Kerala High Court
Rajesh Babu @ Kochumon vs State Of Kerala on 3 July, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 3RD DAY OF JULY 2025 / 12TH ASHADHA, 1947
CRL.A NO. 876 OF 2019
AGAINST THE JUDGMENT DATED 03.05.2019 IN SC NO.572 OF
2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
II
APPELLANT/ACCUSED:
RAJESH BABU @ KOCHUMON
AGED 37 YEARS
S/O.NADESAN, OMANALAYAM HOUSE, KIZHAKKEKKARA MURI,
NEDUMPURAM VILLAGE, THIRUVALLA.
BY ADVS.
SRI.T.P.PRADEEP
SRI.S.SREEDEV
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RESPONDENT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA.
ADV. NEEMA T.V., SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
03.07.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Raja Vijayaraghavan, J.
The above appeal is directed against the judgment dated 03.05.2019 in
S.C.No. 572 of 2012 on the file of the Additional Session Judge-II, Pathanamthitta. In
the above case, the appellant was charged for having committed offences punishable
under Section 302 of the IPC. By the impugned judgment, he was found guilty for
the offence under Section 302 of the IPC and was sentenced to undergo
imprisonment for life and to pay a fine of Rs.1,00,000/- with a default clause.
2. Brief Statement of Facts:
2.1 The deceased Pankajakshan Pillai, along with his wife
Anandhavalliamma (PW4) and their younger son Rajesh Babu (PW1), resided
immediately on the eastern side of the house of the appellant in Ward No. 1 of
Nedumpram Village, Thiruvalla. It is the case of the prosecution that the engagement
ceremony of PW1 was scheduled to be held on 26.03.2006. On the previous day in
the evening, the appellant went to the house of the deceased with a bottle of
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alcohol. The deceased, PW1 and the appellant drank alcohol, sitting in the courtyard
of the house. At about 09.00 p.m., the deceased was told by the appellant that he
will ensure that the engagement ceremony of PW1 is not held on 26.03.2006. When
the conversation became loud, Anandhavalliamma (PW4) is alleged to have asked
the appellant to leave the house. The prosecution case is that the appellant, along
with the deceased, proceeded to the house of the appellant and PW4 followed them.
It is alleged that after entering the property of the appellant, he took out a chopper
as well as a knife and inflicted multiple injuries on the body of Pankajakshan Pillai.
The cries of the deceased were overheard by PW4, who rushed towards the gate of
the house of the appellant. She saw the appellant inflicting injuries on her husband.
Her elder sister Rajamma was also with her. She sought help from her son who was
at home. PW1 and PW4 could do nothing but stand outside the gate of the house of
the appellant and witness the deceased being inflicted with injuries by the appellant
by sitting on his torso. It is alleged that the appellant threatened them by
brandishing the weapons in his possession, and they were not permitted to enter the
property. However, they managed to intimate the police, who came to the spot. The
police managed to open the gate after obtaining the keys from the mother of the
appellant.
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2.2 The injured was immediately rushed to the Pushpagiri hospital, but his
life could not be saved.
3. Registration of Crime and Investigation:
3.1. Based on the information furnished by PW1, Crime No. 62 of 2006 was
registered by PW9, the Sub Inspector of Police, Pulikeezhu Police Station. As per the
FI statement, the incident had taken place in the courtyard of the house of the
appellant.
3.2. Thereafter, the investigation was taken over by PW10, the
Sub Inspector of Police. He conducted an inquest over the dead body of the
deceased, which was lying at the Pushpagiri Hospital, and prepared Ext.P3 Inquest
Report. The clothes which were found on the body of the deceased were seized. On
the same day itself, he went to the scene of crime and prepared Ext.P5 scene
mahazar. At the time of preparation of the scene mahazar, trace evidence was
collected from the scene. On the same day itself, a search memo was prepared and
the same was forwarded to the court and search of the house of the appellant was
carried out. No weapons were seized from the house of the appellant. However, a
telephone directory with blood stains was found in the living room and the same was
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seized.
