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Thursday, July 28, 2016

conviction basing on 161 statement is erroneous in law= placing reliance upon their statements under Section 161 [who turned hostile ] by the High Court to record the finding of conviction is erroneous in law. = The material evidence on record does not reveal anything which incriminates both the appellants. Further, the depositions of parents of the deceased i.e., PW-13 and PW-14 in no way implicate both the appellants as the offenders. Rest of the prosecution witnesses have turned hostile and have not supported the prosecution story on material facts to show that both the appellants are involved in the crime as alleged against them.In the instant case, the prosecution has failed to prove the guilt of both the appellants beyond reasonable doubt. Though the prosecution witnesses Nos. 1,2,3,4,5,7,8,9,10,11,12,18,29,20,21 and 23 have turned hostile, their alleged statements made to the police under Section 161 of CrPC were not confronted to them and marked as exhibits and further the I.O. has not spoken in his evidence anything about the alleged statements of the above hostile witnesses recorded under Section 161 as held by this Court in three Judge Bench in the case of V.K. Mishra v. State of Uttarakhand[10]. Thus, placing reliance upon their statements under Section 161 by the High Court to record the finding of conviction is erroneous in law. The High Court has failed to appreciate the same in arriving at different conclusion other than the Trial Court in exercise of its appellate jurisdiction. Therefore, the impugned judgment and order passed by the High Court must be set aside by this Court in exercise of its appellate jurisdiction. For the reasons stated supra, this criminal appeal is allowed. The impugned judgment and order dated 09.06.2009 passed by the High Court of Kerala at Ernakulam in Criminal appeal No. 1898 of 2005 is set aside and the judgment and order of acquittal passed by the Trial Court is restored. Both the accused-appellants are acquitted of all the charges levelled against them.

                               NON-REPORTABLE
                         IN THE SUPREME COURT OF INDIA
                        CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 952  OF 2010


BABY @ SEBASTIAN & ANR.             ………APPELLANTS

                                     Vs.

CIRCLE INSPECTOR OF POLICE, ADIMALY  ……RESPONDENT



                               J U D G M E N T


V.GOPALA GOWDA, J.

  This criminal appeal is directed against the impugned judgment  and  order
dated 09.06.2009 in Crl. Appeal No. 1898 of 2005 passed by  the  High  Court
of Kerala at Ernakulam whereby it  has  allowed  the  said  criminal  appeal
filed by the respondent herein, by setting  aside  the  order  of  acquittal
passed by the Court of the Addl. Sessions  Judge,  Thodupuzha,  in  Sessions
Case No.461 of 2001. The High Court convicted both the  appellants  for  the
offence punishable under Section 302 read with Section 34  of  Indian  Penal
Code, 1860 (for short ‘IPC’) and has sentenced them to undergo  imprisonment
for life with a fine of Rs.25,000/- each. In  default  of  payment  of  fine
they shall suffer rigorous imprisonment for two years each.



Brief facts of the case are stated hereunder to appreciate the  rival  legal
contentions urged on behalf of the parties:



    The case of the prosecution is that one  young  man  named  Jojo  (since
deceased),  an  auto  rickshaw  driver  by  profession,  was   in   romantic
relationship  with  a  minor  girl  named  Smitha  (PW-2)  daughter  of  the
appellant no.1. The relationship between the two was vehemently  opposed  by
the girl’s family. The appellant no.1 completely ruled out  the  possibility
of marriage between the two and allegedly extended threats  to  Jojo.  After
having found the strong opposition from the girl’s  family  with  regard  to
their marriage, Jojo and Smitha (PW-2) planned to  elope  on  19.07.2000  at
about  11  pm.  Accordingly,  both  started   at   about   11.45   pm   from
Mammattikkanam Kara. Both the appellants sensed their plan and with  a  view
to foil the same, they followed and intercepted Jojo and Smitha (PW-2).



Thereafter, allegedly the appellant no.1 caught hold of  the  neck  of  Jojo
and pushed him down into the paddy field  which  was  filled  with  mud  and
water. He sat on his body and the appellant no.2 caught  hold  of  his  neck
from back side and immersed his face in the muddy  water  again  and  again,
thereby strangulated and killed him. Manoj (PW-1)  residing  a  little  away
from the scene  of  occurrence  informed  the  matter  to  one  Ravi.  Ravi,
Secretary of the local Gram Panchayat in turn informed the matter to  Idukki
police Station, Rajakkad.



Soon after, the Sub-Inspector (PW-31) reached the place  of  occurrence  and
recorded the statement  of  PW-1.  Thereafter,  FIR  No.  102  of  2000  was
registered  against  three  persons  viz.,  appellant  nos.1,  2   and   one
Thressiamma for offence punishable under Section 302 read  with  Section  34
of IPC.



