{"id":81921,"date":"2003-08-11T00:00:00","date_gmt":"2003-08-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kunju-muhammed-khumani-anr-vs-state-of-kerala-on-11-august-2003"},"modified":"2018-04-03T16:21:18","modified_gmt":"2018-04-03T10:51:18","slug":"kunju-muhammed-khumani-anr-vs-state-of-kerala-on-11-august-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kunju-muhammed-khumani-anr-vs-state-of-kerala-on-11-august-2003","title":{"rendered":"Kunju Muhammed @ Khumani & Anr vs State Of Kerala on 11 August, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kunju Muhammed @ Khumani & Anr vs State Of Kerala on 11 August, 2003<\/div>\n
Author: S Hegde<\/div>\n
Bench: N. Santosh Hegde, B.P. Singh.<\/div>\n
           CASE NO.:\nAppeal (crl.)  1141 of 2001\n\nPETITIONER:\nKunju Muhammed @ Khumani & Anr.\t  \n\nRESPONDENT:\nState of Kerala\t\t\t\t\t\t \n\nDATE OF JUDGMENT: 11\/08\/2003\n\nBENCH:\nN. Santosh Hegde & B.P. Singh.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
(With Crl. A. No\u2026967\u2026..\/2003
\n@ S.L.P.(Crl.)No.6744\/2001)<\/p>\n
SANTOSH HEGDE, J.\n<\/p>\n
\tThe two appellants herein who were accused Nos.1 and 2
\nbefore the IIIrd Additional Sessions Judge, Ernakulam, are in
\nappeal before us in this appeal filed under Section 379 of the
\nCode of Criminal Procedure. The appeal is filed against the
\njudgment of the High Court of Kerala at Ernakulam made in
\nCriminal Appeal No.41 of 1995. In the said judgment, the High
\nCourt reversed the judgment of the learned Sessions Judge and
\nconvicted the appellants herein of offences punishable under
\nSections 302, 323 and 324 read with 34 IPC and awarded a
\nsentence of imprisonment for life as also on the charge for an
\noffence under Section 302. A sentence of RI for one year for
\noffences punishable under sections 323 and 324 read with
\nSection 34 IPC was awarded in addition to the sentence already
\nimposed under Section 302 IPC. The co-accused namely
\nUmmer son of Kochunni who stood convicted under Sections
\n323 and 324 read with 34 and sentenced to undergo RI for one
\nyear by the  impugned judgment of the High Court has
\npreferred the connected SLP which will be taken up for
\nconsideration separately.\n<\/p>\n
\tThe case of the prosecution as presented to the trial court
\nis that in an altercation that took place between
\nKunjumuhammed PW-3, Kochunni PW-4, Khadarkunju PW-5
\non one side and Moosakutty A-2, Ummer A-3, Ali A-4,
\nKochunni A-5, Ashraf A-6 and Subair A-7 on the other, on
\n3.11.1991 at about 8.15 a.m. on the North-Eastern portion of
\nKorathukudy House No.III\/209 of Vengola Panchayat, the
\nabovesaid accused persons assaulted Kochunni PW-4 and
\nKunjumuhammed PW-3.  At that time the deceased Majeed
\ncame to the place of the incident and resisted the said accused
\nfrom assaulting PWs.3 and 4 at which time Ummer A-3 beat
\nMajeed with an iron rod MO-1 which blow was warded off by
\nMajeed who caught hold of the iron rod and a scuffle ensued
\nbetween Majeed and Ummer A-3. At this point of time,
\nKunjumohammed A-1 came to the scene with a fishing sword
\nMO-2 and stabbed on the back of Majeed with the same.
