IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1566 of 2005()
1. JOHNY, AGED 49 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.JOHNSON ABRAHAM
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :14/10/2009
O R D E R
K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
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Crl. Appeal No. 1566 of 2005
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Dated this the 14th day of October, 2009.
JUDGMENT
Bhavadasan, J,
The accused was prosecuted for the offence
punishable under Section 302 of the Indian Penal Code. He
was found guilty. He was therefore convicted and sentenced to
undergo imprisonment for life and also directed to pay fine of
Rs.25,000/-, in default of which he has to suffer simple
imprisonment for a further period of five months.
2. P.W.1, a mason by profession, and the cousin of
th deceased, on 25.2.2001 at 12.30 p.m. was on his way to the
market to purchase vegetables. On the way he met his sister,
namely, Philomina. They were going along the Kuttampuzha
bridge. They heard a loud noise from behind. They turned
round and found the accused stabbing the deceased with M.O.1
knife repeatedly. P.W.1 and others removed the deceased to
the hospital. On reaching the hospital the doctor pronounced
Crl.A.1566/2005. 2
him dead and Ext.P4 is the relevant certificate. By about 2.30 p.m.
on the same day, P.W.1 laid Ext.P1 first information statement.
Ext.P1 first information statement was recorded by P.W.15, who
registered Crime No.14 of 2001 as per Ext.P11 FIR. Investigation
was taken over by P.W.16. On 25.2.2001 at about 3.45 p.m. he
conducted inquest over the body of deceased and prepared Ext.P2
inquest report. He had M.Os. 5 and 6 seized. The body was sent
for postmortem examination. P.W.10, the Forensic Surgeon
conducted autopsy and furnished Ext.P6 report. P.W.16 prepared
Ext.P3 scene mahazar and had M.O.1 chopper seized as per Ext.P7
mahazar. As per Ext.P10 he seized M.O.4 Lunki said to have been
worn by the accused at the time of the incident. He arrested the
accused. He had also seized a complaint given by the deceased
against the accused on the very same day morning as per Ext.P12
mahazar. He had the articles seized during the investigation sent
for chemical examination and Ext.P13 is the chemical analysis
Crl.A.1566/2005. 3
report. The accused was produced before court on 9.3.2001 and he
was remanded to judicial custody. P.W.16 had recorded the
statements of witnesses and completed major portion of the
investigation. P.W.17 is his successor in office who completed
the investigation and laid charge before court.
3. JFCM, Kothamangalam took cognizance of the
offence. On appearance of the accused before the said court, all
legal formalities were complied with. The learned Magistrate
complied with all the necessary legal formalities. The learned
Magistrate found that the case is one exclusively triable by a court
of Sessions and therefore committed the case to Sessions Court,
Ernakulam under Section 209 Criminal Procedure Code. On
receipt of the records, the said court made over the case to First
Additional Sessions Court, Ernakulam for trial and disposal.
4. The said court, on receipt of records, issued
summons to the accused and he entered appearance. After hearing
Crl.A.1566/2005. 4
both sides, charge was framed for the offence punishable under
Section 302 Indian Penal Code. It was read over to the accused
and the accused pleaded not guilty and claimed to be tried.
Prosecution had therefore P.Ws. 1 to 17 examined Exts.P1 to P15
(a) marked. M.Os. 1 to 8 were identified and marked. After the
close of the prosecution evidence, the accused was questioned
under Section 313 of the Criminal Procedure Code. He denied all
the incriminating circumstances brought out against him and
maintained that he is innocent. In his defence he stated that he
was innocent and he had nothing to do with the incident. He
denied that his clothes have been seized. He said that he had no ill
feeling towards the deceased. On 23.2.2001 at about 5.30 P.M. he
had hired the vehicle of one Kurian Joy and had gone to Kannur
for selling the pine apple grown by him. When he returned in the
evening on the date of the incident, he came to know about the
same. He enquired about the reason for the incident. When he
Crl.A.1566/2005. 5
enquired about the incident he came to know that there was some
money transaction between the deceased and the person who
committed the offence. On the next day he participated in the
funeral ceremony of the deceased. On the next day also, as usual,
he went to Cherthala for his business purpose. He would depose
that Korakkal Jose was enimical towards him for the reason that he
had spoken against him in the Panchayat election. Jose holds
considerable influence in the area. It is out of that vengeance he
had been falsely implicated.
