PETITIONER: PADMANABHAN VIJAYKUMAR Vs. RESPONDENT: STATE OF KERALA DATE OF JUDGMENT24/02/1993 BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) SINGH N.P. (J) CITATION: 1993 AIR 2641 1994 SCC Supl. (2) 156 JT 1993 Supl. 502 ACT: HEADNOTE: JUDGMENT:
ORDER
1. For an occurrence which took place on May 4, 1981 at
about 10.30 p.m., the appellants were arrayed by the police
and put up for trial in Sessions Case No. 97 of 1981 for
offences under Sections 302, 452 and 34 Indian Penal Code.
In that occurrence, the appellants were alleged by the
prosecution to have trespassed into the house of Chandran at
Muttada and while appellant 1 inflicted chop wounds on the
hands and left leg of Chandran with a chopper, appellant 2
had flashed a torchlight thus aiding the first appellant
while the third appellant stood guard at the entrance of the
house with an iron rod. The deceased Chandran, after the
receipt of injuries, was removed to the hospital by his
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brother PW 1 in the taxi of PW 14 Gopakumar. Chandran
succumbed to the injuries after being admitted in Ward No. 5
of the hospital during the night. The learned Sessions
Judge after appraisal of the evidence and consideration of
the material on the record, acquitted the appellants of all
the charges by its judgment dated June 25, 1982. On an
appeal by the State to the High Court, the judgment of
acquittal was set aside and the appellants were convicted.
The High Court convicted them for an offence under Section
304 Part 1 and sentenced each one of the appellants to
rigorous imprisonment for a term of ten years. They were
also convicted for an offence under Section 450 IPC and
sentenced to suffer rigorous imprisonment for a period of
one year each. Both these sentences were, however, directed
to run concurrently. The appellants are in appeal before
us.
2. The trial court found that the evidence with regard to
the lodging of the first information report both as regards
the time and place was shrouded in mystery. After analysing
the evidence, the trial court observed:
“PW 15 was the then Head Constable of the
Peroorkada Police Station. It was he who
recorded Ext. P-1 F.I. Statement of PW 1 and
registered the case. He would swear that on
May 5, 1981 at 2.30 a.m. he received a phone
message from the Sub-Inspector. Immediately
he went to the Medical College Police Station.
On reaching the Police Station, he came to
understand that a person with cut injuries was
brought from Muttada and that he died at 3
p.m. in the hospital and that his body had
been removed to the mortuary. Then he
proceeded to the mortuary where he saw PW 1
and recorded Ex. P-1 F.I. Statement. After
recording Ex. P-1, he returned to the Police
Station and registered the case after
preparing Ex. P-9 FIR. It is seen from Ex.
P-9 that PW 15 has recorded the full details
about the incident and the names of the
accused as also the nature of the injury
sustained by Chandran. According to PW 15,
all these details were furnished by the Sub-
Inspector of Police over the phone. But when
the Sub-Inspector was examined as PW 16 he
would say that he did not give any such.
information to PW 15. It still remains a
mystery as to who furnished these details to
PW 15. These facts and circumstances show that
the prosecution is suppressing some material
facts from the court and the only possible
inference is that the incident would not have
happened in the manner alleged by the
prosecution. PW 17 is the investigating
officer.”
3. After having doubted the manner in which and the place
at which the first information statement was made, the trial
court also dealt with the evidence of PW 1 and commented
upon the circumstances emerging from his evidence which give
a lie to the prosecution version with regard to the
recording of the first information statement, in the
hospital at the instance of PW 1, the brother of the
deceased. The trial court noticed :
“PW1 would also say that by about 3 o’clock,
immediately before the death of Chandran, a
head constable came there. At that time
Chandran was lying in Ward No. 5. PW 1 told
the head constable about the incident and the
latter reduced the same to writing. PW 1
proved Ex. P-1 as the statement so recorded.
