left leg in an accident and he
is fitted with an artificial limb. PW17 would
state that the deceased and the accused, along
with their families, went for Umrah. Accused
performed all rituals of Umrah, involving
considerable physical labour, by himself. Accused
used to drive car and motorcycle and he can climb
steps and escalators. With the aid of the
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
artificial limb, the accused can perform all
day-to-day chores. She deposed that during May
2015, the accused used to commute in a white
Maruti Ritz car bearing no.KL-40-H-2322.
29. The deposition to the following effect is
controversial in the context of Section 122 of the
Evidence Act. PW17 stated that she had spoken to
the deceased over phone, upon returning after
Umrah. PW17 would admit that, on the day before
the death of the deceased, there was a quarrel
between PW17 and the accused, over the telephonic
chats between the deceased and herself and that
she was questioned in this regard by the accused.
PW17 further deposed that the accused left the
house in his car after quarrelling with herself on
the day before the deceased was killed and that
she left matrimonial home on that day, by the
evening. Again PW17 would depose that the deceased
and the accused were thick friends, like play-
mates.
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
30. Let us now refer to Section 122 of the
Evidence Act, which is extracted hereunder:
"122:Communications during marriage.- No
person who is or has been married, shall be
compelled to disclose any communication made
to him during marriage by any person to whom
he is or has been married; nor shall he be
permitted to disclose any such communication,
unless the person who made it, or his
representative-in-interest, consents, except
in suits between married persons, or
proceedings in which one married person is
prosecuted for any crime committed against the
other."
31. Section 122 recognises the age-old concept of
marital confidence that all communications between
spouses during the wedlock are sacrosanct. In
England The Commission of Common Law Procedure in
its second report, submitted in 1853 observed as
under:
"So much of the happiness of human life may
fairly be said to depend on the inviolability
of domestic confidence that the alarm and
unhappiness occasioned to society by invading
its sanctity and compelling the public
disclosure of confidential communications
between husband and wife would be a far
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
greater evil that the disadvantage which may
occasionally arise from the loss of light
which such revelations might throw on the
questions in dispute...hence all
communications between them should be held
privileged."
32. While appreciating the sacrosanctity attached
to communications between spouses, we are afraid
whether the observations made by the above
Commission in the year 1853 requires a re-visit,
in the touch stone of competing interests between
public crimes of extreme cruelty on the one hand;
and the peace of families, on the edifice of
mutual confidence and trust, on the other. Can we
recognise any more that the public interest in the
context of disclosure of truth about a crime in a
court of law is inferior or subservient to the
happiness and peace of a family, secured by
suppression of such truth, backed up by statute?
One cannot keep happiness and peace of his family,
after indulging in a crime and then seeking
support of law to suppress it. What about the
peace and happiness of the family of victim? What
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
about the underlying public interest being
seriously jeopardized for the sake of peace and
happiness of the family of the culprit? We prefer
to believe in the primacy and paramountcy of truth
and hence, not in the least, perplexed to vote
against the continuance of the provision, as it
stands now, in the statute book. Its high time
that Section 122 is subjected to further scrutiny,
more so in the context of changing values
governing human and familial relations.
33. A word of caution was raised much before us by
the Bombay High Court in Vilas Raghunath Kurhade
v. State of Maharashtra [2011 Crl.LJ 3300]. After
referring to the peril of recognising
sacrosanctity of spousal communications as
predominant, the Bombay High Court recommended the
State Government to approach the Law Commission or
the Ministry of Law and Justice, Government of
India with a proposal for amendment of Section 122
of the Evidence Act. Be that as it may. We are,
nonetheless, bound by Section 122 and its
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
implications, so long as it remains in the statute
book.
34. Section 122 has two limbs as follows:
A married person shall not be :
(1) compelled to disclose any communication
made to him during marriage by any person
to whom he is married; and
(2) permitted to disclose any such
communication, except
(a) when the person who made it or his
representative in interest consents or
(b) in suits between married persons,
or
(c) in proceedings in which one married
person is prosecuted for any crime
committed against the other."
35. The first limb of Section 122 pertains to the
component of compulsion in disclosing any
communication of the nature referred to in Section
122 by an unwilling witness. The second limb
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contemplates prohibition of disclosure of such
communication even by a willing witness.