5. Finding that the accused could not be acquitted
under Section 232 Criminal Procedure Code, he was asked to enter
on his defence. He had D.Ws. 1 to 3 examined and Exts.D1 to D4
(a) marked. On a consideration of the materials before it, the court
below found that the prosecution had established the case against
the accused and accordingly conviction and sentence as already
mentioned followed. The said conviction and sentence are assailed
Crl.A.1566/2005. 6
in this appeal.
6. The question that arises for consideration is whether
the court below was justified in holding that the accused was guilty
of the offence punishable under Section 302 Indian Penal Code.
7. The prosecution case in brief is that on the date of
the incident in the afternoon while P.W.1 and his sister were going
along, they happened to see the accused stabbing the deceased. It
appears that the prosecution case is that there was a quarrel
between them on the previous day and that resulted in the incident.
In order to prove the incident the prosecution mainly relies on the
evidence of P.Ws.1 to 4 and 6. Even though P.W.12 was examined
by the prosecution, he turned hostile. The court below found the
evidence adduced by the prosecution sufficient to hold the
accused guilty.
8. Learned counsel appearing for the accused pointed
out that the court below has not appreciated the evidence in the
Crl.A.1566/2005. 7
proper perspective and that has resulted in miscarriage of justice.
It was pointed out that there is intrinsic evidence to show that
P.W.1 was not at the place of the incident at the relevant time and
that he had come much later. The glaring inconsistencies and
contradictions in the evidence of P.Ws. 2 and 3 make them
unworthy of credit. According to the learned counsel, the deceased
had four other brothers by name Korakkal Jose, Korakkal Johny,
Korakkal Paily and Korakkal Devassykutty. Sijo is the son of
Korakkal Paily. According to the counsel, in order to save Sijo,
who had committed the murder, the accused had been falsely
implicated. Korakkal family is very powerful and influential.
None in the locality dared to speak against them. Even going by
the prosecution case, according to the learned counsel, the police
station is only 300 meters away from the place of incident and the
injured had, while being taken to the hospital, to pass by the police
station. It is inconceivable that, till P.W.1 laid First Information
Crl.A.1566/2005. 8
Station at 3.30 p.m., the police had no information about the
incident. It is highly improbable also. P.W.1’s evidence is that his
clothes were drenched with blood, but for the reasons best known
to the investigating agency they did not feel it necessary to seize
those clothes. P.W.1 had stated that Sijo is very dear to him and he
would do anything for him. Relying on the sketch prepared by the
Village Officer, it was pointed out that the location of the place of
occurrence was unreliable and that cuts the root of the prosecution
case. The sketch has not been properly drawn. The result
according to the learned counsel is that the prosecution has not
succeeded in establishing the case against the accused.