\nMajeed having received the said stab injury then allegedly
\nturned towards A-1 and caught hold of the sword which was
\npulled back by A-1 who again stabbed Majeed on the left side
\nof his chest. Seeing the assault on Majeed it is stated
\nMuhammed PW-2 rushed to the scene but he was intercepted
\nand stabbed by A-1 on the right side of the lower part of his
\nbelly. PW-2 then caught hold of the sword but he was assaulted
\nby Ummer A-3 on the head with the iron rod. At that point of
\ntime the prosecution alleges accused 2 and 4 to 7 dragged
\nMajeed to the residential compouned of the 3rd accused and put
\nMajeed in a supine position and A-4 exhorted others by
\nshouting “cut this pig’s throat”. The prosecution then alleges
\nthat the second accused got MO-2 a swrod from the first
\naccused and inflicted a forceful cut on the front of the neck of
\nMajeed due to which injury Majeed died on the spot. It is the
\nfurther case of the prosecution that on the same day at about
\n8.45 a.m., Sacaria PW-1 went to the Perumbavoor Police
\nStation which is about 2 to 3 kms. from the place of incident
\nand lodged a complaint as per Ex. F-1. The Assistant Sub-
\nInspector of Police, PW-18 attached to the said Police Station
\nrecorded Ex. P-1 and registered Crime No.408\/91, he then sent
\nthe file to the Circle Inspector of Police, PW-19, who initiated
\nthe investigation of the case and proceeded to the scene of
\nincident at about 9 a.m. and prepared inquest Panchnama as per
\nEx. P-6 which was attested by PW-10 Azeez. The I.O. (PW-19)
\nalso seized MO-4, a lungi found on the body of Majeed, a
\nthorthu (MO-3) found near the body of Majeed and also MO-5
\nslippers.  Thereafter he sent the body to Kottayam Medical
\nCollege hospital for postmortem examination. He then
\nconducted the Mahazar of the scene of the incident. On search
\nof the house of the 3rd accused he found and seized Mos.1 and 2
\nas per Ex. P-8 which was attested by Mohammad PW-12.\n<\/p>\n
\tThe postmortem of the body of the deceased was
\nconducted at about 1.30 p.m. on 3.11.1991 by PW-13 the doctor
\nwho was then the Asstt. Professor of Forensic Medicine,
\nKottayam Medical College and who issued Ex. P-12, the
\npostmortem certificate noting that the injuries suffered by the
\ndeceased were anti-mortem. On 3.11.1991 the doctor, PW-14 at
\nthe Medical Trust Hospital, Ernakulam examined Muhammad
\nPW-2 and issued Ex. P-13 on 4.11.1991. PW-17, the doctor at
\nthe Taluk Headquarters Hospital, Perumbavoor examined
\nKochunni, PWs. 3 and 4 and issued Exs. P-16 and P-20, the
\nmedical certificates. This witness also identified the
\nhandwriting of CW-28, Dr. T.K. Ibrahim who had issued the
\ncertificate Ex. P-22 and who was not available to be examined.\n<\/p>\n
\tAfter completing the investigation, accused were
\ncommitted for trial for an offence punishable under Section 302
\nand other offences before the Sessions Court, Ernakulam which
\ntrial then stood transferred to the III Additional Sessions Court
\nat North Perumbavoor. At the trial since the 7th accused Subair
\nwas found to be a minor below the age of 16, his case was
\nseparated from the rest of the accused and he was directed to
\nappear before the Juvenile Court. Thus his case stood
\ntransferred to the Juvenile Court while the trial against A-1 to
\nA-6 stood transferred ultimately to the III Additional Sessions
\nCourt, Ernakulam. The said learned Sessions Judge as per his
\njudgment dated 29.10.1994 came to the conclusion that though
\nthe prosecution has established that the deceased Majeed died
\ndue to the injuries suffered by him, further came to the
\nconclusion that the prosecution has failed to establish beyond
\nall reasonable doubt that it is these accused persons who had
\ncaused injuries to Majeed leading to his death. It also came to
\nthe conclusion that from the prosecution evidence it was not
\npossible to come to the conclusion that the incident in question
\nhad taken place at the time and place mentioned by it and on the
\ncontrary, it was more probable as stated in the defence version
\nthat Majeed must have sustained injuries at the Tapioca
\ncultivation at about 4.30 or 5 a.m. i.e. much prior to the alleged
\ntime put forth by the prosecution i.e. 8.15 a.m. It also came to
\nthe conclusion, since admittedly the prosecution witnesses had
\nenmity with the accused persons and the prosecution having
\nfailed to produce any independent witnesses though such
\nwitnesses were present at the time and the place when the
\nincident had taken place, that it was not safe to rely upon the
\ninterested testimony of those witnesses produced by the
\nprosecution. The trial court also noticed the fact that even
\nthough the prosecution had projected PW-1 as an eye witness to
\nthe incident in question, he had not supported the prosecution
\ncase and had actually stated in his evidence before the court that