36. In Emperor v. Ramchandra Shankarshet Uravane
[AIR 1933 Bom 153], it was held that prohibition
contained in Section 122 rests on no technicality
that can be waived at will, but is founded on a
principle of high import, which no court is
entitled to relax. It was further held that the
prohibition is not confined to communications of a
strictly confidential character, but all
communications of whatever nature, which passed
between husband and wife.
37. A close scrutiny of Section 122 would reveal
that the bar of disclosure is only to a
'communication' made to a witness - a married
person - by his or her spouse, during marriage.
38. In Ram Bharosey v. State of U.P. [AIR 1954 SC
704], the Hon'ble Supreme Court distinguished
between communication between spouses; and their
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
acts and deeds. The relevant findings are as
follows:
"6. Firstly, there is the evidence of P.W.2
that the accused was seen in the early hours
of the 27th May 1952 while it was still dark,
coming down the roof of this house, that he
went to the bhusa kothri and came out again
and had a bath and put on the dhoti again.
This is not inadmissible under Section 122, as
it has reference to acts and conduct of the
appellant and not to any communication made by
him to his wife. Secondly, there is the fact
that among the articles delivered by him to
P.W.18 at the time of the investigation on the
morning of the 27th was a blood-stained
gandasa."
39. The dictum laid down in Ram Bharosay (supra)
is followed by the Allahabad High Court in
Shahnawaj Akhtar v. State of U.P. And Ors.
[MANU/UP/1024/1991] and by the Bombay High Court
[Aurangabad Bench] in Bhalchandra Namdeo Shinde v.
State of Maharashtra [MANU/MH/0111/2003]. In
Shahnawaj Akhtar (supra) it was held thus:
"9. In view of the law laid down by the
Hon'ble Supreme Court, it is, therefore,
clear that what is barred under Section 122
is the communication by one spouse to the
other made during marriage and not the acts
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made by one spouse in the presence of the
other. Section 122 cannot, therefore, be a
bar for the wife to depose against her
husband. The bar is only against the
disclosure by her of the communication made
by her husband during marriage to her...."
40. In Bhalchandra Namdeo (supra), the Bombay High
Court sifted the communication part, from what has
been witnessed by the witness. That part of the
evidence constituting communication between
spouses was held inadmissible under Section 122 of
the Evidence Act. However, the acts of the
husband, witnessed by wife, was held admissible.
41. Analysed in the backdrop of the legal position
expatiated above, we are of the considered opinion
that the entire evidence adduced by PW17-except
the one referring to the quarrel between accused
and PW17 on the day prior to homicide of deceased-
are admissible in evidence. The admissibility of
deposition of PW17 regarding the quarrel is to be
addressed separately. What PW17, essentially,
spoke is about a quarrel which took place on the
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day prior to the incident, which is concerning the
chat between PW17 and the deceased over phone. The
accused questioned (ച ദ ച ര ന) PW17 in this
regard.
42. At first blush, it may appear that the quarrel
is more of a deed or a conduct, than a
communication. It is an activity in which the
accused and PW17, both, indulge, and hence, one
may be easily persuaded to qualify it as a deed
and not as a communication, thus sanctioning its
admissibility relying upon Ram Bharosey (supra).
However, a closer scrutiny would indicate that the
quarrel between PW17 and accused is a means by
which the accused had signified and communicated
his protest over the chat between PW17 and
deceased. A quarrel, in all probability involves,
mutual conversation, where, in the instant case,
the accused should be interested to find fault
with PW17 in chatting with deceased, and PW17 may
perhaps justify it as an innocent conduct. All
what we are trying to point out is that such
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quarrel involves communication by each other of
the stand being taken by the respective parties.
43. The sacrosanctity of a family, which includes
its privacy, is what is essentially sought to be
protected by virtue of Section 122. If that be so,
the aspect involved herein, touching the fidelity
of PW17, is all the more a finer and important
one, which requires to be preserved from being
divulged, having regard to the purpose and purport
of Section 122 of the Evidence Act. Evidence
regarding quarrel and the reason behind it are
matters which fit into the prohibited compartment
of communication between spouses, and therefore,
inadmissible. We thus conclude that, that part of
the evidence tendered by PW17 which pertains to
the quarrel between accused and PW17 is liable to
be eschewed as inadmissible under Section 122 of
the Evidence Act.
44. The effect of the above discussion is that the
evidence tendered by PW17 cannot be reckoned,
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insofar as the motive of the crime is concerned.