3.3. On 31.03.2006 at about 11 a.m., the appellant was arrested while he
was found standing in the KSRTC bus stand at Thiruvalla. Based on the disclosure
statement made by the appellant, a knife and a chopper, which is allegedly used by
him for the commission of the offence, were seized. Ext.P6(a) is the confession
statement alleged to have been made by the appellant. On the same day itself, a
search was conducted in the house of the sister of the appellant, and the clothes
which were allegedly worn by him at the time of the occurrence were seized. The
appellant was produced before the Doctor, and a certificate was obtained. Insofar as
the injuries found on the body of the accused are concerned, when he was
questioned, he is alleged to have stated that those injuries were sustained when he
had fallen down while escaping from the scene of crime. The seized items were
forwarded to the court as per Ext.P15 series property list. The items were forwarded
to the analyst as per Ext.P16 forwarding note, and Ext.P17 FSL Report was obtained
thereafter. Directions were issued to the Village Officer to prepare the scene plan.
3.4. Certain unpalatable occurrences happened thereafter. PW11 was the
Deputy Superintendent of Police, Thiruvalla, during the period from 01.01.2010 till
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01.07.2011. He stated that on 06.09.2010, PW1 had lodged a complaint before him
wherein it was stated that his father was brutally murdered by the appellant and that
he had not received summons from the court and requested for initiation of
appropriate action. Ext.P2 is the complaint lodged by PW1 before him. On receipt of
the complaint, a detailed enquiry was conducted, and it was found that the final
report was produced by CW17 Reghuvaran Nair on 30.06.2006 before the judicial
Magistrate of the First Class, Thiruvalla. However, on 13.09.2016, the final report was
returned. The returned final report, however, went missing. Finding that there were
serious lapses on the part of the officers of the Pulikeezhu Police Station, he ordered
action against the concerned police officers and a report was filed to that effect.
Immediately thereafter, a request was made before the jurisdictional Magistrate to
conduct further investigation under Section 173(8) of the Code of Criminal
Procedure. He stated that the investigation was conducted and a final report was laid
before the jurisdictional court by CW19.
3.5. PW12 was the DYSP, Thiruvalla, during the period from 30.11.2010
onwards. He stated that on 30.11.2010, he received the order passed by PW11,
ordering him to conduct further investigation in the case at hand. On receipt of the
said order, he forwarded Ext.P19 report to the court concerned and obtained
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sanctions. He questioned the witnesses and recorded their statements, which include
the statements of CW1, CW2, CW8, CW4, CW12, CW9, CW7, CW11, CW3, CW6,
CW10 and CW13. He also questioned CW17 and conducted the investigation. Since
CW17 stated that the file report is not available in the police station, he conducted
the investigation in that particular line as well. After concluding the investigation, the
final report was laid before the court.
4. The Court Charge:
"That you, the accused on 25.03.2006 at about 09.45 p.m., due
to the enmity that the deceased Pankajakshan Pillai has asked you
about your words that you will obstruct the marriage of his son with
the intention to commit the murder of Pankajakshan Pillai and with the
knowledge that your act will cause his death, you have visited his
house with a bottle of liquor and made drank him, and took him and
caused cut injury on the left shoulder and abdomen with a dangerous
chopper and when Pankajakshan Pillai has fallen down, you sat on the
body of Pankajakshan Pillai and stabbed him with a knife causing 27
stabbed injuries on various parts of his body, towards the way and
surroundings of your house by name Omanalayam Veedu, Pulikeezhu
Bridge Junction, Vellore Kadavu Road, Pulikkeezhu, and murdered him
and thereby committed offence U/s. 302 IPC." (sic)
5. To prove the case of the prosecution, as many as 12 witnesses were
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examined as PWs 1 to 13 and through them, 21 documents were exhibited and
marked as Exts. P1 to P21. Material objects were produced and identified as MOs 1
to 6.
6. After the close of the prosecution evidence, the learned Session Judge
put the incriminating materials arising out of the prosecution evidence to the accused
under Section 313(1)(b) of the Code. He maintained that he was innocent. When he
was asked by the learned Session Judge whether he had anything to add, he stated
that the house of the deceased is immediately on the eastern side of his house.