9. According to the learned Public Prosecutor, the court
below has taken pains to meticulously analyse the evidence. The
court below found the evidence adduced sufficient enough and
entered a finding that the offence had been established. Drawing
attention of this court to the fact that the plea of the accused was
Crl.A.1566/2005. 9
infact one of alibi and that he had examined three witnesses in that
regard, learned Public Prosecutor stressed that the accused had not
succeeded in establishing the plea of alibi. That is a strong
circumstance which goes against the accused. The claim of the
accused is that he was nowhere at the place of the incident and it
was Sijo who had done the mischief. Learned Public Prosecutor
pointed out that his plea of alibi was put forward for the first time
at the time of being questioned under Section 313 Cr.P.C.. There
was no suggestion regarding the defence set up by him to any of
the prosecution witnesses at all. True,, P.W.12 has chosen to
betray the prosecution and has chosen to support the accused. But
a close reading of the evidence shows that his evidence is not
worthy of credit. Learned Public Prosecutor pointed out that one
cannot omit to note that the incident has taken place in broad day
light in a public road and it is inconceivable that anyone could
have been falsely implicated. Learned Public Prosecutor also
Crl.A.1566/2005. 10
pointed out that the reasons given for falsely implicating the
accused are too feeble. According to the accused, he had spoken
ill about the deceased in a Panchayat election. It was after
considering all these aspects, the court below has come to the
conclusion that the offence had been established. The learned
Public Prosecutor pointed out that no grounds are made out to
interfere with the conviction and sentence awarded by the court
below.
10. One of the principal witness for the prosecution is
P.W.1. He, as already noticed, is related to the deceased. He
would say that on the date of the incident he was on his way to
purchase vegetables from the market. On the way, he was joined
by his sister. While going along the bridge, they happened to hear
a sound from behind. They turned round. They saw the accused
repeatedly stabbing the deceased. He would depose that P.W.12
wrested the weapon from the hands of the accused. P.W.1 claims
Crl.A.1566/2005. 11
to have rushed to the aid of the deceased. The deceased was
removed to the hospital in a jeep. As soon as they reached the
hospital, Doctor pronounced him dead. He would then depose that
he had then gone to the police station and laid Ext.P1 First
Information Statement.
11. P.W.2 is an eye wintess to the incident. So also
P.W.3. They are husband and wife. They run a tea shop. The tea
shop is situated in Arekkar Junction. They open the tea shop at 6
a.m.. The date of the incident was a Sunday. On that day also the
tea shop was open. P.W.2 would say that on that day at about 10
-10.30 a.m. deceased Baby had come along with his child to the tea
shop and had food from there. He waited for his wife to return
from the Church. While so, these witnesses would depose that the
accused came near the tea shop and there was an exchange of
words between them regrading the money to be paid to the
accused. P.W.2 would say that as the accused was leaving the
Crl.A.1566/2005. 12
place, the deceased challenged him. Infuriated, according to this
witness, the accused took out a knife from the big shopper bag he
was carrying and stabbed the deceased. The incident happened
near the Kuttampuzha bridge. He says that he and his wife, namely
P.W.3 came out of their tea shop and they saw the accused
repeatedly stabbing the deceased. Seeing the incident, the child of
the deceased cried and ran out. The child was taken inside the
shop by P.W.3. As soon as she entered the tea shop she became
unconscious. By that time, people had gathered at the spot and
P.W.12 had wrested the knife from the accused. A jeep was
brought and the deceased was removed to the hospital. The
accused managed to escape. He later came to know that the
injured was no more.
12. P.W.3, as already stated, is the wife of P.W.2. She
also speaks about the incident. She too speaks about P.W.12
having wrested the knife from the hands of the accused. She took
Crl.A.1566/2005. 13
the child of Baby (deceased) inside the tea shop and she became
unconscious soon thereafter. She speaks about the quarrel between
the deceased and the accused with reference to the money to be
paid for having purchased meat on the previous day.
13. P.W.4 runs a stationary shop. He says that the
accused happened to pass by his shop and when he asked about the
quarrel between the deceased and the accused on the previous day,
the accused told him that the deceased had given a complaint
against him to the police and that he would do away with him.
Soon thereafter this witness claims that he heard a loud noise from
near the bridge and when he reached the spot he found P.W.12
wresting the knife from the accused. He would depose that the
deceased was removed to the hospital.
14. P.W.5 says that hearing the noise when he reached
the spot, he found the deceased lying there with the stab injuries.
He along with others removed the deceased to the hospital.