No other evidence has been adduced by the
prosecution to prove motive. The inescapable
conclusion, therefore, is that the prosecution
failed to establish the motive alleged.
45. We will quickly refer to the evidence tendered
by the remaining witnesses for the sake of
completion. PW4 and PW5 are attesters to Ext.P3
inquest report and Ext.P4 scene mahazar,
respectively. PW6 is the attester to Ext.P5
seizure mahazar evidencing recovery of MO1 knife
under Section 27. PW27 is the attester to Ext.P6
mahazar evidencing recovery of dresses worn by the
accused at the relevant time. PW8, the H.C.P.O.
attached to Kuruppampady Police Station, is the
person in whose handwriting Ext.P6 mahazar was
prepared. He supported the recovery vide Ext.P6.
PW9 was the Chief Medical Officer of Sanjoe
Hospital, who confirmed the death of the deceased.
PW10-the elder brother of the father of the
deceased-is the owner of the white bullet
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
motorcycle driven by deceased. PW11 is the brother
of the wife of deceased, examined to prove the
purchase of MO1 knife by accused from Bangalore.
PW12 is the brother of the accused and the owner
of the Maruti Ritz car driven by the accused at
the relevant time. PW13 is the Professor and Head
of the Department of Physical Medicine, Medical
College, Thiruvananthapuram, who examined the
accused and issued Ext.P12 certificate regarding
the extent of his handicap, as also, the efficacy
of his prosthesis. PW14 conducted autopsy and
issued Ext.P13 postmortem certificate. According
to him, the death occurred due to injury nos.1 & 2
sustained to neck, which are independently
sufficient in the ordinary course of nature to
cause death. He would endorse that injury nos.1 to
4 could be caused by a weapon like MO1. PW15, the
Motor Vehicle Inspector, inspected the Maruti car
and the bullet motorcycle involved in the accident
and issued Exts.P14 and P15 certificates,
respectively. PW16, the Joint R.T.O, Perumbavoor
produced Exts.P16 & P17 RC particulars of the car
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
and bullet motorcycle concerned. The evidence
tendered by PW17 and its impact has already been
discussed above. PW18 is the father of the
accused, who admitted ownership of the Maruti Ritz
automatic car. PW19 is the Judicial First Class
Magistrate, Kothamangalam examined in proof of the
statement of PW1 under Section 164 of the Cr.P.C.
PW20, the Nodal Officer of Bharathi Airtel Ltd.,
produced Exts.P22, P23 & P24 subscriber details
and call details of three phone numbers, whose
evidence is of little use to prosecution. PW21 was
the Circle Inspector of Police, who conducted
investigation. We will refer to evidence of the
witnesses above referred in detail based on
contextual necessity, while discussing the
remaining points.
46. The defence evidence consists of oral
testimonies of DW1 and DW2 and Exts.D3 and D4
marked through them, Exts.D1 & D2 contradictions
being marked while examining prosecution
witnesses. Ext.D3 is the reply issued under the
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
Right to Information Act by DW1-the Secretary of
Rayamangalam Panchayat-to show that PW1 was not
issued with any licence to conduct tea shop during
2014-2019. Ext.D4 is the treatment summary of
accused issued by DW2, the Medical Superintendent
of Medical Trust Hospital, which evidence is aimed
at establishing the serious handicap of the
accused, to canvas his incapability to perform the
overt acts alleged.
47. Having scanned the evidence tendered by the
prosecution, as also, the defence, we are clearly
of the view that the evidence tendered by PWs 1 to
3 inspire abundant confidence in the mind of the
court. We are primarily of the opinion that there
is no serious infirmity in the evidence of PW1, so
as to disbelieve him. As already indicated,
witness cannot be branded as reliable or
unreliable solely on the basis of his
response/reaction upon witnessing the incident.
Even if it is assumed that PW1, the solitary eye
witness, is not fully believable, necessitating
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
corroboration of his version, the same, in our
considered opinion, has been amply done by the
evidence tendered by PW2 and PW3. PW3, by his
version, had gone an extra mile closer to
prosecution version by deposing that the accused
prevented him from going near the deceased, thus
indicating the definite intention of accused to
ensure death of deceased. This aspect was also
spoken of by PW1; validating further the reliance
placed by us, on his ocular testimony.
