{"id":112389,"date":"2009-10-14T00:00:00","date_gmt":"2009-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/johny-vs-state-of-kerala-on-14-october-2009"},"modified":"2015-12-11T14:42:22","modified_gmt":"2015-12-11T09:12:22","slug":"johny-vs-state-of-kerala-on-14-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/johny-vs-state-of-kerala-on-14-october-2009","title":{"rendered":"Johny vs State Of Kerala on 14 October, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Johny vs State Of Kerala on 14 October, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 1566 of 2005()\n\n\n1. JOHNY, AGED 49 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n                For Petitioner  :SRI.JOHNSON ABRAHAM\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :14\/10\/2009\n\n O R D E R\n            K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.\n               - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                       Crl. Appeal No. 1566 of 2005\n                  - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                 Dated this the 14th day of October, 2009.\n\n                                      JUDGMENT\n<\/pre>\n
Bhavadasan, J,<\/p>\n
            The accused was                        prosecuted for the offence<\/p>\n
punishable under Section 302 of the Indian Penal Code. He<\/p>\n
was found guilty. He was therefore convicted and sentenced to<\/p>\n
undergo imprisonment for life and also directed to pay fine of<\/p>\n
Rs.25,000\/-, in default of which he has to suffer simple<\/p>\n
imprisonment for a further period of five months.<\/p>\n
            2. P.W.1, a mason by profession, and the cousin of<\/p>\n
th deceased, on 25.2.2001 at 12.30 p.m. was on his way to the<\/p>\n
market to purchase vegetables. On the way he met his sister,<\/p>\n
namely, Philomina. They were going along the Kuttampuzha<\/p>\n
bridge. They heard a loud noise from behind. They turned<\/p>\n
round and found the accused stabbing the deceased with M.O.1<\/p>\n
knife repeatedly. P.W.1 and others removed the deceased to<\/p>\n
the hospital. On reaching the hospital the doctor pronounced<\/p>\n
Crl.A.1566\/2005.                2<\/span><\/p>\n
him dead and Ext.P4 is the relevant certificate. By about 2.30 p.m.<\/p>\n
on the same day, P.W.1 laid Ext.P1 first information statement.<\/p>\n
Ext.P1 first information statement was recorded by P.W.15, who<\/p>\n
registered Crime No.14 of 2001 as per Ext.P11 FIR. Investigation<\/p>\n
was taken over by P.W.16. On 25.2.2001 at about 3.45 p.m. he<\/p>\n
conducted inquest over the body of deceased and prepared Ext.P2<\/p>\n
inquest report. He had M.Os. 5 and 6 seized. The body was sent<\/p>\n
for postmortem examination.      P.W.10, the Forensic Surgeon<\/p>\n
conducted autopsy and furnished Ext.P6 report. P.W.16 prepared<\/p>\n
Ext.P3 scene mahazar and had M.O.1 chopper seized as per Ext.P7<\/p>\n
mahazar. As per Ext.P10 he seized M.O.4 Lunki said to have been<\/p>\n
worn by the accused at the time of the incident. He arrested the<\/p>\n
accused. He had also seized a complaint given by the deceased<\/p>\n
against the accused on the very same day morning as per Ext.P12<\/p>\n
mahazar. He had the articles seized during the investigation sent<\/p>\n
for chemical examination and Ext.P13 is the chemical analysis<\/p>\n
Crl.A.1566\/2005.                  3<\/span><\/p>\n
report. The accused was produced before court on 9.3.2001 and he<\/p>\n
was remanded to judicial custody.        P.W.16 had recorded the<\/p>\n
statements of witnesses and completed major portion of the<\/p>\n
investigation. P.W.17 is his successor in office who completed<\/p>\n
the investigation and laid charge before court.<\/p>\n
             3.  JFCM, Kothamangalam took cognizance of the<\/p>\n
offence. On appearance of the accused before the said court, all<\/p>\n
legal formalities were complied with.      The learned Magistrate<\/p>\n
complied with all the necessary legal formalities. The learned<\/p>\n
Magistrate found that the case is one exclusively triable by a court<\/p>\n