According to him, the relationship between his family and that of the deceased has
not been cordial for years. The engagement of PW1 was scheduled to be held on
26.03.2006. On 25.03.2006 at about 08.00 p.m., there occurred a dispute between
Pankajakshan Pillai and PW1 on one side and the local people on the other side. The
appellant, as well as the father, did not enquire into the fight between the two
groups. After some time, he heard abuses being showered by certain persons who
were standing on the Panchayath road on the southern side of his house. When he,
along with his father, came out and asked them not to shower abuses, the persons
standing outside entered his house and attacked him and his father. He suffered stab
injuries to his body. He was also beaten on his legs with a stick. His father was also
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beaten. Hearing the cries of his mother and wife, local people assembled. Thereafter,
there was a fight between two groups. As there was no light at the place, he was
unable to identify the participants. He, however, heard the voices of the deceased as
well as his son. Immediately, his father called the Pulikeezhu Police Station and
informed them about the fight between the two groups. Later, he came to know that
the police personnel had come to the spot and had taken away the deceased. The
appellant, as well as his father, was admitted to the Pushpagiri Hospital. On
26.03.2006 at about 11.30 a.m., the appellant was arrested from the hospital. He
denied that any weapons were recovered based on the disclosure statement given by
him.
7. Findings of learned Sessions Court:
The learned Session Judge, after careful evaluation of the evidence let in by
the prosecution, came to the conclusion that the evidence let in by the prosecution
by examining PW1 and PW4, was credible and clearly pointed to the guilt of the
appellant. Accordingly, the appellant was found guilty and was convicted as
aforesaid.
8. Contentions advanced by the Appellant:
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Sri. T.P. Pradeep, the learned counsel appearing for the appellant, submitted
that the finding of guilt arrived at by the learned Session Judge cannot be sustained
under law. He would point out that in the case on hand, the Investigating Officer
had concluded the investigation and submitted the final report in the month of
September 2006. The final report was returned by the court as the same was
defective. It was after 5 years, i.e., in 2011, that the final report was laid before the
jurisdictional Court. The learned counsel urged that it was brought out in
cross-examination that PW12 had to question and record the statements of the
witnesses all over again. The statements originally given by the witnesses are
missing. This being the position, it can only be concluded that the version presented
by the prosecution before the court is not the true version of the incident, but a
fabricated version. The learned counsel would then point out that the lapses in the
investigation are fatal in as much as a fair trial has been denied to the appellant. He
has not been served with the original statements recorded by the police and
therefore, he was prevented from cross-examining the witnesses to bring out the
falsity in their statements. The learned counsel would then submit that the evidence
let in by the prosecution by examining PW1 is at variance with the evidence let in by
PW4. The discrepancies have been ignored by the learned Sessions Judge and have
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proceeded to blindly believe their version. He would urge that though the
prosecution would urge that the parties were inimical to each other, the very
prosecution case is that the accused, as well as the deceased, were consuming
alcohol together on the date of the incident. It is urged that the conduct of the
occurrence witnesses in refusing to go to the rescue of the deceased is unnatural,
which would only show that they were not present in or around the scene of the
crime when the incident allegedly took place. The learned counsel would point out
that the non-examination of Anil Kumar, who was allegedly present during the
alcohol party and the witnesses who admittedly were present in and around the
scene of the crime, and the neighbours are fatal. It is submitted that PWs 1 and 4,
being related and thereby interested witnesses, the learned Sessions Judge ought to
have subjected their evidence to detailed scrutiny. It is pointed out that though the
prosecution witnesses state that they could not have entered the house as the gate
was closed, the fact remains that neither in the scene plan nor in the scene mahazar,
there is any reference to a wall separating the property of the appellant from the
southern road, or with the house of the deceased, which according to the
prosecution is immediately on the eastern side. The non-examination of one
Rajamma, who is stated to be the elder sister of PW4, is also highlighted by the
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learned counsel as a serious flaw in the prosecution case. It is submitted that the
recovery of weapons effected at the instance of the appellant could not be relied
upon, as the same was not proved in accordance with law. The report of the
Scientific Expert was also attached, and it is urged that the same did not reveal that
the blood found on the weapons were that of the deceased.