\nhe was called to the Police Station on the midnight of 3rd and 4th
\nNovember, 1991 and was asked to sign a prepared statement
\nwhich indicated the fact that the investigating agency did not
\nknow who the accused persons were till that time. Though this
\nwas the evidence of an hostile witness, the trial court found
\ncorroboration for this part of the evidence of PW-1 from the
\nfact that even according to the prosecution the special report
\nsent from the Police Station Perumbavoor to the Magistrate,
\nPerumbavoor reached the said court only at about 4.30 p.m. on
\n4.11.1991 inspite of the fact that the Police Station and the
\ncourt are located in the same town. It also noticed the fact that
\nthe prosecution had failed to explain the clay and mud found on
\nthe feet of the deceased which could not have been there on his
\nfeet if actually the incident had taken place as projected by the
\nprosecution said court opined that this fact also indicated that
\nincident must have taken place in the Tapioca garden. The trial
\ncourt also relied upon certain omissions in the evidence of
\nPWs.2 to 5 in regard to dragging of the body of Majeed and in
\nthe narration of incident that took place after he was taken to
\nthe compound of A-3’s building. Thus the trial court came to
\nthe conclusion that there is a strong and genuine doubt in regard
\nto veracity of the prosecution case and benefit of that doubt
\nshould enure to the advantage of the accused and it is based on
\nthat conclusion, it acquitted the accused persons of all the
\ncharges levelled against them.\n<\/p>\n
\tIt is against the said judgment of acquittal that the State
\npreferred an appeal to the High Court of Kerala at Ernakulam as
\nstated above, and the High Court as per the impugned judgment
\non a total re-appreciation of the evidence on record disagreed
\nwith the trial court in regard to the involvement of 3 appellants
\nherein and came to the conclusion that the prosecution has
\nclearly established its case against these accused persons
\nnamely A-1 to A-3 therefore found appellants
\nKunjumohammed A-1 and Moosakutty A-2 guilty of offences
\npunishable under section 302 and sentenced them to undergo RI
\nfor life. It also convicted   A-1 to A-3 of offences punishable
\nunder sections 323 and 324 read with section 34 for having
\ncaused injuries to PW-2 hence convicted them to undergo RI
\nfor a period of 1 year since A-1 and A-2 were already convicted
\nfor offence under section 302 for life imprisonment, it made the
\nsentences imposed by it for offences under sections 323, 324
\nread with 34 to run concurrently with the sentence imposed
\nunder section 302, while in regard to A-3 it made it the
\nsubstantive sentence. It is against this judgment as stated above
\nthat the appellants are now before us, challenging their
\nconviction and sentence as awarded to them by the High Court.\n<\/p>\n
\tMr. Sushil Kumar, learned senior counsel appearing in
\nCrl.A. No. 1141\/2001 for the appellants very strenuously
\ncontended that the High Court was in error in reversing the
\njudgment of the trial court merely on the basis that another view
\nwas possible on the same set of facts. He contended that though
\nthe High Court while entertaining an appeal under Section
\n378(3) of the Code of Criminal Procedure acts as an appellate
\ncourt on facts also still it ought not to have reversed a finding of
\nfact arrived at by the trial court which is otherwise justly
\narrived at. He submitted that merely because another view
\ncould have been possible, the High Court ought not to have
\nsubstituted its opinion in place of the one arrived at by the trial
\ncourt, that too without coming to the finding that the
\nconclusions arrived at  by the trial court were either perverse or
\nwere such which could not have been arrived at by any
\nreasonable person on the facts of the case. He further submitted
\nthat the prosecution has failed to establish its case beyond all
\nreasonable doubt especially in regard to the time and place of
\nincident. According to learned counsel, the High Court took a
\nvery casual view of the serious discrepancy found in the
\nprosecution evidence while accepting the same to base a
\nconviction.\n<\/p>\n
Mr. Ramesh Babu, learned counsel for the State per
\ncontra argued that the finding of the learned Sessions Judge was
\ncontrary to the evidence on record therefore the High Court was
\njustified in interfering with such finding of the trial court. He
\nsubmitted there is absolutely no reason why PWs.-2 and 3
\nshould be disbelieved when they themselves had suffered
\ninjuries. He submitted that the arguments of the learned counsel
\nfor the appellants in regard to the time and place of incident
\nhave no support from the material on record, hence, ought to be
\nrejected.\n<\/p>\n
\tA perusal of the judgments of the two courts below