of Sessions and therefore committed the case to Sessions Court,<\/p>\n
Ernakulam under Section 209 Criminal Procedure Code. On<\/p>\n
receipt of the records, the said court made over the case to First<\/p>\n
Additional Sessions Court, Ernakulam for trial and disposal.<\/p>\n
             4. The said court, on receipt of records,       issued<\/p>\n
summons to the accused and he entered appearance. After hearing<\/p>\n
Crl.A.1566\/2005.                 4<\/span><\/p>\n
both sides, charge was framed for the offence punishable under<\/p>\n
Section 302 Indian Penal Code. It was read over to the accused<\/p>\n
and     the accused pleaded not guilty and claimed to be tried.<\/p>\n
Prosecution had therefore P.Ws. 1 to 17 examined Exts.P1 to P15<\/p>\n
(a) marked. M.Os. 1 to 8 were identified and marked. After the<\/p>\n
close of the prosecution evidence, the accused was questioned<\/p>\n
under Section 313 of the Criminal Procedure Code. He denied all<\/p>\n
the incriminating circumstances brought out against       him and<\/p>\n
maintained that he is innocent. In his defence he stated that he<\/p>\n
was innocent and he had nothing to do with the incident. He<\/p>\n
denied that his clothes have been seized. He said that he had no ill<\/p>\n
feeling towards the deceased. On 23.2.2001 at about 5.30 P.M. he<\/p>\n
had hired the vehicle of one Kurian Joy and had gone to Kannur<\/p>\n
for selling the pine apple grown by him. When he returned in the<\/p>\n
evening on the date of the incident, he came to know about the<\/p>\n
same. He enquired about the reason for the incident. When he<\/p>\n
Crl.A.1566\/2005.                5<\/span><\/p>\n
enquired about the incident he came to know that there was some<\/p>\n
money transaction between the deceased and the person who<\/p>\n
committed the offence. On the next day he participated in the<\/p>\n
funeral ceremony of the deceased. On the next day also, as usual,<\/p>\n
he went to Cherthala for his business purpose. He would depose<\/p>\n
that Korakkal Jose was enimical towards him for the reason that he<\/p>\n
had spoken against him in the Panchayat election. Jose holds<\/p>\n
considerable influence in the area. It is out of that vengeance he<\/p>\n
had been falsely implicated.\n<\/p>\n
             5. Finding that the accused could not be acquitted<\/p>\n
under Section 232 Criminal Procedure Code, he was asked to enter<\/p>\n
on his defence. He had D.Ws. 1 to 3 examined and Exts.D1 to D4<\/p>\n
(a) marked. On a consideration of the materials before it, the court<\/p>\n
below found that the prosecution had established the case against<\/p>\n
the accused and accordingly conviction and sentence as already<\/p>\n
mentioned followed. The said conviction and sentence are assailed<\/p>\n
Crl.A.1566\/2005.                  6<\/span><\/p>\n
in this appeal.\n<\/p>\n
             6. The question that arises for consideration is whether<\/p>\n
the court below was justified in holding that the accused was guilty<\/p>\n
of the offence punishable under Section 302 Indian Penal Code.<\/p>\n
             7. The prosecution case in brief is that on the date of<\/p>\n
the incident in the afternoon while P.W.1 and his sister were going<\/p>\n
along, they happened to see the accused stabbing the deceased. It<\/p>\n
appears that the prosecution case is that there was a quarrel<\/p>\n
between them on the previous day and that resulted in the incident.<\/p>\n
In order to prove the incident the prosecution mainly relies on the<\/p>\n
evidence of P.Ws.1 to 4 and 6. Even though P.W.12 was examined<\/p>\n
by the prosecution, he turned hostile. The court below found the<\/p>\n
evidence adduced by the prosecution          sufficient to hold the<\/p>\n
accused guilty.\n<\/p>\n
             8. Learned counsel appearing for the accused pointed<\/p>\n
out that the court below has not appreciated the evidence in the<\/p>\n
Crl.A.1566\/2005.                  7<\/span><\/p>\n
proper perspective and that has resulted in miscarriage of justice.<\/p>\n
It was pointed out that there is intrinsic evidence to show that<\/p>\n