48. The following two points will substantiate our
above conclusion :
a) Presence of Rh B+ blood (the blood group of
the deceased) in the dress of the accused :-
The prosecution had established the presence of
human blood of the group B+ - the same blood group
as that of the deceased - in the dress worn by the
accused. The dress of the accused was recovered
pursuant to a disclosure made by the accused under
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
Section 27 of the Evidence Act and recovery
effected vide Ext.P6 mahazar. The disclosure part
is proved by the evidence tendered by PW21, the
investigating officer, to the effect that the
accused had kept his shirt and dhothi in a shed
near his house. Ext.P6 is the mahazar evidencing
recovery of MO2 shirt and MO3 dhothi worn by the
accused at the relevant time. PW7 is the attester
to Ext.P6 mahazar, but he only identified his
signature in Ext.P6, without identifying the dress
recovered.
49. However, this lacuna is seen filled up by the
evidence tendered by PW8, the H.C.P.O., attached
to Kuruppampady Police Station, in whose
handwriting Ext.A6 mahazar was prepared. He
deposed in detail about recovery of dress worn by
accused at the relevant time. He identified MO2
shirt and MO3 dhothi with respect to its nature
and colour and deposed that blood stains were
found on the same. In cross, it was elicited that
on the same day, a mahazar for recovery of MO1
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
knife was also prepared and that it was PW8, who
recorded the statements of several witnesses in
this case. Thus on the basis of the evidence
tendered by PW8, PW7 and PW21, we find that
recovery of MO2 shirt and MO3 dhothi worn by the
accused under Section 27, has been satisfactorily
established.
50. Having found the recovery in favour of the
prosecution, the next aspect is with respect to
proof regarding the blood group in the dress, as
also, proof regarding blood group of the deceased.
As regards the latter, Ext.P13 postmortem report
vouchsafe the same. Ext.P13 is proved through
PW14, who conducted autopsy. As regards the
presence of blood in MO2 shirt and MO3 dhothi, the
proof lies in Ext.P35 report of Regional Chemical
Analysis Laboratory, Kakkanad. MO2 shirt is
referred to as item no.5 in Ext.P35 and MO4 dhothi
as item no.6. As regards MO5 shirt, there is a
clear finding in Ext.P35 that it contains human
blood of the group B. However, as regards MO3
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dhothi, the blood group could not be detected
conclusively, although it is found that it
contains human blood. We could, therefore, safely
conclude, at least with respect to MO2 shirt, that
it contains human blood with Rh B, which is the
same blood group of deceased. This is a clinging
piece of evidence insofar as guilt of the accused
is concerned. No explanation, whatsoever, is
forthcoming on the part of the accused in this
regard. We, therefore, conclude that the dress of
the accused was bloodied only when the stabs were
inflicted, as the accused was sitting at a
distance and not attempting to help the injured.
b) Accident and user of vehicles concerned
established :-
51. This evidence of the prosecution is more in
the nature of circumstantial evidence, which would
corroborate other evidence adduced by prosecution
as regards guilt of the accused. According to
prosecution, the accident involving the two
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vehicles concerned, the Maruti Ritz car and the
bullet motorcycle, at the spot of occurrence is
established by evidence adduced. The prosecution
primarily relies upon evidence tendered by PW1,
PW2 and PW3-the eye witnesses who saw the vehicles
involved in the accident at the spot of occurrence
-to establish the factum of accident. In support
thereof, the prosecution relies upon Ext.P4 scene
mahazar prepared by PW21, the investigating
officer, wherein the lie and position of vehicles
involved in the accident, the make and
registration number of the vehicles etc. are
referred to in detail. MO-10 to MO-13 are pieces
of broken parts of Maruti Ritz car, whereas MO14
and MO15 are parts of white bullet motorcycle.
These are recovered by PW21 and spoken to by him.
In order to substantiate the accident, further
evidence was adduced by prosecution by virtue of
Ext.P14 report preferred by PW15, the Motor
Vehicle Inspector of the Sub RTO concerned, who
inspected the vehicle at the occurrence spot on
the same day, that is 7.5.2015. As many as 14
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damages to the Maruti Ritz car are noted in
Ext.P14 report. The name of the owner is shown as
Ali, S/o.Abdul Rahiman (PW18). Similarly, Ext.P15
report is preferred by the same Motor Vehicle
Inspector (PW15) after inspecting the bullet
motorcycle at the occurrence spot on the same day.
