Kerala High Court
P.M.Ummer Farooque vs State Of Kerala on 23 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
CRL.A NO. 793 OF 2012
AGAINST THE JUDGMENT DATED 20.06.2012 IN SC NO.569 OF
2010 OF ADDITIONAL SESSIONS COURT (ADHOC-II), KASARAGODE
APPELLANT/ACCUSED:
P.M.UMMER FAROOQUE
S/O ABDULLA, KOTTAKKUNNU, PALLIKKARA VILLAGE.
BY ADVS.
SRI.M.RAMESH CHANDER
SRI.ANEESH JOSEPH
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
SMT.PUSHPALATHA M.K., SR GP
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 23.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
Crl.Appeal No.793 of 2012
P.G. AJITHKUMAR, J.
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Crl.Appeal No.793 of 2012
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Dated this the 23rd day of May, 2024
JUDGMENT
This is an appeal filed under Section 374(2) of the Code of
Criminal Procedure, 1973 (Code).
2. The appellant assails his conviction for the offence
under Sections 341 and 307 of the Indian Penal Code, 1860
and the consequent sentence. The Additional Sessions Judge
(Adhoc-II), Kasaragod rendered the judgment.
3. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
4. The Circle Inspector of Police, Hosdurg, PW9 filed a
final report with the allegations that on account of the political
enmity and as a sequel to an incident of political clash
occurred at 10.00 a.m. on 10.05.2001, the appellant
wrongfully restrained PW5 Anand at about 4.00 p.m. at the
premises of the polling booth of Kottakunnu U.P.School and
stabbed him using a dagger at his abdomen. PW6 Umesh
intervened and the appellant stabbed him also using the
dagger. Since PW6 warded off the slash, he sustained injuries
at his left wrist and palm.
5. Based on the aforesaid allegations, the trial court
framed charges against the appellant. On the appellant
denying the charge, the prosecution has examined PWs.1 to
10 and proved Exts.P1 to P11. MOs.1 to 3 were identified as
well. After closing the prosecution evidence, the appellant was
questioned under Section 313(1)(b) of the Code. He denied
the incriminating circumstances appeared against him in
evidence. He filed a statement wherein he maintained that it
was, in fact, he who sustained injury in the incident which
occurred at 4.00 p.m. on 10.05.2001 and a crime was
registered in that regard. PWs.5 and 6, in order to get rid of
that prosecution, foisted this case. In order to substantiate
the said contention they have produced Exts.D1, D1(a) and
D2, which are certified copies of F.I.statement, medical record
and F.I.R. in crime No.182 of 2001. The trial court, after
considering the evidence that came on record, found that the
evidence of PWs.5 and 6 was reliable, especially when their
assertions get confirmation from the medical evidence and the
statement in Ext.P2. Accordingly, the trial court found the
appellant guilty by discarding the defence case.
6. The learned counsel for the appellant would submit
that the findings rendered by the trial court are totally wrong
and on an incorrect appreciation of the evidence. The oral
testimonies of PWs.5 and 6 contained so many inconsistencies
and are in conflict with the version in Ext.P2, FI statement.
Although the prosecution has a case that PWs.5 and 6 were
taken first to the Manzoor Hospital, Kanhangad, no record in
that regard is produced. Exts.P4 and P5, which are the wound
certificates issued by PW4 after examination of PWs.5 and 6
at Unity Health Complex, Mangalore do not contain details and
nature of injury sustained by them. No independent witness is
examined by the prosecution, dehors so many onlookers were
present at the time of occurrence and four persons
accompanied the injured to the hospital. Further, the weapon
of offence was not recovered, which disables ascertaining as
to with which weapon the injuries were inflicted. The learned
counsel lastly would submit by relying on the decision of the
Apex Court in Uma Shankar v. State of U.P. [(1979) SCC
(Crl.) 525] that PWs.5 and 6 were having enmity towards
the appellant and therefore their evidence cannot be believed
unless there is sufficient independent corroboration.
7. The learned Public Prosecutor, on the other hand,
would submit that PWs.5 and 6 sustained serious injuries and
had to undergo treatment in the hospital for days together.