P.W.1 was not at the place of the incident at the relevant time and<\/p>\n
that he had come much later. The glaring inconsistencies and<\/p>\n
contradictions in the evidence of P.Ws. 2 and 3 make them<\/p>\n
unworthy of credit. According to the learned counsel, the deceased<\/p>\n
had four other brothers by name Korakkal Jose, Korakkal Johny,<\/p>\n
Korakkal Paily and Korakkal Devassykutty. Sijo is the son of<\/p>\n
Korakkal Paily. According to the counsel, in order to save Sijo,<\/p>\n
who had committed the murder, the accused had been falsely<\/p>\n
implicated.     Korakkal family is very powerful and influential.<\/p>\n
None in the locality dared to speak against them. Even going by<\/p>\n
the prosecution case, according to the learned counsel, the police<\/p>\n
station is only 300 meters away from the place of incident and the<\/p>\n
injured had, while being taken to the hospital, to pass by the police<\/p>\n
station. It is inconceivable that, till P.W.1 laid First Information<\/p>\n
Crl.A.1566\/2005.                  8<\/span><\/p>\n
Station at 3.30 p.m., the police had no information about the<\/p>\n
incident. It is highly improbable also. P.W.1’s evidence is that his<\/p>\n
clothes were drenched with blood, but for the reasons best known<\/p>\n
to the investigating agency they did not feel it necessary to seize<\/p>\n
those clothes. P.W.1 had stated that Sijo is very dear to him and he<\/p>\n
would do anything for him. Relying on the sketch prepared by the<\/p>\n
Village Officer, it was pointed out that the location of the place of<\/p>\n
occurrence was unreliable and that cuts the root of the prosecution<\/p>\n
case.    The sketch has not been properly drawn.          The result<\/p>\n
according to the learned counsel is that the prosecution has not<\/p>\n
succeeded in establishing the case against the accused.<\/p>\n
             9. According to the learned Public Prosecutor, the court<\/p>\n
below has taken pains to meticulously analyse the evidence. The<\/p>\n
court below found the evidence adduced sufficient enough and<\/p>\n
entered a finding that the offence had been established. Drawing<\/p>\n
attention of this court to the fact that the plea of the accused was<\/p>\n
Crl.A.1566\/2005.                  9<\/span><\/p>\n
infact one of alibi and that he had examined three witnesses in that<\/p>\n
regard, learned Public Prosecutor stressed that the accused had not<\/p>\n
succeeded in establishing the plea of alibi. That is a strong<\/p>\n
circumstance which goes against the accused. The claim of the<\/p>\n
accused is that he was nowhere at the place of the incident and it<\/p>\n
was Sijo who had done the mischief. Learned Public Prosecutor<\/p>\n
pointed out that his plea of alibi was put forward for the first time<\/p>\n
at the time of being questioned under Section 313 Cr.P.C.. There<\/p>\n
was no suggestion regarding the defence set up by him to any of<\/p>\n
the prosecution witnesses at all. True,, P.W.12 has chosen to<\/p>\n
betray the prosecution and has chosen to support the accused. But<\/p>\n
a close reading of the evidence shows that his evidence is not<\/p>\n
worthy of credit. Learned Public Prosecutor pointed out that one<\/p>\n
cannot omit to note that the incident has taken place in broad day<\/p>\n
light in a public road and it is inconceivable that anyone could<\/p>\n
have been falsely implicated.      Learned Public Prosecutor also<\/p>\n
Crl.A.1566\/2005.                 10<\/span><\/p>\n
pointed out that the reasons given for falsely implicating the<\/p>\n
accused are too feeble. According to the accused, he had spoken<\/p>\n
ill about the deceased in a Panchayat election.        It was after<\/p>\n
considering all these aspects, the court below has come to the<\/p>\n
conclusion that the offence had been established. The learned<\/p>\n
Public Prosecutor pointed out that no grounds are made out to<\/p>\n
interfere with the conviction and sentence awarded by the court<\/p>\n
below.\n<\/p>\n
             10. One of the principal witness for the prosecution is<\/p>\n
P.W.1. He, as already noticed, is related to the deceased. He<\/p>\n