However, Thressiamma was discharged by the learned  Sessions  Judge  of  all
the charges against her. The trial court commenced the  trial  against  both
the appellants. During trial,  the  prosecution  examined  32  witnesses  to
prove beyond reasonable doubt the  guilt  of  both  the  appellants  on  the
charges. The Trial Court after proper appreciation of evidence on record  by
its judgment and order dated 13.11.2003 acquitted  both  the  appellants  of
all the charges levelled against them  holding  that  the  prosecution  case
against the appellants/accused persons is not free from reasonable doubt.



  Aggrieved  by  the  decision  of  the  Trial  Court  the  respondent-State
approached the High Court of Kerala at Ernakulam by filing  Criminal  Appeal
No. 1898 of 2005. The High Court by its judgment and order dated  09.06.2009
allowed the criminal appeal by setting aside the acquittal order  passed  by
the Trial Court.  The High Court has convicted  both  the  appellants  under
Section 302 read with Section 34  of  IPC  and  sentenced  them  to  undergo
imprisonment for life with a fine of Rs. 25,000/- each. Hence, this appeal.



Mr. M. Karpaga Vinayagam, the learned senior counsel on behalf of  both  the
appellants contended that the High Court has erred in  convicting  both  the
appellants  without  adhering  to  the  well  settled  proposition  of   law
regarding appeal against acquittal that the order of acquittal shall not  be
generally interfered  with  by  the  appellate  court  in  exercise  of  its
jurisdiction because of the presumption of  innocence  of  the  accused  who
were acquitted by the Trial Court by recording cogent and valid  reasons  on
proper appreciation of evidence on record. It was further submitted  by  him
that the above said legal principle has to  be  followed  by  the  appellate
court considering the appeal against the judgment  of  acquittal,  the  same
can be interfered with  only  when  there  are  compelling  and  substantial
reasons namely,  the  findings  and  reasons  recorded  on  the  charge  are
patently  either  perverse  or  erroneous  in  law  in  order   to   prevent
miscarriage of justice in the case. In the present  case,  the  Trial  Court
after appreciating the evidence on record has  rightly  acquitted  both  the
appellants from  the  charges.  There  exists  no  legal  infirmity  in  the
judgment passed by the Trial Court. However, the High  Court  has  proceeded
on surmises and conjectures and reversed  the  order  of  acquittal  without
examining the correctness of the findings and reasons recorded by the  Trial
Court on proper appreciation of evidence on record. Therefore, he  submitted
that  the  impugned  judgment  and  order  passed  by  the  High  Court   is
unsustainable in law and deserves  to  be  set  aside  in  the  interest  of
justice by this Court in exercise of its appellate jurisdiction.



It was further contended by the learned senior counsel that the  High  Court
has grossly erred in convicting both the appellants on the  assumption  that
the presence of the appellants at the scene of occurrence as stated by  PW-6
has not been disowned by him and it stands  on  a  better  footing.  It  was
further submitted by him that PW-1 has not seen the  incident.  In  fact  in
his statement recorded under Section 164 of CrPC before  the  court  he  has
denied having said to the police that he saw the  appellants  or  any  other
person at the place of occurrence. The prosecution  has  not  been  able  to
discredit  the  version  of  this   witness   and   his   testimony   stands
uncontroverted. In such circumstances the High Court has  erred  in  holding
that the testimony of PW-1 should be disbelieved as he was  trying  to  help
the appellants.



The learned senior counsel further contended that the High Court has  failed
to  appreciate  the  fact  that  the  testimony   of   PW-6   is   full   of
contradictions. It was submitted that the  Trial  Court  has  rightly  taken
note of the fact that PW-6 after witnessing the incident did not inform  the
same to anybody neither to the police nor  his  family  members  rather  the
next morning he reached the place of  occurrence  and  on  police  enquiring
with the people gathered there as to whether anyone witnessed the  incident,
he ventured and told  the  police.  The  conduct  of  this  witness  in  not
disclosing the fact that he has witnessed the  incident  to  anybody  either
immediately or within reasonable time from the time of occurrence  of  crime
casts serious suspicion on his veracity and reliability of his evidence.  In
this regard the learned senior counsel placed reliance upon the decision  of
this Court in the case of Chanan Singh v. State of Haryana[1].



It was further submitted by the learned senior counsel that the  High  Court
has erred by placing reliance on the testimony of PW-6 without  appreciating
the testimony of PW-5 which  further  casts  a  shadow  of  doubt  upon  the
evidence of PW-6 whose evidence is  accepted  by  the  appellate  court  for
reversing the order of acquittal of both the appellants passed by the  Trial
Court.