In the bike, PW15 noted as many as 15 damages and
the owner is shown as Ali Marakkar (PW10). PW15
would clearly depose before court that the damages
shown in the reports occurred in the accident. He
was not subjected to any cross examination at all.
Thus, the evidence tendered by prosecution would
clearly establish the factum of accident involving
the two vehicles concerned, a Maruti Ritz car
bearing no.KL-40 H 2322 and a white bullet
motorcycle bearing no.KL-43 A 2721.
52. The next aspect is more important, which
concerns about the user and ownership of the above
vehicles. As regards ownership, the evidence
tendered by PW16-the Joint R.T.O, Perumbavoor-who
produced the R.C particulars of Maruti Ritz car at
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
Ext.P16, is quite relevant. As per Ext.P16, owner
of the car is one Ali (PW18), who is none other
than the father of the accused. When examined
before the court he would deny the user of the car
by the accused at the relevant time. But he
admitted receipt of the car from the Magistrate
Court concerned, after issuing necessary receipt.
The deposition of PW18 as regards user is only to
be discounted, as an attempt of the father to save
his son. The user of car by the accused is spoken
to by other witnesses, including PW17. Besides,
PW1, who saw the accused ramming his car into the
motorcycle driven by the deceased would vouch the
same. The presence of accused at the accident spot
was confirmed by PW2 and PW3. Therefore, we would
conclude the user and ownership of Maruti Ritz
automatic car by the accused and his father,
respectively, as established. Likewise, Ext.P17 is
the registration particulars of the bullet
motorcycle produced by PW16. The owner of the bike
as per Ext.P17 is PW10 (Ali Marakkar). Deceased is
the nephew of PW10. PW10 deposed before court that
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he is the owner of bullet motorcycle concerned. He
also vouchsafed the user of the said vehicle by
his nephew, the deceased. Apart from the above
circumstances, the licence of the accused and
deceased are also produced through PW16. We thus
conclude that the user and ownership of the
respective vehicles by the accused and the
deceased respectively, as also, their relatives
above referred is established beyond doubt.
Therefore, the factum of accident, coupled with
proof regarding the user of the vehicles involved,
would substantially support other prosecution
evidence adduced to establish the culpability of
the accused in the crime.
53. As against the above evidence adduced by the
prosecution, the defence evidence only attempts to
suggest that the accused, being a handicapped
person cannot perform the overt acts, constituting
the crime alleged. Ext.D4 certificate is produced
in support thereof. However, this evidence is in
the teeth of evidence tendered by none other than
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
wife of accused to the effect that, with the aid
of the prosthesis, accused can perform all
activities. She even vouched that during the
course of Umrah, accused performed all
difficult/physical acts, involving considerable
labour, by himself, without any assistance,
whatsoever. This is also supported by evidence
tendered by PW13, the Doctor, who examined the
accused and his prosthesis and opined that accused
can perform the activities ordinarily done by any
other human being. The fact that accused used to
drive the car is also vouched by the evidence
tendered by PW17 and PW11, his brother-in-law. In
such circumstances, the defence version, which
attempts to suggest a complete incapability/
disability on the accused in performing the overt
acts alleged, is only to be discarded.
54. The above referred overwhelming evidence
adduced by the prosecution, in our estimation, are
quite sufficient to arrive at the conclusion as
regards guilt of the accused.
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55. Now, the moot question is whether the
conclusion arrived at by us is only a
different/alternative view possible, while
appreciating the evidence; or is it the only view
possible in the light of the evidence adduced? In
the case of former, it is settled that the
judgment impugned cannot be interfered with.
However, in the case of latter, the judgment of
acquittal, amidst all limitations for interference
in an appeal, will have to be set aside. It is
also settled, by virtue of the decision of the
Hon'ble Supreme Court in Kashiram v. State of M.P.
[(2002) 1 SCC 71], that it is obligatory on the
part of the High Court to discuss the reasons
given by the trial court to acquit an accused, to
ascertain whether such reasons are liable to be
dislodged on the basis of the materials on record.