would say that on the date of the incident he was on his way to<\/p>\n
purchase vegetables from the market. On the way, he was joined<\/p>\n
by his sister. While going along the bridge, they happened to hear<\/p>\n
a sound from behind. They turned round. They saw the accused<\/p>\n
repeatedly stabbing the deceased. He would depose that P.W.12<\/p>\n
wrested the weapon from the hands of the accused. P.W.1 claims<\/p>\n
Crl.A.1566\/2005.                11<\/span><\/p>\n
to have rushed to the aid of the deceased. The deceased was<\/p>\n
removed to the hospital in a jeep. As soon as they reached the<\/p>\n
hospital, Doctor pronounced him dead. He would then depose that<\/p>\n
he had then gone to the police station and laid Ext.P1 First<\/p>\n
Information Statement.\n<\/p>\n
             11. P.W.2 is an eye wintess to the incident. So also<\/p>\n
P.W.3. They are husband and wife. They run a tea shop. The tea<\/p>\n
shop is situated in Arekkar Junction. They open the tea shop at 6<\/p>\n
a.m.. The date of the incident was a Sunday. On that day also the<\/p>\n
tea shop was open. P.W.2 would say that on that day at about 10<\/p>\n
-10.30 a.m. deceased Baby had come along with his child to the tea<\/p>\n
shop and had food from there. He waited for his wife to return<\/p>\n
from the Church. While so, these witnesses would depose that the<\/p>\n
accused came near the tea shop and there was an exchange of<\/p>\n
words between them regrading the money to be paid to the<\/p>\n
accused. P.W.2 would say that as the accused was leaving the<\/p>\n
Crl.A.1566\/2005.                 12<\/span><\/p>\n
place, the deceased challenged him. Infuriated, according to this<\/p>\n
witness, the accused took out a knife from the big shopper bag he<\/p>\n
was carrying and stabbed the deceased. The incident happened<\/p>\n
near the Kuttampuzha bridge. He says that he and his wife, namely<\/p>\n
P.W.3 came out of their tea shop and they saw the accused<\/p>\n
repeatedly stabbing the deceased. Seeing the incident, the child of<\/p>\n
the deceased cried and ran out. The child was taken inside the<\/p>\n
shop by P.W.3. As soon as she entered the tea shop she became<\/p>\n
unconscious. By that time, people had gathered at the spot and<\/p>\n
P.W.12 had wrested the knife from the accused. A jeep was<\/p>\n
brought and the deceased was removed to the hospital.           The<\/p>\n
accused managed to escape.       He later came to know that the<\/p>\n
injured was no more.\n<\/p>\n
             12. P.W.3, as already stated, is the wife of P.W.2. She<\/p>\n
also speaks about the incident.     She too speaks about P.W.12<\/p>\n
having wrested the knife from the hands of the accused. She took<\/p>\n
Crl.A.1566\/2005.                 13<\/span><\/p>\n
the child of Baby (deceased) inside the tea shop and she became<\/p>\n
unconscious soon thereafter. She speaks about the quarrel between<\/p>\n
the deceased and the accused with reference to the money to be<\/p>\n
paid for having purchased meat on the previous day.<\/p>\n
             13. P.W.4 runs a stationary shop. He says that the<\/p>\n
accused happened to pass by his shop and when he asked about the<\/p>\n
quarrel between the deceased and the accused on the previous day,<\/p>\n
the accused told him that the deceased had given a complaint<\/p>\n
against him to the police and that he would do away with him.<\/p>\n
Soon thereafter this witness claims that he heard a loud noise from<\/p>\n
near the bridge and when he reached the spot he found P.W.12<\/p>\n
wresting the knife from the accused. He would depose that the<\/p>\n
deceased was removed to the hospital.\n<\/p>\n
             14. P.W.5 says that hearing the noise when he reached<\/p>\n
the spot, he found the deceased lying there with the stab injuries.<\/p>\n
He along with others removed the deceased to the hospital.<\/p>\n
Crl.A.1566\/2005.                 14<\/span><\/p>\n
             15. P.W.6 too says about having seen P.W.12 wresting<\/p>\n
knife from      the accused and the deceased being taken to the<\/p>\n