PW5 was in hospital for 10 days and PW6 for 5 days. Having
sustained such serious injuries, PWs.5 and 6 would not try to
implicate innocent persons by sparing the actual culprits. It is
further submitted that the evidence of PWs.5 and 6 is cogent
and consistent on the material particulars and their evidence
is true insofar as the act of assault is concerned. Concerning
subsequent deletion of accused Nos.2 and 3, it is submitted
that the version in Ext.P2 can be reconciled as the only
version in it is that three persons came together but the
appellant alone stabbed.
8. PWs.5 and 6 were taken first to the Manzoor
Hospital, Kanhangad and from there to Unity Health Complex,
Mangalore. True, no document regarding their examination
and treatment in Manzoor Hospital is produced. What PW6
stated is that from Manzoor Hospital, they were taken
immediately to the hospital at Mangalore. From Exts.P4 and
P5, the wound certificates issued from Unity Health Complex,
it is evident that the injury sustained by PW5 was serious in
nature and the injury sustained by PW6 requires immediate
expert medical attendance. Following are the injuries
sustained by PWs.5 and 6:
PW5:
Stab injury 6 inches over the left loin with splenic injury and
heamoperitonium.
PW6:
Stab injury 2 x 0.4 cms. over the left wrist and cut injury 6x2
cms. over the left palm with cut flexor tendons and median
nerve.
9. In view of the above facts, it cannot be expected
that the wound certificate was even prepared at the Manzoor
Hospital at Kanhangad. Therefore, non-production of any
medical certificate in regard to the treatment of PWs.5 and 6
at the Manzoor Hospital is not fatal to the prosecution.
10. What PW5 stated is that he cast vote in the
morning and when he along with PW6 was going to the polling
booth at about 4.00 p.m., the appellant came opposite and by
shouting that he would be killed, stabbed him using a dagger.
PW6 intervened and he was also stabbed by the appellant.
The version of PW6 is not quite consistent with that of PW5.
PW6 stated that when he along with PW5 was going to the
booth to cast their votes, the incident occurred. In regard to
the incident said to have occurred at 10 O'clock on the same
day also their versions are not consistent. Apart from such
inter se inconsistencies in the evidence of PWs.5 and 6, the
version of PW5 in court is not in conformity to the narration in
Ext.P2.
11. Every inconsistency in the evidence of a witness
need not result in discarding his evidence. But an
inconsistency that touches the core of the issue may affect his
credibility. The inconsistency with respect to the involvement
of two others in attacking PWs.5 and 6 is not trivial in nature.
Even if it is taken as a mistake of fact, the other
inconsistencies are not able to be reconciled. PW5 deposed
that in the morning the appellant along with one
Madusoodanan and another picked up a quarrel with him in
regard to canvassing of votes. He stated in Ext.P2 that the
appellant along with Madhusoodanan and Mohammed Kunhi
came together and after restraining him, the appellant
stabbed him. That attack was termed as a repercussions of
the morning incident. If so, it cannot be considered that the
involvement of Sri.Madhusoodanan and Sri.Mohammed Kunhi
as stated in Ext.P2 is without understanding the true state of
affairs. The said inconsistency is thus irreconcilable.
12. As stated, the true nature of the injuries sustained
by PWs.5 and 6 is not discernible from Exts.P4 and P5. PW4 is
the Medico-Legal Consultant, who examined PWs.5 and 6 and
issued those certificates. From his oral testimony before the
court also, the nature of injuries, such as dimensions, etc.
cannot be ascertained. The weapon of the offence was not
recovered. Of course, the investigation cannot be found fault
with for non-recovery for, the appellant could not be
apprehended soon after the incident.
13. The assertions of PWs.5 and 6 are that they were
stabbed using a dagger. The case of the appellant is that he
sustained injury by the attack of PWs.5 and 6 and a crime was
registered in that regard as crime No.182 of 2001. PW9, who
laid the final report admitted that the appellant also sustained
injury in the incident and there was a counter case. In such
circumstances, the prosecution was obliged to place before
the court evidence concerning injuries sustained by the
appellant and others in the same incident. But nothing in that
regard has come forth.
14. In the above context, lack of evidence concerning
the nature of injuries sustained by PWs.5 and 6 assumes
much importance. Unless the entire facts are placed before
the court, it is not possible to ascertain how the incident
commenced, who the aggressor was and such other aspects
necessary for deciding criminality of the persons involved.