\nshows that the trial court noticed 2 major discrepancies in the
\ncase of the prosecution. It found that the prosecution case that
\nthe incident in question had occurred at about 8.15 a.m. on
\n3.11.1991 in the front lane on the North-Eastern portion of
\nKorathukudy House NO.III\/209 of Vengola Panchayat is highly
\ndoubtful and the defence version that the incident in question
\nmust have occurred around 4 or  5 a.m. on 3.11.1991 in a
\nKappapadam (Tapioca garden) is more probable. The High
\nCourt of course did not agree with this conclusion of the trial
\ncourt and preferred to rely on the  evidence of the alleged eye
\nwitnesses to accept the prosecution case as to the time and place
\nof incident. Since this question goes to the very root of the
\nprosecution case we would prefer to discuss this issue at this
\nstage itself.\n<\/p>\n
\tFrom the judgment of the trial court, we notice that in
\nregard to the time of incident, the trial court relied upon the
\nevidence of PW-1 who lodged the complaint Ex. P-1. He in his
\nexamination in chief itself has stated that he signed Ex. P-1 on
\nthe midnight of 3.11.1991. This witness was treated as hostile
\nand cross examined by the prosecution. If this was the sole
\npiece of evidence on which the trial court relied upon to come
\nto the conclusion that the incident in question might not have
\ntaken place at 8.15 a.m. on 3.11.1991 we would have definitely
\ndisagreed with the trial court but then the trial court also relies
\non the fact that Ex. P-1 did not reach the Magistrate Court at
\nleast till the evening of 4.11.1991 as could be seen from the
\nendorsement in the FIR. This omission on the part of the
\nprosecution to explain why the FIR did not reach the
\njurisdictional Magistrate till the evening of 4.11.1991 even
\nthough the incident in question had taken place at 8.15 a.m. and
\nreported to the police at 8.45 a.m. on 3.11.1991 itself casts very
\nserious doubt which lends support to the evidence of PW-1 that
\nthe complaint was got ready only on the midnight of
\n3\/4.11.1991. It should be borne in mind that the distance
\nbetween the Magistrate’s court and the Police Station being in
\nthe same town was very close. Then again it is to be noticed
\nfrom the evidence of PW-10 who is admittedly a very close
\nfriend of deceased Majeed that on 3.11.1991 at about 7 a.m.
\nwhen he was in his house, he had come to know that somebody
\nhad killed Majeed which was told to him by a friend and he
\nreached the Police Station by 7.30 a.m. which was again a time
\nmuch earlier than the time of incident as projected by the
\nprosecution. This also supports defence version that the incident
\nin question could not have taken place at 8.15 a.m. We further
\nnotice that the doctor PW-13 who conducted the postmortem
\nexamination had noted that the rigor mortis had formed and was
\nfound all over the dead body at the time when he conducted the
\npostmortem. He in his evidence had stated that in his opinion
\nthe rigor mortis sets in within about 4 to 7 hours of the death. If
\nwe apply the yardstick as spoken to by PW-13 of the starting of
\nrigor mortis to the facts of this case then we notice that in the
\ninstant case the death must have occurred prior to 8 a.m.,
\nbecause if  the rigor mortis starts within 4 to 7 hours of death
\nthen it would taken some time to reach all parts of body and in
\nthe instant case, rigor mortis was found in the entire body of the
\ndeceased, therefore, to reach this stage if we take 4 hours as the
\nstarting point, it would have taken some more time to reach
\ndifferent parts of the body, therefore, we think it is reasonable
\nto take the upper limit of rigor mortis reaching the entire body
\nas 7 hours and if we work backwards then we notice that the
\ndeath in question must have occurred before 6.30 a.m. on
\n3.11.1991 which actually fits into the other facts noticed by us
\nhereinabove while discussing the time of death.\n<\/p>\n
          We also notice from the evidence of PW-10 and others
\nthat when they touched the body of the deceased they found the
\nbody was cold and frozen, (may be a terminology used by the
\nlocals for the body having become stiff). Therefore, we think
\nthe trial court was justified in its finding that death had occurred
\nmuch earlier to the time mentioned by the prosecution, and the
\nHigh Court was in error in coming to a contra conclusion.  Thus
\nrelying on (a) the statement of PW-1 that the complaint was
\nsigned on the midnight of 3.11.1991; (b) the FIR reaching the
\njurisdictional Magistrate more than 36 hours after the incident
\nin question though the court is situated in the same town; (c) the
\nevidence of the doctor as to the presence of rigor mortis on the
\nbody of the deceased indicating death must have occurred much
\nearlier than 8.15 to 8.30 a.m. on 3.11.1991; (d) recording in the