hospital. He would also depose that he saw the accused running<\/p>\n
away from the place.\n<\/p>\n
             16. P.W.7, the witness speaks about the quarrel on the<\/p>\n
previous day of the incident between the accused and the deceased.<\/p>\n
He would say that he heard the accused threatening the deceased.<\/p>\n
             17. These are the main items of evidence. It is not in<\/p>\n
dispute that Baby died due to stab injuries. This would be clear<\/p>\n
from the evidence of P.W.10 and Ext.P6 postmortem certificate.<\/p>\n
P.W.10 has categorically stated that the death was caused due to<\/p>\n
injury No.4, which was on the chest of the deceased. He speaks<\/p>\n
about the other injuries also found on the body of the deceased. He<\/p>\n
is of the opinion that injury No.4 could have been caused by using<\/p>\n
M.O.1.\n<\/p>\n
Crl.A.1566\/2005.                  15<\/span><\/p>\n
             18.   Before going into the other questions, one<\/p>\n
contention raised by the learned counsel for the appellant may be<\/p>\n
noticed. It was contended that the weapon of the nature like M.O.1<\/p>\n
could not have been caused the injuries made mention of in Ext.P6<\/p>\n
certificate taken by P.W.10. According to learned counsel, the<\/p>\n
weapon has a slight hook at the tip and that could not cause the<\/p>\n
nature of injuries said to have been inflicted on the deceased.<\/p>\n
             19. There is no merit in the contention of the learned<\/p>\n
counsel for the appellant. The Doctor has given details regarding<\/p>\n
the injuries and also the fact that those injuries could have been<\/p>\n
caused by a weapon like M.O.1. He was subjected to extensive<\/p>\n
cross examination, but he stood his ground and reiterated that the<\/p>\n
injuries could be caused by a weapon like M.O.1. In fact there was<\/p>\n
no suggestion to the doctor that any other weapon had been used.<\/p>\n
The Forensic Surgeon has given detailed explanation regarding the<\/p>\n
injuries and how it could have been caused with M.O.1 weapon.<\/p>\n
Crl.A.1566\/2005.                 16<\/span><\/p>\n
             20. There may be some substance in the contention<\/p>\n
raised by the learned counsel for the appellant that P.W.1 was not<\/p>\n
at the place of occurrence at the relevant time. His evidence had<\/p>\n
already been referred to. When one recalls the evidence of P.Ws. 2<\/p>\n
and 3, they say about Baby, the deceased, having come to the tea<\/p>\n
shop with his child. One shall not forget the fact that P.W.1 is<\/p>\n
closely related to the deceased. The child was aged only about two<\/p>\n
and a half years.      After the accused had quarreled with the<\/p>\n
deceased and was about to leave the place, he was challenged by<\/p>\n
the deceased and thereafter the unfortunate incident took place.<\/p>\n
The defence has a case that P.W.1 came at a much later stage in<\/p>\n
fact at the time of removing the deceased to the hospital, and that<\/p>\n
he was nowhere at the scene of occurrence at the relevant time.<\/p>\n
             21. Going by the evidence of P.W.1, he happened to<\/p>\n
meet his sister Philomina and they were walking along the bridge<\/p>\n
that then the unfortunate incident occurred. They happened to see<\/p>\n
Crl.A.1566\/2005.                  17<\/span><\/p>\n
the accused stabbing the deceased and they rushed to the aid of the<\/p>\n
deceased. P.Ws. 2 and 3 had categorically stated that seeing the<\/p>\n
attack on his father the child ran out crying ‘Papa Papa’.<\/p>\n
Obviously, if P.W.1 and his sister were present at the place, they<\/p>\n
could not have omitted to notice the child. P.W.1 does not say<\/p>\n
anything about the presence of the child at all.          The further<\/p>\n
evidence of P.Ws. 2 and 3 are to the effect that the child was taken<\/p>\n
back to the tea shop by P.W.3 and soon thereafter P.W.3 became<\/p>\n
unconscious.     Even assuming that P.W.1 was immediately<\/p>\n
concerned with rescuing the victim, and taking him to the hospital,<\/p>\n
his sister could not have omitted to take care of the child. This<\/p>\n