To a leading question put by the Addl. Public
Prosecutor, PW 1 answered that he gave Ex. P-
1 F.I. Statement while Chandran’s body was
lying in the mortuary. In his cross-
examination he would say that when the police
came to the hospital, a mahazar was prepared
on the body of Chandran. When he was asked
whether his statement was recorded after the
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preparation of the said mahazar, he would say
that his statement was recorded only on the
next day after the dead body was brought home
and that the said statement is Ext. P-1.
This version of PW 1 is contrary to the
prosecution case and against his own earlier
version. Again PW 1 would say that he saw the
police for the first time only on the next day
at 10.30 a.m. near the mortuary. This also is
against his own version given in his
examination-in-chief. In the next sentence PW
1 would say that at 3 a.m. he saw a head
constable attached to the Peroorkada Police
Station in Ward No. 5 near the bed of
Chandran. He is definite that he did not do
anything except helping them while they were
in the mortuary. He would categorically state
that even though he mentioned to the head
constable about the incident, he did not do
anything except listening to it. According to
him, his house as well as Chandran’s house are
facing towards east which is also against the
prosecution case. From a reading of his
testimony it is not possible to find that Ext.
P- 1 F.I. Statement was recorded by PW 15 at
the Medical College Hospital on the night of
May 4, 1981 itself or that PW 1 was able to
see and identify the accused at the scene of
occurrence.”
The indictments by the trial court were severe on the bona
fides of the investigation and the trial court was justified
in coming to the conclusion that the prosecution had
suppressed the manner in which the first information
statement was recorded and therefore the possibility that it
had been recorded after due deliberation could not be ruled
out. The circumstances emerging from the discussion of the
trial court would show that the discrepancies and the
contradictions amongst the evidence of the witness in the
matter of recording of the first information report were of
a serious nature and discredited the prosecution case and
cast serious doubts on the conduct of the investigation.
The learned Judges of the High Court, however, dealt with
this aspect of the matter in the following manner:
“The fact that there is some minor discrepancy
as regards the time and place at which the FIR
was lodged is of no significance. After all
the witness deposed in court more than a year
later. The FIS contains the relevant details
fully corroborating on the material
particulars what the witnesses spoke. The
names of the accused are mentioned in the FIS.
It contains a clear and cogent narrative of
the incident. It is not correct to disbelieve
the prosecution case because of such minor
insignificant discrepancies.”
4. We are unable to agree and appreciate the approach of
the High Court in treating the discrepancies as
insignificant or of no consequence. Since, the High Court
was upsetting the order of an acquittal, it was expected
that it would furnish reasons to show as to how the findings
recorded by the trial court were either perverse or
unreasonable and not sustainable on the basis of the
material on the record. No such attempt was made by the
High Court. The opinion of the High Court that the
discrepancy with regard to the time of visit of the Police
Officer or the place where FIS was recorded was of no
significance or consequence does not appear to us to be
correct. The very fact that PW 15 had stated that whatever
he had recorded in the first information report as regards
the occurrence was on the basis of the information given to
him by the SubInspector and not on the information allegedly
furnished to him by PW 1, would go to show that reliance
could not be placed on the said first information statement.
The very basis of the prosecution case, therefore, had been
rendered
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doubtful and on account of the tainted nature of the
investigation, it would not be safe to rely upon the
evidence led by the prosecution, which the trial court found
as not inspiring confidence. We are, therefore, of the view
that the High Court was not justified in setting aside the
well considered judgment of the Sessions Court and reversing
the order of acquittal ignoring serious flaws in the
prosecution case. The appeal, therefore, succeeds and is
allowed. The conviction and sentence recorded by the High
Court against the appellants are set aside and they are
hereby acquitted. Their bail bonds shall stand discharged.
5. In the view that we have taken, we need not express any
opinion on the question whether the High Court was justified
in sentencing the appellants to a term of imprisonment,
after recording their conviction, without affording them an
opportunity of hearing on the question of sentence as
envisaged by Section 235 of Criminal Procedure Code.
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