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
56. The following are the points which weighed
with the learned Sessions Judge to acquit:-
PW1 disbelieved:-
The learned Sessions Judge chose to disbelieve PW1
essentially for the reason that his conduct upon
witnessing the incident was contrary to the normal
course of human conduct. PW1 has not uttered a
word seeing the incident; he did not extend any
help to the injured after seeing the accident; he
did not inform the incident to anybody, including
the police; and, he vanished from the place of his
ordinary residence for a day and resurfaced only
on the next day. The above referred conduct of the
accused was found to be quite contrary to the
normal course of human conduct, which renders his
evidence wholly unreliable.
57. We are at a loss to endorse the reasoning and
approve the above findings. The learned Sessions
Judge standardised the immediate reaction of an
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
ordinary human being upon seeing an accident that
he will suddenly come to the rescue of the
injured. This generalisation of human conduct,
according to us, is palpably wrong and legally
unsustainable. As already indicated earlier in
this judgment, different human beings react
differently to a given situation and no
credibility, or lack of credibility, can be
attached to their version based on such standard
behaviour, or deviation therefrom. The learned
Sessions Judge went perverse in finding that PW1
was sure that something more is to follow, as a
reason for his inaction on seeing the incident. We
find no justification for such conclusion, based
on a purely imaginary plane, unsupported on facts.
PW1 is not obliged in law to explain his alleged
inaction upon seeing the incident. The finding
that PW1 was witnessing the incident, as if he was
watching a movie, without alighting from the
motorcycle, to say the least, is perverse. The
learned Sessions Judge also found fault with PW1
for not having disclosed the incident to anybody,
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
including the police. According to the learned
Sessions Judge, PW1 could have spoken about the
incident to PW2 and PW3, besides to the brother of
the deceased, Neena Kunju, with whom PW1 would
claim close acquaintance. The above aspects
emanating from the reaction of PW1 are, by itself,
not sufficient to disbelieve PW1 as a wholly
unreliable witness. As already indicated, we
cannot find any inherent infirmity in the evidence
tendered by PW1 on the basis of the above conduct
taken note of by the learned Sessions Judge. As
referred to earlier in this judgment, some may
react proactively to an incident; some may flee
away; some may remain numb and some others may be
shocked. Unless the presence of the witness at the
scene of occurrence is found inherently
improbable, or proved to be impossible on the
basis of the evidence adduced, he cannot be
disbelieved for not having reacted in the so-
called ordinary course.
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58. The learned Sessions Judge disbelieved PW1
also for the reason that he had not informed the
incident to somebody in the house of the deceased.
Another reason to disbelieve PW1 is his narrative
regarding the manner in which the accused got out
of the car. We are in complete disagreement with
the above findings of the learned Sessions Judge.
PW1 is not obliged to inform the incident to any
of the family members of the deceased, merely
because he knows the family house of the deceased.
Nor can his trustworthiness be adjudged in the
negative for reason of the alleged failure to
inform the family members of the deceased.
Similarly, when a witness says that the accused
got out of the car holding a knife in his right
hand and pushing the door with his left hand,
there is no rhyme or reason in thinking why the
accused should do so. The finding of the learned
Sessions Judge that it would have been much
easier, had it been the other way round, reveals
undue levity in adjudication. In this regard, the
disability of the accused is also liable to be
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
taken into account, which perhaps persuaded him to
get out of the car in a peculiar manner. It is
relevant in this regard to point out that the
accused had lost his left leg (supported by
prosthesis) and a portion of left hand - as spoken
to by his wife/PW17 and PW13 doctor - which
explains why he held MO1 knife in his right/able
hand and chose to open the door of the car by his
impaired left hand.
59. The further finding of the learned Sessions
Judge relying upon Ext.D3 reply under the Right to
Information Act, that running the tea shop by PW1
is not established, also cannot be approved.
Firstly, we notice that there is not even a
suggestion in cross examination of PW1 that he was
not conducting a tea shop, albeit PW1 referring to
his shop on several occasions in chief and cross
examinations. Secondly, the focus of investigation
was on the murder alleged to have been committed
by the accused. A roving investigation as to
whether PW1 had licence to conduct a tea shop was
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
not contemplated. Thirdly, lack of licence will
not automatically establish that PW1 was not
conducting a tea shop. It is one thing to say that
conducting such a business without licence is
illegal. However, the fact remains that in rustic
village areas, several such shops are being
conducted either without licence or contrary to
such licence issued. Therefore, disbelieving PW1,
or for that matter his presence at the place of
occurrence, for want of licence to conduct a tea
shop cannot be countenanced.