glaring omission in the evidence of P.W.1 cause some doubt about<\/p>\n
his presence at the place of the incident at the relevant time.<\/p>\n
             22. There is yet another glaring aspect. P.W.1 claims<\/p>\n
to have rushed to the aid of the victim.          At that time, even<\/p>\n
according to this witness, the victim was bleeding profusely. He<\/p>\n
Crl.A.1566\/2005.                   18<\/span><\/p>\n
claims to have carried the deceased to the autorickshaw along with<\/p>\n
two others and he also claims that his clothes were drenched in<\/p>\n
blood. It is rather strange to note that his clothes were not seized<\/p>\n
by the investigating officer for the reasons best known to them. It<\/p>\n
is also interesting to note that going by the evidence of P.W.1, after<\/p>\n
taking the victim to the hospital, when they were told that the<\/p>\n
victim is no more, P.W.1 claims to have directly gone to the police<\/p>\n
station. If as a matter of fact, what P.W.1 says is true, obviously<\/p>\n
his clothes would have been seized by the police. However, even<\/p>\n
going by the defence version, he joined the others at the time when<\/p>\n
the victim was being taken to the hospital. That appears to be more<\/p>\n
probable. It cannot be said that the evidence of P.W.1 is above<\/p>\n
board. His claim that he had actually seen the stabbing of the<\/p>\n
victim by the accused is open to doubt.\n<\/p>\n
             23. However, the evidence of P.Ws. 2 and 3 stand on a<\/p>\n
different footing. They are two independent and natural witnesses.<\/p>\n
Crl.A.1566\/2005.                  19<\/span><\/p>\n
Of course there are some inconsistencies and minor contradictions<\/p>\n
in their evidence. But they are of trivial in nature.<\/p>\n
             24. In the decision reported in Kulesh Mondal v. State<\/p>\n
of West Bengal (AIR<\/a> 2007 SC 3228), it was held as follows:<\/p>\n
             “To the same effect is the decision in State of<\/p>\n
      Punjab v. Jagir Singh (IR<\/a> 1973 SC 2407) and Lehna v.<\/p>\n
      State of Haryana<\/a> (2002 (3) SCC 76). As observed by<\/p>\n
      this court in State of Rajasthan v. Smt.Kalki and Anr.<\/p>\n
      (AIR<\/a> 1981 SC 1390), normal discrepancies in evidence<\/p>\n
      are those which are due to normal errors of<\/p>\n
      observation, normal errors of memory due to lapse of<\/p>\n
      time, due to mental disposition such as shock ad horror<\/p>\n
      at the time of occurrence and those are always there,<\/p>\n
      however, honest and truthful a witness may be.<\/p>\n
      Material discrepancies are those which are not normal,<\/p>\n
      and not expected of a normal person. Courts have to<\/p>\n
      label the category to which a discrepancy may be<\/p>\n
      categorized.     While normal discrepancies do not<\/p>\n
      corrode the credibility of a party’s case, material<\/p>\n
      discrepancies do so. These aspects were highlighted in<\/p>\n
Crl.A.1566\/2005.                  20<\/span><\/p>\n
      Krishna Mochi and Ors. v. State of Bihar<\/a> etc (JT 2002<\/p>\n
      (4) SC 186).”\n<\/p><\/blockquote>\n
             25. In the decision reported in Ramappa Halappa<\/p>\n
Pujar v. State of Karnataka<\/a> ((2009) 1 SCC (Crl) 250) it was<\/p>\n
observed that when the witnesses deposed after several years of the<\/p>\n
incident, it is only natural that minor inconsistencies and<\/p>\n
contradictions creep into their evidence.      But unless they are<\/p>\n
shown to be material and unless they affect the prosecution, they<\/p>\n
cannot be given undue importance.<\/p><\/blockquote>\n
             26. It may be that the witnesses, when they depose after<\/p>\n
a long time may omit to speak about the minor details and there<\/p>\n
may be some inconsistencies and contradictions in their evidence.<\/p>\n
But these inconsistencies and contradictions by themselves are<\/p>\n
insufficient to make them unworthy of credit. Irrelevant details<\/p>\n
which do not in any way affect the credibility of the witnesses<\/p>\n
cannot be labelled as omissions and contradictions.<\/p>\n