9. Submissions by the learned Public Prosecutor:
Smt. T.V. Neema, the learned Public Prosecutor, would counter the arguments,
and it is submitted that the learned Sessions Judge evaluated the entire evidence
and has come to the finding of guilt. It is urged that the evidence of PWs 1 and 4
were scrutinized by the learned Sessions judge, and he has concluded that minor
omissions and discrepancies brought out by the defence were so trivial that it did not
affect the substratum of the prosecution case. According to the learned counsel, PWs
1 and 4, though related, had absolutely no reason to leave out the actual culprit and
frame the appellant. According to the learned counsel, the recovery of the weapon
and the scientific evidence lend sufficient corroboration to the version of the ocular
witnesses, and there is no reason why this Court should interfere with the same. It is
submitted that though further investigation had to be carried out, as the final report
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went missing, in the course of further investigation, the original documents were
traced out. It is submitted that there is absolutely no reason to interfere with the
findings of the learned Sessions Judge.
10. We have carefully considered the submissions advanced by both sides.
We have also evaluated the entire evidence and have gone through the impugned
judgment.
11. The fact that the death of Pankajakshan Pillai was homicidal in nature
was not disputed by the defence. The stand of the accused while cross-examining
the witnesses and in his 313 Statement, is that there was a fight between two
groups, which took place in the courtyard of his house and several people got
injured, including himself and his father. He denies that he has any role in causing
injuries to the deceased. PW1 stated that his father sustained injuries and was lying
on the property of the appellant. The police took the injured to the Pushpagiri
Hospital, where he was pronounced dead by the doctors. PW8 is the Deputy Police
Surgeon, who conducted the postmortem over the dead body of the deceased. He
noted 29 injuries, some of which were incised wounds and some of which were chop
wounds. The doctor stated that the death was due to multiple stab injuries to the
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chest and abdomen. The injuries have already been mentioned in Ext.P8 postmortem
report. He stated that injury Nos. 5, 26 and 27 could be inflicted with a chopper and
injury Nos. 4 and 15 are chop wounds. All other incised and stab wounds could be
inflicted with a double-edged knife. In view of the overwhelming evidence let in by
the prosecution by examining PW8, without any manner of doubt, be concluded that
the death of the deceased was homicidal.
12. Now we shall evaluate the evidence let in by the prosecution to prove
the charge.
12.1. PW1 is the son of the deceased. He testified that his engagement was
scheduled for 26.03.2006. On 25.03.2006, at approximately 8:00 p.m., the accused
arrived at PW1's residence with a bottle of liquor. PW1, his father, and the accused
consumed alcohol together. PW1 then went to the kitchen. The deceased then
continued drinking with the accused. PW1 subsequently heard the accused raising his
voice. At that time, PW1's mother (PW4) asked the accused to leave. The appellant,
accompanied by the deceased, walked towards his house on the western side
through the southern road. The accused and the deceased opened the gate of their
house and entered his property. PW4 was standing in the courtyard at this point and
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overheard the deceased utter the words "എന്നെ കൊല്ലുന്നേ". She then called PW1,
who, along with his mother and an aunt, proceeded to the residence of the accused,
through the southern road. They found that the gate was locked from the inside.
They flashed the torch towards the inside and found the appellant sitting on the body
of the deceased and inflicting stab injuries repeatedly. PW1 made an attempt to jump
over the gate. The deceased had a chopper and a knife in his possession. He
brandished the same and, in a threatening voice, asked PW1 to come inside. His
mother and aunt pulled him and took him to his house. He went to his house and
rang up the Pulikeezhu Police Station. The police reached the spot and rushed the
injured to the Pushpagiri Hospital, where he was pronounced dead. He stated that
there were boundary disputes between his father and the appellant. Furthermore,
the accused harboured animosity towards the deceased, believing that the deceased
had falsely informed others that the accused had killed his wife. He stated that
Ext.P1 FI Statement was furnished by him to the police. He added that the appellant
had taken his father to his house by repeatedly threatening that he would manage to
block his engagement. According to him, he was prompted to file a complaint before
the Circle Inspector, as nothing transpired after the registration of the crime in the
year 2006. Ext.P2 is the complaint lodged by him. His statement was again recorded
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in the year 2011. He identified MO1, an 'S'-shaped knife allegedly used by the
accused to inflict injuries on the deceased, and also identified MO2, a chopper, as the
weapons used by the appellant. He underwent extensive cross-examination during
which he confirmed the existence of a boundary dispute between his father and the
accused. He stated that there is a boundary wall separating the properties. He stated
that he had furnished a statement to the police at 3:00 a.m. on 23.06.2006.