PW1 not questioned on the same day by the I.O:-
60. The finding in paragraph No.39 against the
investigating officer as regards the abscondance
of PW1 for a day is also far-fetched and
unacceptable. According to the learned Sessions
Judge, PW21 (I.O), who came to know about the
presence of PW1, should have immediately
questioned PW1, for which no attempt was made by
PW21. The learned Sessions Judge would cast an
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
aspersion/motive in PW21 not doing so, since it
was the necessity of the investigating team to
bring in evidence in the form of recovery under
Section 27 of the Evidence Act, for which, there
would not have been any scope at all, if PW1 was
questioned on the very date of incident. It would
appear that the Judge was completely predisposed
against the prosecution version, probably with a
predetermined fixation on the innocence of the
accused.
PW2 disbelieved:-
61. The learned Sessions Judge found that there
existed ample circumstances for PW2 to entertain a
doubt regarding the culpability of the accused,
but PW2 did little to guard the accused, who was
made to accompany the deceased to the hospital. We
cannot but find that the learned Sessions Judge
had gone completely off tangent in choosing to
disbelieve PW2 on that premise.
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
PW3 disbelived:-
62. In the case of PW3, the court below went
completely wrong in finding fault with prosecution
for not examining the mother of PW3 (cited as
CW7). It is never the mandate of law to examine
more than one witness to drive home the same
point, for, it is not the quantum, but quality of
evidence, that matters. In this regard, we may
profitably place reliance upon Section 134 of the
Evidence Act. As against PW3 also, the court below
found fault, in having not informed the police
about the incident. The finding of the court below
that PW2 has no case about PW3 informing him that
the accused prevented him from approaching the
deceased is factually incorrect. PW2 spoke in so
many words that a youngster came forward and told
him that when he tried to go near the deceased,
the accused prevented him. PW3 very much spoke
that he attempted to go near the deceased and was
prevented by the accused. There exists no room for
any confusion as regards the versions spoken to by
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
PW2 and PW3.
63. We are of the view that the Sessions Court
grievously erred in disbelieving PW1 for the
reason of Ext.D1 contradiction. Ext.D1 does not
pertain to any material aspect of the crime, but
is only with respect to a former statement that
the deceased overtook PW1 in his motorcycle,
before the accident.
64. Finally, we deprecate the conduct of the
Sessions Judge in choosing to examine MO1 knife in
the open court to ascertain whether there is any
visible blood stain in the same. Ext.P35 report of
the Regional Chemical Laboratory was before the
court. The trial took place after four years from
the date of incident. The Judge is not a forensic
expert to detect blood stains, if any, in a knife.
Therefore, the course adopted can hardly be
approved.
65. A meticulous scan of the impugned judgment
would reveal beyond the cavil of any doubt that
the findings/conclusions arrived at therein are
Crl A (V) 17/19 & Crl.MA 1/2020 & ZCRA 11658/2020
nothing, but based on surmises and conjectures.
Fanciful possibilities have been contemplated by
the Sessions Judge, particularly centered around
the supposed and expected behaviour of witnesses,
who were present in the scene of occurrence, with
the result, the witnesses were disbelieved, quiet
erroneously on account of their alleged deviation
from the so called standard behaviour.
66. In Aiden v. State of Rajasthan [1993 Crl.LJ
2413 (Rajasthan)], it was held that truthfulness
of the statement of wife-the eye witness-could not
be disbelieved simply because her emotional
reaction while witnessing the murder of her
husband was different from what it should have
been, in the opinion of the court.
67. We are fully convinced that the view adopted
by the learned Sessions Judge from the materials
on record to acquit the accused is not one
possible within the framework of law. We also find
that the view expressed by us pointing to guilt of
the accused is the only view legally possible,
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having regard to the evidence on record.
68. In Narinder Singh v. Stae of Punjab [2000
Crl.LJ 3462 (SC)],the Honourable Supreme Court
held that if the evidence of eye witnesses are
rejected, on wrong assumptions, the High Court can
interfere in an appeal against acquittal. In Alla
Rakha K.Mansuri v. State of Gujarat [(2002) 3 SCC
57], the Hon'ble Supreme Court held that where
admissible evidence is ignored and lower court had
acted on surmises, conjectures and assumed
contradictions to acquit the accused, a duty is
cast upon the appellate court to re-appreciate the
evidence. This legal position has been reiterated
in (1) State of UP v. Babu & Others [AIR 2003 SC
3408] (2) Keshavlal v. State of M.P. [AIR 2002 SC
1221] and (3) State of M.P. v. Dharkole @ Govind
Singh & Others [AIR 2005 SC 44].