It was further contended by the learned senior counsel that the  High  Court
has failed to look into the suspicious circumstances  surrounding  the  case
of the prosecution. As per the statement of the father of the deceased  (PW-
13), he left his house with two bags, a gold chain  and  Rs.  25,000/-  with
him. It is the case of  the  prosecution  that  all  the  said  things  went
missing and nothing has been recovered. The possibility  of  involvement  of
some third person committing the crime for money  and  valuables  cannot  be
ruled out. Therefore, the appellant  court  should  have  given  benefit  of
doubt to both the appellants in the  absence  of  any  concrete  and  cogent
evidence to prove their involvement in the crime.



It was further submitted by the learned senior counsel that the  High  Court
has not noted the contradictions between the statements of PWs-13 and 16  as
to the threat alleged to have  been  issued  by  the  appellants  and  their
family to the deceased. The High Court  should  have  appreciated  the  fact
that PW-13 being the father of the deceased is  an  interested  witness  and
could not have been relied  upon  by  the  High  Court  in  the  absence  of
corroboration by other evidence  on  record.  In  fact,  PW-16,  who  is  an
impartial witness has contradicted the statement  of  PW-13  by  stating  on
oath that no such threats were ever issued  by  the  appellants  or  any  of
their family members.



The learned senior counsel  further  contended  that  the  Trial  Court  has
rightly taken note of the facts narrated by  PW-17  that  he  had  left  the
locality along with  his  family  after  the  occurrence  and  shifting  his
residence to a place 80 kms away. It was further submitted by him  that  the
aforesaid strange behaviour on the part of PW-17 has  to  be  read  with  in
conjunction with the fact that two bags carried by the deceased  along  with
a gold chain and Rs. 25,000/- have gone missing and has not  been  recovered
as stated by the police. PW-17 did not report the occurrence to  anyone  and
absconded from the place of incident. His  statement  was  recorded  by  the
police after 6 days of the incident. The aforesaid  fact  should  have  been
considered  by  the  High  Court  with  seriousness  and  carefully   before
accepting his evidence. The evidence of PW-17 is  completely  unreliable  to
record the finding of the guilt of both the appellants.



It was further contended by the learned senior counsel that in  the  present
case, PWs 1,2,3,4,5,7,8,9,10,11,12,18,29,20,21 and 23 did  not  support  the
prosecution case and they were declared as hostile witnesses. Therefore,  it
was highly inappropriate on the part of the High Court to convict  both  the
appellants on the basis of statements given by such aforesaid  witnesses  to
the police under Section 161 of CrPC alone  in  the  absence  of  any  other
corroborative evidence placed on record by the prosecution. In  this  regard
reliance is placed upon the decision of this Court in  Ramswaroop  v.  State
of Rajasthan[2] and Rajendra Singh v. State of U.P.[3].



In his further submissions the learned senior counsel assailed the  fact  of
the presence of injuries on the person  of  PW-2  and  appellant  No.2  upon
which reliance is placed by the High  Court  in  reversing  the  finding  of
acquittal and convicting both the appellants in the manner that  the  nature
of the wound on the person of PW-2 was incised wound  caused  by  the  sharp
object and it is the specific case  of  PW-2  that  she  sustained  injuries
while she was cutting grass. This statement of the  above  witness  has  not
been demolished by the prosecution. Moreover, there is no recovery  of  such
sharp edged weapon from the place of occurrence or from  the  house  of  the
appellants. It is  not  even  the  case  of  the  prosecution  that  similar
injuries were found on the person of the deceased. As regards  the  injuries
sustained to appellant no.2, the Court has not even gone into the nature  of
injuries on his person.  He  further  submitted  that  the  High  Court  has
grossly erred in relying upon  the  version  of  the  prosecution  that  the
injuries could have been caused in the course of fight between the  deceased
and the accused persons.



The learned senior counsel further contended  that  the  High  Court  should
have re-appreciated the case of prosecution that  the  Christmas  cards  and
other letters alleged to have been written by PW-2 to  Jojo  have  not  been
proved to have been sent by PW-2 as the same were never sent to  handwriting
expert for examination to prove the fact that it was in the  handwriting  of
PW-2. In this regard he  further  submitted  that  in  the  absence  of  any
evidence to show that the alleged letters and cards were  sent  by  PW-2  to
the deceased-Jojo, the High Court has erred in relying on the same  to  hold
that both PW-2 and the deceased were in a romantic relationship and  terming
the same as the reason for  the  incident  involving  both  the  appellants.