According to him, Ext.P1 is not the statement furnished by him. He, however, added
that on 23.06.2006 at about 12:15 a.m., he had given a statement and the same was
read over. The facts contained therein are true and correct. In the year 2011, his
statement was recorded by the Circle Inspector. According to him, he had not invited
the appellant to his house. However, when the accused came with a bottle of alcohol,
he and his father made arrangements at home. During the get-together, one Anil
Kumar and another person were also present. They had come after seeing the
appellant. He pleaded ignorance when he asked whether, in his previous statement,
he had mentioned that MO2 Chopper was used by the appellant to inflict injuries. He
admitted that they had finished the entire bottle. He had gone to the spot after his
mother had called him. At that time, his aunt was also with his mother. About 5-8
persons had assembled at the spot. He stated that one Satheesan was residing on
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the southern side, and Rajappan and his family were residing on the western side.
He denied the suggestion that his engagement, which was scheduled to be held on
22.06.2006, got disrupted and being aggrieved, his father had trespassed into the
house of the appellant and attacked the appellant and his father. Hearing the cries of
the appellant and his father, local people had come to his house, and during the
melee which followed, some injuries were sustained by the deceased.
12.2. PW2 is a Panchayat Member, who stood as an attestor to Ext.P3 Inquest.
12.3. PW4 is the wife of the deceased. She deposed that her son's
engagement was scheduled for 26.03.2006, and the accused, who resided in the
neighbouring house, had been invited to the event. On the previous day, i.e.,
25.03.2006, at about 8:00 p.m., the accused arrived at their residence carrying a
bottle of liquor. The deceased, her son (PW1), and the accused consumed alcohol
together and engaged in conversation in the courtyard. Subsequently, upon hearing
raised voices, PW4 intervened and overheard the accused threatening that he would
ensure the engagement did not take place the following day. She asked the accused
to leave the premises, which he did. However, he called out to her husband, who
followed him, and PW4 also followed them. Upon reaching the entrance to the
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accused's property, she saw the accused seize the hand of the deceased and
forcefully pull him through the gate, which was immediately locked from the inside.
The accused then moved slightly northward within his compound along with the
deceased. From her vantage point outside the gate, PW4 witnessed the accused
inflict two cut injuries on the back of her husband's neck. She cried out and rushed
back home to inform her son (PW1). Together, they returned to the gate with a
torchlight. She stated that she saw the accused sitting on the chest of the deceased
and repeatedly stabbing him. Despite their attempts, they were unable to open the
locked gate.PW4 and PW1 then returned and informed the Police. Before the police
arrived, the accused allegedly jumped over the compound gate and fled the scene.
Upon arrival, the police opened the gate after obtaining the keys from the mother of
the accused. The deceased was taken to the hospital by the police, where he was
declared dead. PW4 further testified that there was an ongoing boundary dispute
with the accused, particularly concerning branches of a tree encroaching onto their
property. She added that the accused's wife had died in Delhi, and someone had
informed the accused that the deceased had allegedly spread rumours in the locality
suggesting that the accused was responsible for her death due to physical abuse.