69. In Alla Rakha (supra), the Hon'ble Supreme
Court held that paramount consideration of the
court should be to avoid miscarriage of justice
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and that a miscarriage of justice, which may arise
from acquittal of guilty, is no less than from the
conviction of an innocent. The Hon'ble Supreme
Court went on to hold that a probable view is one
which is based on legal and admissible evidence;
only because the accused has been acquitted by the
trial court, cannot be made a basis to urge that
the High Court under all circumstances should not
disturb such a finding.
70. We find that the judgment impugned is built up
on the foundation of surmises and conjectures and,
therefore, squarely in the teeth of the judgments
above referred, wherefore, it is our duty to set
right the wrong, by setting aside the impugned
judgment. The judgment impugned is so manifestly
wrong leading to miscarriage of justice as held in
Arun Kumar and Alla Rakha K.Mansuri (both supra).
71. We, therefore, set aside the impugned judgment
of acquittal. We find that the accused is guilty
of having caused the death of the deceased,
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attracting the offence under Section 300 of the
Penal Code. The overt acts are done with
sufficient pre-meditation, with the definite
intention of causing death of the deceased. The
accused, severed and rammed the car deliberately
on the motor cycle of the deceased, coming from
the opposite direction, where after, the deceased
was stabbed thrice on his neck by MO1 knife. The
situs and number of injuries would leave no doubt,
whatsoever, as regards the definite and clear
intention of the accused to cause death of the
deceased. The accused is driven by a definite
intention to finish off the deceased; though there
is discernible no apparent motive. We find that
the offence attracted is nothing but the one under
Section 300, since the act does not fall under any
of the exceptions to the offence under Section
300.
72. As regards punishment, Section 302 prescribes
punishment with death or imprisonment for life and
fine. We are not of the opinion that the facts of
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the instant case would fit into the category of
the rarest of the rare cases, warranting death
penalty. Although the alternate punishment for
offence under Section 302 of the Penal Code, i.e.
imprisonment for life, is the minimum punishment
prescribed, we chose to hear the first
respondent/accused, specifically on the sentence
component of fine. Hence, we directed the first
respondent/accused to be present before us today
and he is accordingly present.
73. Heard the accused and his counsel on the
question of sentence. Learned counsel for the
accused submitted that accused is undergoing
treatment for bipolar disorder and, therefore,
necessary direction be issued for continuance of
treatment in prison. The accused pleaded that he
has no job, as of now, except selling ornamental
fish, which would fetch only little income. His
mother is no more and the accused is presently
residing with his aged father. The accused would
request us to take a lenient view in the matter of
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sentence.
74. Having heard the accused and his counsel in
the context of sentence, we cannot but note that
the offence committed is one under Section 302 of
the Penal Code, exterminating the life of the
deceased. An unmerited sympathy on the accused in
the sentence component of fine will, therefore, be
inappropriate.
75. We, therefore, impose the punishment of
imprisonment for life, as also, a fine of
Rs.2,00,000/- (Rupees two lakhs only) to be paid
to the wife and children of the deceased as
compensation. In case of default of payment of
fine, the accused shall undergo rigorous
imprisonment for a further period of two years,
which punishment will be consecutive and not
concurrent, if remission is granted. The accused
shall be entitled to set off the period of
incarceration undergone by him, pending trial. The
material objects shall be disposed of in
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accordance with law.
76. Crl. Appeal (V) No.17/2019 is allowed as
above. In as much as the judgment under challenge
is set aside, we find no necessity to condone the
filing delay in the appeal preferred by the State.
Crl.M.A.No.1 of 2020 and Unnumbered Crl.Appeal of
2020 are, therefore, closed.
77. In view of our comments on Section 122 of the
Evidence Act in paragraph nos.31, 32 and 33 above,
we direct the Registry to send a copy of this
judgment to 1). the Secretary, Ministry of Law and
Justice, Government of India and 2). the Member
Secretary, Law Commission of India.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
C.JAYACHANDRAN
JUDGE
jg