Crl.A.1566\/2005.                   21<\/span><\/p>\n
             27. It is the quality of the evidence one has to look at<\/p>\n
and not the quantity. Unless there are compelling circumstances, it<\/p>\n
may not be possible to reject the evidence of a witness based on<\/p>\n
minor contradictions and inconsistencies. The witnesses cannot be<\/p>\n
expected to retain photographic memory of the incident and<\/p>\n
moreover the power of reception, retention and reproduction<\/p>\n
varies from person to person. The attempt is to see if there is a ring<\/p>\n
of truth in the evidence and whether there is any reason to falsely<\/p>\n
implicate the accused.\n<\/p>\n
             28. One cannot omit to note that P.Ws. 2 and 3 are<\/p>\n
natural witnesses. It is not disputed that they were running the tea<\/p>\n
shop very near to the place of incident. Of course, there is a<\/p>\n
suggestion that they could not have seen the incident from the tea<\/p>\n
shop. But evidence shows that they could have seen the incident<\/p>\n
and also that they had come out hearing the sounds. Reliance<\/p>\n
placed on the scene plan is not of much consequence. It is in tune<\/p>\n
Crl.A.1566\/2005.                  22<\/span><\/p>\n
with the mahazar prepared by the investigating officer and it does<\/p>\n
not suffer from any infirmities as pointed out by the learned<\/p>\n
counsel for the appellant. It is significant to notice that there is no<\/p>\n
suggestion to the witnesses who supported the prosecution case<\/p>\n
that it was not the accused who had committed the act, but Sijo.<\/p>\n
No suggestion is made to them as to why they should falsely<\/p>\n
implicate the accused. The story given at the time of questioning<\/p>\n
under Section 313 Cr.P.C. is clearly an after thought and has no<\/p>\n
substance at all.\n<\/p>\n
             29. There is nothing to indicate that even assuming that<\/p>\n
the evidence of P.W.1 is not fully acceptable, P.Ws. 2 to 7 had any<\/p>\n
reason to speak against the accused. They are natural witnesses.<\/p>\n
Of course the defence has a case that Korakkal family terrorise the<\/p>\n
area and all people are afraid of them. If that be true, the accused<\/p>\n
would not have got persons to speak in his favour. The above<\/p>\n
claim is too fragile. There is no basis for it at all.<\/p>\n
Crl.A.1566\/2005.                   23<\/span><\/p>\n
             30. The argument that the knife, namely, M.O. 1 could<\/p>\n
not have caused the injuries found on the body of Baby had already<\/p>\n
been adverted to. It is found that the injury shown in the inquest<\/p>\n
report and the postmortem report differ and that causes suspicion<\/p>\n
about the case.    One must remember here that the inquest is<\/p>\n
prepared by a police officer, while autopsy is conducted by an<\/p>\n
experienced Forensic Surgeon.          Merely because the injuries<\/p>\n
mentioned in these two reports do not tally, it does not mean that<\/p>\n
the prosecution case has to fail.\n<\/p>\n
             31. One cannot remain blind to the defence set up,<\/p>\n
which is a plea of alibi. It is well settled that when a plea of alibi is<\/p>\n
raised, the burden is on the accused to prove the same. (See the<\/p>\n
decisions reported in Brijlala Pd. Sinha v. State of Bihar (AIR<\/a><\/p>\n
1998 SC 2443) and Akbar Sheikh v. State of W.B. ( (2009) 7<\/p>\n
SCC 415).\n<\/p>\n
Crl.A.1566\/2005.                  24<\/span><\/p>\n
             32. Apart from that, the case set up by D.Ws. 1 to 3 is<\/p>\n
only developed at the stage of being questioned under Section 313<\/p>\n
Cr.P.C., and therefore their evidence is unconvincing also. D.W.1<\/p>\n
has stated that the actual stabbing was done by Sijo. He also<\/p>\n
speaks about the role played by P.W.12. One may not forget the<\/p>\n
fact that P.W.12 also supports the accused in this regard to the<\/p>\n
extent that he had wrested the knife from Sijo. It is clear from a<\/p>\n
reading of the evidences of D.W.1 that he had cooked up a story to<\/p>\n
help the accused.\n<\/p>\n
             33. D.W.2 would say that on the relevant day his<\/p>\n