While concluding his contentions the learned senior counsel  submitted  that
in convicting both the appellants the High Court  has  ignored  the  settled
principles of criminal law that every person  is  presumed  to  be  innocent
until proved otherwise and the standard of proof in criminal law  is  ‘proof
beyond reasonable doubt’, in the guise of protecting the credibility of  the
judicial system. It has based its reasoning only to ensure that  the  people
in whom the investigating agencies has reposed faith should not  be  allowed
to turn back at the crucial moment. The High Court  has  relied  upon  those
evidences which are completely unreliable. Therefore, the impugned  judgment
and order deserves to be set aside in the interest of justice by this  Court
in exercise of its appellate jurisdiction.



Per Contra, Ms. Liz Mathew, the learned counsel on behalf of the  respondent
sought to justify the impugned judgment and order passed by the  High  Court
on the ground that the same is well founded and is not vitiated in law.   It
was submitted by her that no interference  of  this  Court  is  required  in
exercise of its appellate jurisdiction.



It was contended by her that the High  Court  has  rightly  appreciated  the
evidence of PW-6 in proper perspective by holding that  PW-6  took  time  to
disclose the incident to police for the reason that he  was  a  stranger  to
the locality. The observation of the High Court is only  an  enunciation  of
normal behaviour of any reasonable person which does not require  any  other
evidence.



With regard to  the  identification  of  the  appellants  by  PW-6,  it  was
submitted by the learned counsel that  dock  identification  is  substantive
evidence.  This  witness  has   clearly   identified   the   appellants   as
perpetrators of the crime. It was further contended that since this  is  not
a case where the witness could only have a fleeting glance  of  the  accused
persons, the absence of a test identification  parade  does  not  shake  the
prosecution case in any manner. It was  further  submitted  by  the  learned
counsel that apart from some trifling contradictions that  may  have  arisen
on account of the long lapse of time, no material contradictions  have  been
brought from this witness to shake the prosecution case despite having  been
cross-examined by  the  defence  counsel  at  length.  The  learned  counsel
further submitted that when the incident is taking place in a public  place,
persons passing by are the best  witnesses  and  therefore,  their  evidence
could not be discarded. In  this  regard  the  learned  counsel  has  placed
reliance  upon  the  decision  of  this  Court   in   Raju   v.   State   of
Maharashtra[4], para 6 of which reads thus:

“In the absence of anything elicited in the  cross-examination  to  indicate
that  these  two  witnesses  were  interested  in  the  prosecution  of  the
appellants we are in full agreement with the  above-quoted  observations  of
the High Court. The other criticism levelled by the trial  court  that  they
were chance witnesses  is  also  wholly  unmerited  for  in  respect  of  an
incident that takes place on a public road,  the  passers-by  would  be  the
best witnesses. We have, therefore, no hesitation  in  concluding  that  the
claim of the above two witnesses that they had seen the incident  cannot  be
disputed at all.”


With regard to the credibility of evidence of PW-17,  it  was  submitted  by
the learned counsel that PW-17 after witnessing the  incident  narrated  the
same to a neighbour. A perusal of the testimony of this witness  reveals  no
concoction in his version and therefore he is completely  reliable.  It  was
further submitted that the reason for this witness  to  leave  the  locality
along with his family members and shifting his residence to a place  80  kms
away from the place of occurrence has been duly  explained  by  him  in  his
evidence. Being a tenant in the premises belonging  to  the  appellants,  he
moved out of fear as the appellants had threatened to kill him. He  appeared
before the police soon after the arrest of the appellants and  narrated  the
incident.



It was further contended by the learned counsel  that  the  non-recovery  of
the baggage, gold chain and Rs. 25,000/- which  the  deceased  was  carrying
can at best be stated to be a defect in the investigation. There is  nothing
on record to  suggest  that  PW-17  has  any  connection  with  the  missing
articles.



The learned counsel further contended that the appellants were named in  all
contemporaneous documents prepared after the occurrence, especially the  FIR
which was lodged soon after the occurrence. It is settled principle  of  law
that prompt lodging of FIR precludes  the  possibility  of  deliberation  to
falsely  implicate  any  person.  A  prompt  FIR  in  a  criminal  case  and
particularly in a murder case is a vital and  valuable  piece  of  evidence.
The learned counsel has placed reliance upon the decision of this  Court  in
Meharaj Singh v. State of Uttar Pradesh[5].



While concluding her contentions the  learned  counsel  submitted  that  the
statement of PW-6 is duly corroborated by statement of PW-17 and  admissible
portions of testimonies of other witnesses  and  medical  evidence  in  this
regard. There is no infirmity with the impugned judgment  and  order  passed
by the High Court which requires interference by this Court.