According to PW4, this incident served as the motive for the murder. She affirmed
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that there was functional street lighting as well as illumination in the courtyard of the
accused's house at the relevant time. PW4 identified a knife with an "S" shape and a
chopper when questioned at the Police Station. She also positively identified the
accused as the assailant. PW4 stated that she had recorded statements with the
police in 2006 and again in 2011. During cross-examination, the defence attempted
to cast doubt on the presence of lighting at the scene, but PW4 firmly reiterated that
adequate lighting was indeed available. She admitted that the accused had brought a
bottle of alcohol and that she had provided glasses and water. Her elder sister was
present at the time. Two other individuals, including one Anil Kumar, had also
consumed alcohol with the deceased, PW1, and the accused, but had left early. PW4
further stated that the accused spent a considerable amount of time discussing
various matters that evening. She denied the suggestion made by the defence that
the deceased was a habitual drunkard who frequently caused public nuisance while
intoxicated. She added that she was unaware of any previous criminal cases
registered against her husband at the Pulikeezhu Police Station for such conduct. She
also clarified that no neighbours were present at the scene during the incident. The
learned counsel for the accused reiterated the defence theory, also put to PW1, that
an altercation stemming from the alleged cancellation of the engagement had
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resulted in the injuries sustained by the deceased. However, PW4 unequivocally
denied this version of events.
12.4. PW5 is an attestor to the scene mahazar. PW6 is the attestor to the
recovery mahazar. He stated that MO1 knife and MO2 chopper were recovered from
the property of one Ponnappan, the uncle of the accused. However, in
cross-examination, he admitted that he was not present when the recovery was
effected or when the mahazar was prepared. In that view of the matter, the evidence
tendered by him will not be of much help to the prosecution.
12.5. PW7 is the Village Officer, Nedumpuram Village. He stated that he had
prepared Ext. P7 scene plan.
12.6. Now we come to the evidence of the investigating officers. We have
already narrated the sequence of events that transpired after the completion of the
investigation. As stated earlier, it was PW10, the Circle Inspector of Police Thiruvalla,
who had laid the final report before the Court on 30.06.2006. However, owing to the
failure of the officer to annex the scene plan the same was returned. He stated that
he had not received any information from the Court. PW13, the Station House
Officer, Pulikeezhu Police Station, stated that he submitted Exhibit P25 report before
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Court on 26.09.2018 that the case files in SC No 572/12 were missing. He stated that
the Station used to leak, and to save the documents, the same used to be shifted
from one place to the other. However, he stated that the missing documents were
traced out later. He also stated that except for the additional statement of PW1 and
the statement of CW2, all other documents were intact. In cross-examination he
stated that he has not submitted a report before Court to the effect that the original
charge has been irrecoverably lost. He denied that the 161 statements of the
witnesses were irrecoverably lost. PW10, stated before Court that on 6/9/2010 a
complaint was lodged by PW1 stating that on his enquiry the charge had not been
laid before the jurisdictional Court in connection with the murder of Pankajaskhan
Pillai. In the said circumstances, he handed over investigation to CW17 and
submitted a request to the Magistrate seeking permission to carry out further
investigation. It was PW12 , who carried out the investigation and laid the final
report before the court. He stated that he had questioned the witnesses yet again
and, after completion of investigation, laid the final report before the court. In
cross-examination he stated that the final report was returned originally since the
scene plan and the FSL report were not produced along with the final report. He,
however, stated that the FSL report was traced out later.
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13. Now we shall evaluate the contentions advanced by the learned
counsel.
14. The first contention raised is that the evidence tendered by PW1 and
PW4, the alleged eyewitnesses, suffers from material discrepancies. It is asserted
that they have not presented a truthful version before this Court. According to the
appellant, the original final report filed before the Court had been misplaced, and
PW12 recorded fresh statements from the witnesses five years after the
incident--statements that allegedly diverged from their initial versions. However,
upon a comprehensive evaluation of the evidence presented, we find no merit in the
said contention.
15. In the present case, the First Information Statement (FIS) was
recorded at 12:15 a.m., shortly after the incident that occurred at 9:45 p.m. The
injured victim was immediately taken to Pushpagiri Hospital, and only after he was
declared dead was the statement of PW1 recorded. In that statement, PW1 narrates
the entire chain of events beginning from 8:00 p.m.--the accused arriving at his
house with a bottle of alcohol, their consumption of liquor in the courtyard, the
threats issued by the accused, the intervention by PW4 (his mother), the deceased
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following the accused to his house, and the subsequent fatal assault at the
appellant's property. He also mentioned that his mother and aunt witnessed the
incident but could not intervene, as the appellant had closed the gate and was
brandishing weapons while issuing threats. This statement, which substantially
captures the crux of the prosecution's case, reached the Court at 6:40 p.m. on
26.03.2016. Furthermore, the name of the accused is specifically mentioned in
Column No. XII(a) of the inquest report prepared on the same day. These records
reached the Court without delay.