\ninquest report Ex. P-6 that the body of the deceased when
\nexamined was found to be cold and frozen; we find that the
\nconclusions arrived at by the learned trial Judge that the
\nincident in question did not take place as indicated by the
\nprosecution is a probable one.\n<\/p>\n
\tNext point to be considered is in regard to place of
\nincident. We are aware of the fact that the witnesses who have
\nsupported the prosecution have stated that the incident in
\nquestion started in the lane on the north-eastern portion of
\nHouse No.III\/209 of Vengola Panchayat. Thereafter the
\ndeceased was dragged by A-4 to A-7 to the compound of
\nbuilding No.III\/206 where the deceased was put in a supine
\nposition and at the behest of A-4, A-2 cut the neck of deceased
\nwith MO-2. The trial court disbelieved this part of the
\nprosecution case also by noticing that even according to eye
\nwitnesses the injury to the neck of the deceased was such that
\nthere was profuse bleeding but none of the eye witnesses who
\nsupported the prosecution case in their evidence before the
\ncourt noticed any blood on the ground where Majeed was
\nattacked for the second time which according to the trial court
\nwas a glaring omission in the evidence of the eye witnesses
\ngiving room for doubt as to the place of the incident. The trial
\ncourt also noticed the fact that in the inquest report there was no
\nreference to the blood found at the place where the deceased’s
\nneck was cut. In the said report it was merely mentioned that
\nthe blood had clotted in the wound on the throat. The trial court
\nobserved that these are indications of the fact that the attack on
\ndeceased could not have taken place at the place suggested by
\nthe prosecution. This doubt as to the place of incident gets
\nfurther compounded by the fact that PW-13 the doctor who
\nconducted the post mortem examination in his evidence has
\nstated that when he examined the body of the deceased he
\nfound his legs covered with mud and clay. Nowhere in the
\nprosecution case it has come in evidence that the place where
\ndeceased was attacked consisted of either soft mud or clay
\nsimilar to what was found on the foot of the deceased. On the
\ncontrary, the trial court which we presume had the knowledge
\nof the area in question had observed that such mud or clay is
\nnormally found in a Tapioca field or garden, hence, justly came
\nto the conclusion that the attack on the  deceased must have
\ntaken place as pleaded by A-2 in his 313 Cr.P.C. statement.
\nThis aspect of the defence case also finds some support in the
\nevidence of PW-2 who when taken for the medical examination
\nhad told the doctor PW-14 when asked about the history of the
\ncase that the incident in question had taken place in a
\nKappapadam (Tapioca garden). If really the incident had taken
\nplace as suggested by the prosecution, we fail to understand
\nhow PW-2 could have thought of Tapioca garden even by
\ninadvertence. The explanation given by this witness that he was
\neither in an unconscious state or in a disoriented state has been
\nbelied by the certificate given by PW-14, the doctor, who in his
\ncertificate had in specific terms recorded that the deceased was
\nconscious and “was in no way disoriented”. Thus the following
\nfactors noticed by the trial court i.e. (a) omission on the part of
\nthe prosecution to establish there were blood stains on the
\nground where the deceased’s neck was cut either through the
\nevidence of eye witnesses or through the inquest report; (b)
\npresence of clay\/mud on the feet of the deceased which is
\nsimilar to the one found in  Tapioca garden; (c) the statement
\nmade by PW-2 to the doctor PW-14 when he was examined that
\nthe incident in question took place at Kappapadam are in our
\nview sufficient in the absence of any independent evidence
\nsupporting the prosecution to create a serious doubt in the
\nprosecution case as to the place of incident also. Therefore, we
\ndo not agree with the High Court when it rejected the above
\ndiscrepancies found in the prosecution case as either being
\nirrelevant or very minor in nature.\n<\/p>\n
          Be that as it may, the trial court has also considered the
\neye witness evidence produced by the prosecution bearing in
\nmind of course the close relationship between the parties as also
\nthe longstanding enmity between the parties. It is in this
\nbackground while discussing the evidence of PW-2 the trial
\ncourt came to the conclusion that the discrepancies in the
\nevidence of this witness as to place of incident as stated to the
\ndoctor PW-14 and in his evidence before the court itself were
\nsufficient to reject his evidence. However, the High Court
\nproceeded on the basis that the evidence of PW-2 in regard to
\nthe incident in question was not challenged by the defence,
\nhence, the trial court was not justified in rejecting his evidence.