We have heard both the parties  at  length  and  have  given  our  conscious
thought to the material evidence on record and the  relevant  provisions  of
law. The question for our consideration is whether the prosecution  evidence
establishes beyond reasonable doubt the commission of  the  offence  by  the
accused-appellants under Section 302 read with Section 34 of IPC.



This Court in the case of Bindeshwari Prasad  Singh  alias  B.P.  Singh  and
Ors. v. State of Bihar and Anr.[6] has held that in the absence of  manifest
illegality  and  perversity  in  the  trial  court’s  findings  and  reasons
resulting in grave miscarriage of justice, the High Court is  not  justified
in interfering with the  trial  court’s  order  in  exercise  of  revisional
jurisdiction. The relevant para 13 reads thus:
“13. The instant case is not one where any such illegality was committed  by
the trial court. In the  absence  of  any  legal  infirmity  either  in  the
procedure or in the conduct of the trial, there  was  no  justification  for
the High Court to interfere in exercise of its revisional  jurisdiction.  It
has repeatedly been held that the High Court should  not  re-appreciate  the
evidence to reach a finding different from the trial court. In  the  absence
of manifest illegality resulting in grave miscarriage of  justice,  exercise
of revisional jurisdiction in such cases is not warranted.”
             (emphasis supplied by this Court)

Further, this Court in Sunil Kumar Sambu Dayal Gupta  &  Anr.  v.  State  of
Maharashtra[7] has held that presumption of innocence is a human right.  The
appellate court should not interfere with the acquittal order passed by  the
trial court merely because two views are  possible  in  a  given  case.  The
relevant paras 38 and 39 read thus:
“38. It is a well-established principle  of  law,  consistently  re-iterated
and followed by this  Court  is  that  while  dealing  with  a  judgment  of
acquittal, an appellate court must consider the entire evidence  on  record,
so as to arrive at a finding as to whether the  views  of  the  trial  Court
were perverse or otherwise unsustainable. Even though  the  appellate  court
is entitled to consider, whether in arriving  at  a  finding  of  fact,  the
trial Court had placed the burden of proof incorrectly  or  failed  to  take
into  consideration  any  admissible  evidence   and/or   had   taken   into
consideration evidence brought on record  contrary  to  law;  the  appellate
court should not ordinarily set aside a judgment  of  acquittal  in  a  case
where two views are possible, though the view of the appellate court may  be
the more probable one. The trial court which has  the  benefit  of  watching
the demeanor of the witnesses is the best judge of the  credibility  of  the
witnesses.

39. Every accused is presumed to be innocent unless  his  guilt  is  proved.
The presumption of innocence is a human  right.  Subject  to  the  statutory
exceptions, the said principle forms the basis of criminal jurisprudence  in
India. The nature of the offence, its seriousness  and  gravity  has  to  be
taken into consideration. The  appellate  court  should  bear  in  mind  the
presumption of innocence  of  the  accused,  and  further,  that  the  trial
court's acquittal bolsters the presumption of  his  innocence.  Interference
with the decision of the Trial Court in a casual or  cavalier  manner  where
the other view is possible should be avoided, unless there are good  reasons
for such interference.”
            (emphasis supplied by this Court)

The said view is further reiterated by this Court in the case of Rathinam  @
Rathinam V. State of Tamil Nadu & Anr.[8] The relevant para 30 reads thus:

“30. It is now beyond dispute that interference in such an appeal should  be
made sparingly in a situation where the  findings  of  the  High  Court  are
perverse and not possible on the evidence and if two views are possible  the
one leading to  acquittal  should  not  be  disturbed.  The  presumption  of
innocence which is  always  raised  in  favour  of  an  accused  is  further
strengthened by an acquittal and bolsters the  claim  of  the  accused.  The
aforesaid time-honoured  principles  have  been  recently  set  out  in  the
judgment of this Court in Arulvelu and Anr. v. State....”
        (emphasis supplied by this Court)


In the instant case, the High Court is not justified in holding PW-6 and PW-
17 are as reliable witnesses after re-appreciating the  evidence  on  record
when  there  is  absence  of  manifest  illegality  and  perversity  in  the
acquittal order passed by the Trial Court.