16. As regards the alleged discrepancies in the testimonies of the
witnesses, an evaluation of the evidence reveals that PW4 had followed her husband
when he accompanied the appellant to the latter's house after the drinking session.
PW4 deposed that she had asked the accused to leave their premises when he began
raising threats under the influence of alcohol. She testified to having witnessed the
accused pulling the deceased into his compound, closing the gate from inside, and
inflicting injuries using MO1 and MO2. Since the gate was locked, she was unable to
intervene and returned to call her son. Fearing for his safety, she and her sister did
not permit PW1 to intervene, as the accused was armed. PW4 further stated that at
the time of the attack, PW1 was at home. PW1, on the other hand, stated that his
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mother called him after hearing his father's cries. On close scrutiny, we find that the
discrepancies pointed out are not substantial enough to discredit their testimony
entirely. The core of the prosecution story remains intact.
17. In Yogesh Singh v. Mahabeer Singh and Others 1, the Apex Court
explained that minor discrepancies are not to be given undue emphasis and the
evidence is to be considered from the point of view of trustworthiness. The test is
whether the same inspires confidence in the mind of the Court. If the evidence is
incredible and cannot be accepted by the test of prudence, then it may create a dent
in the prosecution version. If an omission or discrepancy goes to the root of the
matter and ushers in incongruities, the defence can take advantage of such
inconsistencies. It needs no special emphasis to state that every omission cannot
take place of a material omission and, therefore, minor contradictions,
inconsistencies or insignificant embellishments do not affect the core of the
prosecution case and should not be taken to be a ground to reject the prosecution
evidence. The omission should create a serious doubt about the truthfulness or
creditworthiness of a witness. It is only the serious contradictions and omissions
which materially affect the case of the prosecution but not every contradiction or
2017 (11) SCC 195
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omission.
18. In Bharwada Bhoginbhai Hirjibhai v. State Of Gujarat2, it was
held by the Apex Court that much importance cannot be attached to minor
discrepancies. The reasons are obvious :
(1) By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is
not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so
often has an element of surprised. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What
one may notice, another may not. An object or movement might
emboss its image on one person's mind, whereas it might go
unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and
reproduce the very words used by them or heard by them. They
can only recall the main purport of the conversation. It is
unrealistic to expect a witness to be a human tape-recorder.
1983 SCC 3 217
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(5) In regard to exact time of an incident, or the time duration of an
occurrence, usually, people make their estimates by guess-work
on the spur of the moment at the time of interrogation. And one
cannot expect people to make very precise or reliable estimates
in such matters. Again, it depends on the time-sense of
individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the
sequence of events which takes place in rapid succession or in a
short time span. A witness is liable to get confused, or mixed up
when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the
court atmosphere and the piercing cross-examination made by
counsel and out of nervousness mix up facts, get confused
regarding sequence of events, or fill up details from imagination
on the spur of the moment. The subconscious mind of the
witness sometimes operates on account of the fear of looking
foolish or being disbelieved though the witness is giving a truthful
and honest account of the occurrence witnessed by him --
Perhaps it is a sort of a psychological defence mechanism
activated on the spur of the moment.
Applying the above principles to the evidence of PW4, we find no justification
to reject her testimony. Her account carries an inherent ring of truth and finds
corroboration from the deposition of PW1 as well as other prosecution evidence.
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19. The next contention relates to the delay in the filing of the final report.
It was argued, based on the testimony of PW12, that the statements and records
were reconstructed nearly five years after the occurrence, thereby casting doubt on
their authenticity. However, on examining the records and the testimony of
PW13--the Station House Officer--it is evident that the original documents were
traced out. Furthermore, the prosecution materials such as the FIS, FIR, inquest
report, and mahazars are all original documents and form part of the final report laid
before the Court.