15. PW5 had one injury and PW6 had two injuries. Both
in its nature, could be caused in the course of a scuffle, as
rightly pointed out by the learned counsel for the appellant.
The injuries of PW6 were found on his left wrist and palm.
Convincing medical evidence is lacking in this case. No
independent witness is available to state about the incident.
That is so when several persons evidently had witnessed the
incident either fully or in part. In such circumstances, the oral
testimonies of PWs.5 and 6, which contain intrinsic
inconsistencies and contradictions are insufficient to establish
the charge. Serious doubt that arises about the genesis of the
incident also remains unanswered.
16. It is the settled law that a witness shall be of
sterling quality for being trusted even in the absence of
corroboration. In Rai Sandeep v. State of NCT of Delhi
[(2012) 8 SCC 21], the Apex court held:
"15. In our considered opinion, the 'sterling witness'
should be of a very high quality and caliber whose version
should, therefore, be unassailable. The Court considering
the version of such witness should be in a position to
accept it for its face value without any hesitation. To test
the quality of such a witness, the status of the witness
would be immaterial and what would be relevant is the
truthfulness of the statement made by such a witness.
What would be more relevant would be the consistency of
the statement right from the starting point till the end,
namely, at the time when the witness makes the initial
statement and ultimately before the Court. It should be
natural and consistent with the case of the prosecution
qua the accused. There should not be any prevarication in
the version of such a witness. The witness should be in a
position to withstand the cross-examination of any length
and strenuous it may be and under no circumstance
should give room for any doubt as to the factum of the
occurrence, the persons involved, as well as, the sequence
of it. Such a version should have co-relation with each and
everyone of other supporting material such as the
recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with
the version of every other witness. It can even be stated
that it should be akin to the test applied in the case of
circumstantial evidence where there should not be any
missing link in the chain of circumstances to hold the
accused guilty of the offence alleged against him. Only if
the version of such a witness qualifies the above test as
well as all other similar such tests to be applied, it can be
held that such a witness can be called as a 'sterling
witness' whose version can be accepted by the Court
without any corroboration and based on which the guilty
can be punished. To be more precise, the version of the
said witness on the core spectrum of the crime should
remain intact while all other attendant materials, namely,
oral, documentary and material objects should match the
said version in material particulars in order to enable the
Court trying the offence to rely on the core version to
sieve the other supporting materials for holding the
offender guilty of the charge alleged."
17. The view in Rai Sandeep was reiterated in Naresh
@ Nehru v. State of Haryana [(2023) 10 SCC 134]. So
much so, when the evidence PWs.5 and 6 inures an
impression that they are not wholly reliable, it is necessary to
look for independent corroboration to enter a conviction.
18. As stated, the discrepancies in the evidence of
PWs.5 and 6 are not trivial, but serious. The first version
regarding the incident in Ext.P2 goes against the evidence
tendered by the prosecution. The medical evidence is
insufficient to render corroboration to the oral evidence of
PWs.5 and 6.
19. It is true that the injuries sustained by PWs.5 and 6
are serious in nature. The Apex Court in Ashish Batham v.
State of Madhya Pradesh [(2002) 7 SCC 317] held that
realities or truth apart, the fundamental and basic
presumption in the administration of criminal law and justice
delivery system is the innocence of the accused. Until the
charges are proved beyond reasonable doubt on the basis of
clear, cogent, credible or unimpeachable evidence, the
question of indicting or punishing an accused does not arise,
merely carried away by heinous nature of the crime or the
gruesome manner in which it was found to have been
committed. Viewed so, there is no sufficient evidence to prove
the charge against the appellant beyond reasonable doubt. As
held in Uma Shankar (supra) if the prosecution evidence
contains doubt or lack of clarity and there exists enmity
between the witness and the indictee, the benefit of doubt
arises thereby has to be given to the accused. Hence, I am of
the view that the findings entered into by the trial court
leading to the conviction of the appellant is unsustainable in
law or on facts. Those findings are liable to be reversed. The
appellant are liable to be found not guilty by extending the
benefit of doubt.
20. Accordingly, the appeal is allowed. The conviction
and sentence as per the judgment dated 20.06.2012 in
S.C.No.569 of 2010 are set aside. The appellant is acquitted
and set at liberty.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