A careful reading of the evidence on record clearly highlights the  material
contradictions and discrepancies in the prosecution evidence especially  the
testimonies of Mathai (PW-6) and Eldose (PW-17) upon which  strong  reliance
has been placed by the High Court  in  convicting  both  the  appellants  by
setting aside the acquittal order  passed  by  the  Trial  Court.  From  the
testimony of PW-6 one thing is  clear  that  he  is  a  chance  witness  who
happened to have witnessed the incident by chance.  It  is  a  well  settled
legal principle that the evidence of a  chance  witness  cannot  be  brushed
aside simply because he is a chance witness but his presence  at  the  place
of occurrence must be satisfactorily explained by the prosecution so  as  to
make his testimony free from doubt and thus, reliable . This  Court  in  the
case of Jarnail Singh v. State of Punjab[9] has  elaborately  explained  the
reliability of a chance witness as under:

“21. In Sachchey Lal Tiwari v. State of U.P. this  Court  while  considering
the evidentiary value of the chance witness in a case of  murder  which  had
taken place in a street and passerby had deposed that he had  witnessed  the
incident, observed as under:
If the offence is committed in a street only passer-by will be the  witness.
His evidence cannot be brushed aside lightly or  viewed  with  suspicion  on
the ground that he was a mere chance witness.  However,  there  must  be  an
explanation for his presence there.
The  Court  further  explained  that  the  expression  “chance  witness”  is
borrowed from countries where every man's home is considered his castle  and
every one must have an explanation for his presence elsewhere or in  another
man's castle. It is quite unsuitable an expression in a country  like  India
where people are less formal and more casual, at any rate in the  matter  of
explaining their presence.

22. The evidence of a chance witness requires  a  very  cautious  and  close
scrutiny and a chance witness must adequately explain his  presence  at  the
place of occurrence (Satbir v. Surat  Singh, Harjinder  Singh  v.  State  of
Gujarat, Acharaparambath Pradeepan and Anr. v. State  of  Kerala and Sarvesh
Narain Shukla v.  Daroga  Singh).  Deposition  of  a  chance  witness  whose
presence at the place of  incident  remains  doubtful  should  be  discarded
(vide Shankarlal v. State of Rajasthan).”
            (emphasis supplied by this Court)



However, in the instant case, the presence of PW-6,  a  chance  witness,  at
the place of occurrence is not free from doubt. PW-6 in  his  testimony  has
stated that he along with PW-5 while proceeding from Rajakkad  to  Kuthungal
at about 11.45 pm  witnessed  the  occurrence.  He  has  accounted  for  his
presence at the place of occurrence by stating thus:



“PW-5 Thomas asked me a loan of Rs. 500/-. He requested for money  5/6  days
back. I had agreed to pay him the money, as  soon  as  I  get  it  from  the
contractor. Had not stated, when would I get the money. After asking me  for
a loan, he reminded me about it twice. Had told Thomas that  we  would  meet
at Rajakkad. I went to Rajakkad, reaching there at 6.00 am along  with  PW-5
I went to  the  contractor  K.S’s  office.  The  contractor  is  K.S.  Kunju
Mohammed. Had met PW-5 Thomas that day. That was at Rajakkad. We sat at  the
room of K.S. for an hour. We spent there from 6.00pm  to  7.00pm.  Since  we
could not meet K.S we went to the cinema at the nearby  theatre.  After  the
show was over, we again went to the room of K.S. K.S could not  be  met.  We
took food from fast food (thattukada) shop. After that when  we  were  going
home, we witnessed incident.”





However, PW-5 has not supported this version of PW-6. PW-5 in his  testimony
has stated that he did not witness anything. Further, the deposition of  PW-
6 is full of contradictions. On the one hand he says:

“...Two persons were standing in the field. One  among  them  was  searching
for something. After a while a head came out  of  slush.  A  person  wearing
shirt again pushed the head into the slush forcibly.  A-1  standing  in  the
dock was the person without shirt, and A-2 is the  person  who  was  wearing
the shirt who pushed the head into the slush) is in the dock.”



On the other hand, while deposing he says:

“...I had no personal knowledge when I left as to who attacked whom.”





Further, the conduct of PW-6  in  not  disclosing  the  incident  either  to
police or to anyone in the village  creates  a  suspicion  and  renders  his
version of the incident is doubtful. PW-6 according to  his  testimony  left
the place of occurrence quietly and did not inform  about  the  incident  to
anyone. The relevant portion from his testimony reads thus:



“...I did not tell anybody at anybody at the house what all I  saw  then.  I
did not make any noise (cry out); nor did I attempt  to  save  the  drowning
person. Before telling the police, I had  not  spoken  about  the  event  to
anybody else. That was on the next day at the scene of occurrence...

    xx                xx              xx

...Except for  the  statement  to  the  police,  I  am  speaking  about  the
occurrence only before the court now.  If  I  were  not  questioned  by  the
police, I would not have spoken about the occurrence which I saw to  anybody
else. I went to the scene of occurrence and stood there.  That  was  on  the
next day. Police invited those who had seen the occurrence to  come  forward
and state the facts. At this juncture, I  went  forward  and  explained  the
facts.”