Crl.A.1566/2005. 14
15. P.W.6 too says about having seen P.W.12 wresting
knife from the accused and the deceased being taken to the
hospital. He would also depose that he saw the accused running
away from the place.
16. P.W.7, the witness speaks about the quarrel on the
previous day of the incident between the accused and the deceased.
He would say that he heard the accused threatening the deceased.
17. These are the main items of evidence. It is not in
dispute that Baby died due to stab injuries. This would be clear
from the evidence of P.W.10 and Ext.P6 postmortem certificate.
P.W.10 has categorically stated that the death was caused due to
injury No.4, which was on the chest of the deceased. He speaks
about the other injuries also found on the body of the deceased. He
is of the opinion that injury No.4 could have been caused by using
M.O.1.
Crl.A.1566/2005. 15
18. Before going into the other questions, one
contention raised by the learned counsel for the appellant may be
noticed. It was contended that the weapon of the nature like M.O.1
could not have been caused the injuries made mention of in Ext.P6
certificate taken by P.W.10. According to learned counsel, the
weapon has a slight hook at the tip and that could not cause the
nature of injuries said to have been inflicted on the deceased.
19. There is no merit in the contention of the learned
counsel for the appellant. The Doctor has given details regarding
the injuries and also the fact that those injuries could have been
caused by a weapon like M.O.1. He was subjected to extensive
cross examination, but he stood his ground and reiterated that the
injuries could be caused by a weapon like M.O.1. In fact there was
no suggestion to the doctor that any other weapon had been used.
The Forensic Surgeon has given detailed explanation regarding the
injuries and how it could have been caused with M.O.1 weapon.
Crl.A.1566/2005. 16
20. There may be some substance in the contention
raised by the learned counsel for the appellant that P.W.1 was not
at the place of occurrence at the relevant time. His evidence had
already been referred to. When one recalls the evidence of P.Ws. 2
and 3, they say about Baby, the deceased, having come to the tea
shop with his child. One shall not forget the fact that P.W.1 is
closely related to the deceased. The child was aged only about two
and a half years. After the accused had quarreled with the
deceased and was about to leave the place, he was challenged by
the deceased and thereafter the unfortunate incident took place.
The defence has a case that P.W.1 came at a much later stage in
fact at the time of removing the deceased to the hospital, and that
he was nowhere at the scene of occurrence at the relevant time.
21. Going by the evidence of P.W.1, he happened to
meet his sister Philomina and they were walking along the bridge
that then the unfortunate incident occurred. They happened to see
Crl.A.1566/2005. 17
the accused stabbing the deceased and they rushed to the aid of the
deceased. P.Ws. 2 and 3 had categorically stated that seeing the
attack on his father the child ran out crying ‘Papa Papa’.
Obviously, if P.W.1 and his sister were present at the place, they
could not have omitted to notice the child. P.W.1 does not say
anything about the presence of the child at all. The further
evidence of P.Ws. 2 and 3 are to the effect that the child was taken
back to the tea shop by P.W.3 and soon thereafter P.W.3 became
unconscious. Even assuming that P.W.1 was immediately
concerned with rescuing the victim, and taking him to the hospital,
his sister could not have omitted to take care of the child. This
glaring omission in the evidence of P.W.1 cause some doubt about
his presence at the place of the incident at the relevant time.
22. There is yet another glaring aspect. P.W.1 claims
to have rushed to the aid of the victim. At that time, even
according to this witness, the victim was bleeding profusely. He
Crl.A.1566/2005. 18
claims to have carried the deceased to the autorickshaw along with
two others and he also claims that his clothes were drenched in
blood. It is rather strange to note that his clothes were not seized
by the investigating officer for the reasons best known to them. It
is also interesting to note that going by the evidence of P.W.1, after
taking the victim to the hospital, when they were told that the
victim is no more, P.W.1 claims to have directly gone to the police
station. If as a matter of fact, what P.W.1 says is true, obviously
his clothes would have been seized by the police. However, even
going by the defence version, he joined the others at the time when
the victim was being taken to the hospital. That appears to be more
probable. It cannot be said that the evidence of P.W.1 is above
board. His claim that he had actually seen the stabbing of the
victim by the accused is open to doubt.