vehicle was hired by the accused to transport pine apple. He lends<\/p>\n
his vehicle for hire. If that be true, the vehicle should have a trip<\/p>\n
sheet and it will indicate the true state of affairs. The defence has<\/p>\n
not chosen to have the trip sheet produced to establish his claim.<\/p>\n
Therefore the evidences of these witnesses are of no purpose.<\/p>\n
             34. D.W.3 gives an entirely different story.\n<\/p>\n
Crl.A.1566\/2005.                 25<\/span><\/p>\n
             35. As already noticed, the case put forward by these<\/p>\n
witnesses are not even suggested to the prosecution witnesses.<\/p>\n
             36. It may be noticed that going by the records, Ext.P1<\/p>\n
FIS was drawn up by about 2.30 p.m. and Ext.P2 inquest report<\/p>\n
was drawn up by 3.45 p.m. on the date of incident itself. Both<\/p>\n
Ext.P1 and Ext.P2 report were produced before the court on<\/p>\n
26.2.2001, that is the next day of the incident. It is significant to<\/p>\n
notice that the inquest report contains the crime number also.<\/p>\n
There is no suggestion either to P.W.15 or to P.W.16 that the first<\/p>\n
information statement and the inquest report were later drawn up<\/p>\n
and ante-dated and ante-timed. One may recall that the incident<\/p>\n
took place at about 12.45 p.m. on 25.2.2001. Therefore these two<\/p>\n
crucial documents came into existence soon after the incident. It<\/p>\n
cannot be believed that within such a short span the police could<\/p>\n
manipulate, fabricate or concoct a story so as to falsely implicate<\/p>\n
the accused. Apart from the above fact, it is too difficult to believe<\/p>\n
Crl.A.1566\/2005.                 26<\/span><\/p>\n
that in an incident which happened in broad day light in a<\/p>\n
significant place of the locality, the police would have ventured<\/p>\n
and agreed to falsely implicate a person.\n<\/p>\n
             37. The court below has considered the evidence in<\/p>\n
great detail and has found the defence case to be untenable. On a<\/p>\n
consideration of the materials before it, the court below came to the<\/p>\n
conclusion that the prosecution has succeeded in establishing the<\/p>\n
case beyond reasonable doubt.\n<\/p>\n
             38.  It was finally contended that after the initial<\/p>\n
quarrel, the accused had left the place and the deceased had<\/p>\n
followed him and exhorted him. It was sought to be made out that<\/p>\n
it was the deceased who was the aggressor.\n<\/p>\n
             39. The above attempt is baseless. Even assuming that<\/p>\n
the deceased might have provoked the accused, the fact is that the<\/p>\n
deceased carried no weapons with him. The number of injuries<\/p>\n
inflicted on the deceased, weapon used, the nature of injuries<\/p>\n
Crl.A.1566\/2005.                 27<\/span><\/p>\n
inflicted and the manner in which they were inflicted and the fatal<\/p>\n
effect of the injuries produced would deprive of the accused of any<\/p>\n
benefit of doubt.\n<\/p>\n
             The court below is perfectly justified in coming to the<\/p>\n
conclusion that the prosecution has proved the case against the<\/p>\n
accused. The result is that this appeal is without merits and it is<\/p>\n
liable to be dismissed. We do so confirming the conviction and<\/p>\n
sentence passed by the court below.\n<\/p>\n<\/p>\n
                                        K. Balakrishnan Nair,
\n                                                  Judge<\/p>\n
                                            P. Bhavadasan,
\n                                                  Judge
\nsb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Johny vs State Of Kerala on 14 October, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-112389","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nJohny vs State Of Kerala on 14 October, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/johny-vs-state-of-kerala-on-14-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Johny vs State Of Kerala on 14 October, 2009 - 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