From the aforesaid  evidence,  it  is  clear  that  PW-6  has  acted  in  an
unnatural manner. In this backdrop this Court is of  the  opinion  that  the
learned senior counsel for both the appellants has rightly pointed out  that
this unusual behaviour on the part of PW-6 in not telling anyone  about  the
incident of murder which he allegedly witnessed certainly  casts  a  serious
doubt upon his testimony. Therefore, the Trial Court  has  rightly  rejected
the evidence of PW-6 stating that the same is highly unreliable  as  it  has
failed to inspire confidence with regard to the  presence  of  PW-6  at  the
place of occurrence at the time of incident.  Hence,  the  Trial  Court  has
rightly held thus:



“6....His conduct in immediately not disclosing the fact that  he  witnessed
the murder to anybody casts a suspicion on his veracity...According to  PW-6
he had walked 3.5 kms at about midnight and reached the place of  occurrence
when the incident was happening and without making any  attempt  to  prevent
the murder he just proceeded to his house still 3.5 kms  away  by  walk.  In
the considered opinion of this court the above evidence  of  PW-6  does  not
inspire confidence. It will be highly unsafe to rely upon  the  evidence  of
PW-6.”





As far as evidence of PW-17 is concerned, it  is  clear  from  the  material
placed on record that he is not an eye-witness to the  incident.  The  Trial
Court has rightly dealt with the evidence of PW-17 as under:



“7. PW 17 is the other witness who has given incriminating evidence  against
the accused. According to him he had resided at the vicinity  of  the  place
of occurrence at the relevant period. On the date of  occurrence  namely  on
19.7.00 at about 10 pm the deceased came to his house  with  two  bags.  The
deceased told him that he was going to live together with his  lover  Smitha
(PW2). At about 11 pm he went away with the two  bags.  After  sometime  the
deceased and PW2 Smitha came there. Then he and his wife were standing  near
the way near their house as directed by the deceased. The deceased  and  PW2
bid farewell and went away and PW 17 and wife returned to  their  house  and
slept. After about one hour somebody knocked on the  door  and  PW17  opened
the door and saw the discharged accused. Thressiamma who is  the  mother  of
accused No.1 there. Then  Thressiama  told  him  that  they  were  going  to
hospital with Shajan (A2). She requested PW 17 to come  to  her  house.  She
further told that their child had  eloped  with  one  person  and  they  had
killed him. PW 17 went to the house  of  the  accused.  Then  he  saw  PW  2
(Smitha) standing there weeping. There was mud  on  her  body.  Smitha  told
that Jojo Chettayi was killed by father and brother. PW 17 immediately  went
to the paddy field and saw the body of the deceased. He again  went  to  the
house of the accused. Then the  discharged  accused  Thressiamma  gave  some
money to accused No. 1. After getting the money  the  accused  persons  went
away.



8.    The above is the circumstantial evidence furnished by  PW  17  Eldhose
against  the  accused.  Of  course  the  statements  attributed  by  him  to
Thressiamma and Smitha cannot be covered by  any  section  of  the  Evidence
Act/concerned with the relevancy of facts and so the said statements  cannot
be considered legal evidence. PW 17 was very vehemently  cross  examined  on
behalf of the accused. He admitted that immediately after the occurrence  he
himself and family left the place and  shifted  his  residence  to  a  place
named Thalakode which is 80 kms  away  from  the  place  of  occurrence.  He
admitted that for the next 5 days of the occurrence  himself  and  his  wife
were not present in the house. Immediately after that they shifted  resident
to the place 80 kms away from the place of  occurrence.  The  suggestion  by
the  defence  to  this  witness  is  that  the  deceased  had  two  bags   a
considerable amount of money and some gold ornaments were with  him  and  PW
17 is involved in the death of the deceased. Of  course  PW  17  denied  the
said suggestion. From the evidence of PWs 13  to  15  who  are  the  father,
mother and brother of the deceased it is clear that the  deceased  had  some
ornaments and a considerable amount of money with  him.  He  had  bags  also
with  him.  The  bags  and  the  money  have  not  been  recovered  by   the
investigating agency. The prosecution has no case that the  accused  persons
murdered the deceased for taking these valuable. The strange conduct  of  PW
17 in leaving the locality immediately after  the  occurrence  and  shifting
his residence from there to  far  away  place  80  kms  from  the  place  of
occurrence is suspicious. Of course in re-examination  the  prosecution  has
made desperate attempt to bring out from him that as the accused  threatened
him he shifted his residence. But he has not stated such  a  very  important
fact before police and  the  said  omission  obviously  amounts  a  material
contradicting and so above version of threat  from  the  accused  cannot  be
relied upon. As already mentioned above the conduct of PW 17 in  immediately
going into a sort of abscondence for the ensuing 5 day  of  the  murder  and
there after shifting his residence to a distance  of  80kms  appears  to  be
very suspicious. Further  admittedly  the  relatives  of  accused  etc.  are
residing in the neighbourhood.  PW 17 admitted that he did not report  these
facts to any of them. Considering all these facts  and  circumstances   this
court is of the view that  it  will  be  highly   unsafe  to  act  upon  the
evidence against the accused furnished by PW 17 Eldhose.”