23. However, the evidence of P.Ws. 2 and 3 stand on a
different footing. They are two independent and natural witnesses.
Crl.A.1566/2005. 19
Of course there are some inconsistencies and minor contradictions
in their evidence. But they are of trivial in nature.
24. In the decision reported in Kulesh Mondal v. State
of West Bengal (AIR 2007 SC 3228), it was held as follows:
“To the same effect is the decision in State of
Punjab v. Jagir Singh (IR 1973 SC 2407) and Lehna v.
State of Haryana (2002 (3) SCC 76). As observed by
this court in State of Rajasthan v. Smt.Kalki and Anr.
(AIR 1981 SC 1390), normal discrepancies in evidence
are those which are due to normal errors of
observation, normal errors of memory due to lapse of
time, due to mental disposition such as shock ad horror
at the time of occurrence and those are always there,
however, honest and truthful a witness may be.
Material discrepancies are those which are not normal,
and not expected of a normal person. Courts have to
label the category to which a discrepancy may be
categorized. While normal discrepancies do not
corrode the credibility of a party’s case, material
discrepancies do so. These aspects were highlighted in
Crl.A.1566/2005. 20
Krishna Mochi and Ors. v. State of Bihar etc (JT 2002
(4) SC 186).”
25. In the decision reported in Ramappa Halappa
Pujar v. State of Karnataka ((2009) 1 SCC (Crl) 250) it was
observed that when the witnesses deposed after several years of the
incident, it is only natural that minor inconsistencies and
contradictions creep into their evidence. But unless they are
shown to be material and unless they affect the prosecution, they
cannot be given undue importance.
26. It may be that the witnesses, when they depose after
a long time may omit to speak about the minor details and there
may be some inconsistencies and contradictions in their evidence.
But these inconsistencies and contradictions by themselves are
insufficient to make them unworthy of credit. Irrelevant details
which do not in any way affect the credibility of the witnesses
cannot be labelled as omissions and contradictions.
Crl.A.1566/2005. 21
27. It is the quality of the evidence one has to look at
and not the quantity. Unless there are compelling circumstances, it
may not be possible to reject the evidence of a witness based on
minor contradictions and inconsistencies. The witnesses cannot be
expected to retain photographic memory of the incident and
moreover the power of reception, retention and reproduction
varies from person to person. The attempt is to see if there is a ring
of truth in the evidence and whether there is any reason to falsely
implicate the accused.
28. One cannot omit to note that P.Ws. 2 and 3 are
natural witnesses. It is not disputed that they were running the tea
shop very near to the place of incident. Of course, there is a
suggestion that they could not have seen the incident from the tea
shop. But evidence shows that they could have seen the incident
and also that they had come out hearing the sounds. Reliance
placed on the scene plan is not of much consequence. It is in tune
Crl.A.1566/2005. 22
with the mahazar prepared by the investigating officer and it does
not suffer from any infirmities as pointed out by the learned
counsel for the appellant. It is significant to notice that there is no
suggestion to the witnesses who supported the prosecution case
that it was not the accused who had committed the act, but Sijo.
No suggestion is made to them as to why they should falsely
implicate the accused. The story given at the time of questioning
under Section 313 Cr.P.C. is clearly an after thought and has no
substance at all.
29. There is nothing to indicate that even assuming that
the evidence of P.W.1 is not fully acceptable, P.Ws. 2 to 7 had any
reason to speak against the accused. They are natural witnesses.
Of course the defence has a case that Korakkal family terrorise the
area and all people are afraid of them. If that be true, the accused
would not have got persons to speak in his favour. The above
claim is too fragile. There is no basis for it at all.