20. The learned counsel appearing for the defence further contended that
the absence of alcohol in the body of the deceased, as per the post-mortem report,
undermines the case of the prosecution. It was argued that, if the deceased had
consumed alcohol, it would have been detected in the stomach contents. We are
unable to accept this submission. While PW1 did state that the appellant brought a
bottle of alcohol which was consumed by all, there is no precise evidence as to how
much the deceased actually drank. It is entirely plausible that he consumed only a
minimal quantity, while the remainder was consumed by the appellant, PW1, and two
of the appellant's friends. The absence of alcohol in the stomach of the deceased
cannot, by itself, lead to the conclusion that the entire prosecution version is
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fabricated. Furthermore, it does not appear from the prosecution records that the
viscera samples were preserved and sent for chemical analysis to detect the
presence of alcohol, poison, or other toxic substances.
21. The learned counsel drew attention to the scene plan and argued that
since no wall separates the southern road from the appellant's property, the narrative
of the prosecution witnesses should be disbelieved. It is urged that if there was no
wall, PW1, PW4, or other residents would have easily intervened. It is true that the
scene plan and mahazar do not explicitly mention a wall separating the appellant's
property with the southern road. However, that omission to mark the wall in the plan
will not negate the occurrence of the incident. In fact, the defence version, as
suggested during cross-examination of prosecution witnesses, was that the deceased
had entered the appellant's house and was involved in an altercation with local
people. Yet, in the statement recorded under Section 313 of the Cr.P.C, the appellant
presents a different version. Furthermore, he does not dispute that the deceased was
found dead in the courtyard of the house of the appellant.
22. We agree with the contention of the learned counsel that the recovery
of weapons at the instance of the appellant has not been proven to the hilt. The
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witnesses to the recovery did not support the case of the prosecution. Insofar as the
recovery of clothes from the house of the sister of the accused is concerned, the
same also cannot be used to connect the accused. However, the above facts will not
in any way undermine the case of the prosecution.
23. We are also not impressed with the contention of the learned counsel
that non-examination of Anil Kumar, who had participated in the drinking party at the
residence as also the neighbours are fatal to the prosecution. The incident had taken
place after 9.45 pm. There is every likelihood that neighbours may keep away from
acts of violence, and it all depends on the community and the attitude of the people.
As held by the Apex Court in Veer Singh And Others v. State Of Uttar Pradesh3,
the legal system lays emphasis on value, weight and quality of evidence rather than
on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses
but quality of their evidence which is important as there is no requirement under the
law of evidence that any particular number of witnesses is to be examined to
prove/disprove a fact. The evidence must be weighed and not counted. It is quality
and not quantity which determines the adequacy of evidence as has been provided
under Section 134 of the Evidence Act. As a general rule the court can and may act
[2014 AIR SC 293]
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on the testimony of a single witness provided he is wholly reliable. (See Vadivelu
Thevar v. The State of Madras4, Kunju Alias Balachandran v. State of T.N5,
Bipin Kumar Mondal v. State Of West Bengal6,Mahesh v. State of M.P7,
Prithipal Singh v. State of Punjab 8, Kishan Chand v. State of Haryana9 and
Gulam Sarbar v. State of Jharkhand10.
24. Having appreciated the entire evidence, we are of the view that the
judgment rendered by the Additional Session Judge-II, Pathanamthitta in S.C.No. 572
of 2012 does not warrant any interference.
This appeal will stand dismissed, confirming the conviction and sentence.
sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
sd/-
K.V.JAYAKUMAR,
JUDGE
1957 AIR SC 614
(2008) 2 SCC 151
(2010) 12 SCC 91
(2011) 9 SCC 626
(2012) 1 SCC 10
(2013) 2 SCC 502
(2014) 3 SCC 401
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PS/2/7/2025
PETITIONER ANNEXURES
ANNEXURE A CERTIFIED COPY OF THE JUDGMENT DATED 3.5.2019
IN S.C.NO.572/2012 OF THE COURT OF THE
ADDITIONAL SESSIONS JUDGE-II, PATHANAMTHITTA.