                  (emphasis laid by this Court)



Further the fact that the age of injuries present on the person of PW-2  and
appellant no.2 matches with the approximate  time  of  incident  in  no  way
carves out an active role on the part of both the appellants  in  commission
of murder of Jojo.



The material evidence on record does not reveal anything which  incriminates
both the appellants. Further, the depositions of  parents  of  the  deceased
i.e., PW-13 and PW-14 in  no  way  implicate  both  the  appellants  as  the
offenders. Rest of the prosecution witnesses have turned  hostile  and  have
not supported the prosecution story on material facts to show that both  the
appellants are involved in the crime as alleged against them.



In the instant case, the prosecution has failed to prove the guilt  of  both
the appellants beyond reasonable doubt.  Though  the  prosecution  witnesses
Nos. 1,2,3,4,5,7,8,9,10,11,12,18,29,20,21 and 23 have turned hostile,  their
alleged statements made to the police under Section 161  of  CrPC  were  not
confronted to them and marked as exhibits  and  further  the  I.O.  has  not
spoken in his evidence anything about the alleged statements  of  the  above
hostile witnesses recorded under Section 161 as held by this Court in  three
Judge Bench in the case of  V.K. Mishra v. State of  Uttarakhand[10].  Thus,
placing reliance upon their statements under Section 161 by the  High  Court
to record the finding of conviction is erroneous in law. The High Court  has
failed to appreciate the same     in arriving at different conclusion  other
than the Trial Court in exercise of its appellate  jurisdiction.  Therefore,
the impugned judgment and    order passed by the  High  Court  must
be set aside by this Court in exercise of its appellate jurisdiction.



For the reasons stated supra, this criminal appeal is allowed. The  impugned
judgment and order dated 09.06.2009 passed by the High Court  of  Kerala  at
Ernakulam in Criminal appeal No. 1898 of 2005 is set aside and the  judgment
and order of acquittal passed by the  Trial  Court  is  restored.  Both  the
accused-appellants are acquitted of all the charges levelled  against  them.
Since both the appellants are in jail, the jail authorities are directed  to
release them forthwith if they are  not  required  in  connection  with  any
other case.







                                                    …………………………………………………………J.
                                          [V. GOPALA GOWDA]



                                                    …………………………………………………………J.
                                             [R.K. AGRAWAL]

New Delhi,                                                 26th July, 2016


ITEM NO.1A-For Judgment    COURT NO.8            SECTION IIB

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  952/2010
BABY @ SEBASTIAN & ANR.                         Appellant(s)

                                VERSUS

CIRCLE INSPECTOR OF POLICE ADIMALY             Respondent(s)

Date : 26/07/2016 This appeal was called on for  pronouncement  of  JUDGMENT
today.

For Appellant(s)  Mr. M. Karpaga Vinayagam, Sr. Adv.
                        Mrs. V.S. Lakshmi, Adv.
                     Mr. A. Venayagam Balan,Adv.

For Respondent(s)       Mr. C.K. Sasi, Adv.
                     Ms. Liz Mathew,Adv.


      Hon'ble Mr. Justice V.Gopala Gowda  pronounced  the  judgment  of  the
Bench comprising His Lordship and Hon'ble Mr. Justice R.K. Agrawal.
      The appeal is allowed in terms of the signed Non-Reportable judgment.
      Both the accused-appellants are acquitted of all the charges  levelled
against them. Since both the appellants are in jail,  the  jail  authorities
are directed  to  release  them  forthwith  if  they  are  not  required  in
connection with any other case.


       (VINOD KR.JHA)                        (SUMAN JAIN)
         COURT MASTER                        COURT MASTER
    (Signed Non-Reportable judgment is placed on the file)

-----------------------
[1]   [2] (1971) 3 SCC 466
[3]   [4] (2004) 13 SCC 134
[5]   [6] (2007) 7 SCC 378
[7]   [8] (1998) 1 SCC 169
[9]   [10] (1994) 5 SCC 188
[11]  [12] (2002) 6 SCC 650
[13]  [14] (2010) 13 SCC 657
[15]  [16] (2011) 11 SCC 140
[17]  [18] (2009) 9 SCC 719
[19]  [20]  (2015) 9 SCC 588 (paras 16-19)

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