Crl.A.1566/2005. 23
30. The argument that the knife, namely, M.O. 1 could
not have caused the injuries found on the body of Baby had already
been adverted to. It is found that the injury shown in the inquest
report and the postmortem report differ and that causes suspicion
about the case. One must remember here that the inquest is
prepared by a police officer, while autopsy is conducted by an
experienced Forensic Surgeon. Merely because the injuries
mentioned in these two reports do not tally, it does not mean that
the prosecution case has to fail.
31. One cannot remain blind to the defence set up,
which is a plea of alibi. It is well settled that when a plea of alibi is
raised, the burden is on the accused to prove the same. (See the
decisions reported in Brijlala Pd. Sinha v. State of Bihar (AIR
1998 SC 2443) and Akbar Sheikh v. State of W.B. ( (2009) 7
SCC 415).
Crl.A.1566/2005. 24
32. Apart from that, the case set up by D.Ws. 1 to 3 is
only developed at the stage of being questioned under Section 313
Cr.P.C., and therefore their evidence is unconvincing also. D.W.1
has stated that the actual stabbing was done by Sijo. He also
speaks about the role played by P.W.12. One may not forget the
fact that P.W.12 also supports the accused in this regard to the
extent that he had wrested the knife from Sijo. It is clear from a
reading of the evidences of D.W.1 that he had cooked up a story to
help the accused.
33. D.W.2 would say that on the relevant day his
vehicle was hired by the accused to transport pine apple. He lends
his vehicle for hire. If that be true, the vehicle should have a trip
sheet and it will indicate the true state of affairs. The defence has
not chosen to have the trip sheet produced to establish his claim.
Therefore the evidences of these witnesses are of no purpose.
34. D.W.3 gives an entirely different story.
Crl.A.1566/2005. 25
35. As already noticed, the case put forward by these
witnesses are not even suggested to the prosecution witnesses.
36. It may be noticed that going by the records, Ext.P1
FIS was drawn up by about 2.30 p.m. and Ext.P2 inquest report
was drawn up by 3.45 p.m. on the date of incident itself. Both
Ext.P1 and Ext.P2 report were produced before the court on
26.2.2001, that is the next day of the incident. It is significant to
notice that the inquest report contains the crime number also.
There is no suggestion either to P.W.15 or to P.W.16 that the first
information statement and the inquest report were later drawn up
and ante-dated and ante-timed. One may recall that the incident
took place at about 12.45 p.m. on 25.2.2001. Therefore these two
crucial documents came into existence soon after the incident. It
cannot be believed that within such a short span the police could
manipulate, fabricate or concoct a story so as to falsely implicate
the accused. Apart from the above fact, it is too difficult to believe
Crl.A.1566/2005. 26
that in an incident which happened in broad day light in a
significant place of the locality, the police would have ventured
and agreed to falsely implicate a person.
37. The court below has considered the evidence in
great detail and has found the defence case to be untenable. On a
consideration of the materials before it, the court below came to the
conclusion that the prosecution has succeeded in establishing the
case beyond reasonable doubt.
38. It was finally contended that after the initial
quarrel, the accused had left the place and the deceased had
followed him and exhorted him. It was sought to be made out that
it was the deceased who was the aggressor.
39. The above attempt is baseless. Even assuming that
the deceased might have provoked the accused, the fact is that the
deceased carried no weapons with him. The number of injuries
inflicted on the deceased, weapon used, the nature of injuries
Crl.A.1566/2005. 27
inflicted and the manner in which they were inflicted and the fatal
effect of the injuries produced would deprive of the accused of any
benefit of doubt.
The court below is perfectly justified in coming to the
conclusion that the prosecution has proved the case against the
accused. The result is that this appeal is without merits and it is
liable to be dismissed. We do so confirming the conviction and
sentence passed by the court below.
K. Balakrishnan Nair,
Judge
P. Bhavadasan,
Judge
sb.