\nIt took PW-2’s evidence in examination-in-chief as the gospel
\ntruth and proceeded to accept the same. In regard to the
\ncontradicting version given by PW-2 as to the place of the
\nincident to the doctor, PW-14, the High Court brushed aside
\nsame by observing : “Merely because the doctor recorded that
\nthe incident took place in Kappapadam near the house on
\n3.11.1991 at 8.45 AM it is not a ground to discard the effect of
\nthe evidence of PW2 …” From the above, we notice that the
\nHigh Court proceeded on the basis that the doctor had
\ncommitted a mistake in noting down the place of the incident,
\nwithout noticing the fact that PW-2 in fact, in his evidence, did
\nadmit the contradiction but explained it away by stating that he
\nwas disoriented at the time of medical examination, which fact
\nwas found to be false on the basis of medical report. Thus, in
\nour opinion, the High Court missed a very important
\ncontradiction in the evidence of PW-2 which certainly makes
\nhis evidence doubtful.\n<\/p>\n
\tWe notice the learned Sessions Judge rejected the
\nevidence of PW-3 primarily on the ground that he was not able
\nto state who are the accused persons who lifted the body of
\nMajeed from the place of first incident to the place of second
\nincident. The explanation given by this witness for this
\nomission that he became unconscious at that point of time was
\nrejected by the trial court as a mere excuse which on facts and
\ncircumstances of the case, in our opinion, is a good and valid
\nreason to reject the evidence of PW-3 who when it came to the
\ncrucial part of the attack,  did not support the prosecution case.
\nThe High Court did not notice this aspect of the evidence of
\nPW-3 but proceeded to accept his evidence by relying upon his
\nexamination in chief only.\n<\/p>\n
\tPW-4’s evidence was rejected by the trial court because
\nhe was not able to remember how A-2 inflicted the injury on
\nthe deceased in the second place of the incident. It is seen as per
\nprosecution case the deceased after he was dragged to the
\nsecond place of incident, was placed in a supine position and A-
\n2 cut his neck with MO-2 causing the fatal injury. If really PW-
\n4 had witnessed this incident as observed by the trial court, we
\nalso think it would have been very difficult for him to have
\nforgotten this part of the prosecution case. It is not his case that
\nhe did not witness this part of the incident but he stated before
\nthe court that he did not remember how the attack took place. In
\nour opinion, the evidence of this witness is not worthy of any
\ncredence, hence, has to be rejected.\n<\/p>\n
\tPW-5 as noticed earlier is the person who initiated the
\noriginal fight. Learned Sessions Judge noticed that while
\nanswering the questions, he found that this witness would
\nanswer only the leading questions and to certain inconvenient
\nquestions he would say that he did not remember that part of
\nthe incident in question. The trial court also noticed that he was
\nunable to say who actually had given the fatal blow to the
\ndeceased nor could he say who were the persons who dragged
\nthe deceased from the first place of incident to the second place
\nof incident. It is on this basis the trial court rejected his
\nevidence. The High Court in its turn while considering the
\nevidence of this witness observed : “The learned Sessions Judge
\nalso forgot the fact that the witness was related to the accused
\nas well as to the deceased and a reading of his evidence as a
\nwhole would clearly show that he was trying to help the
\naccused while giving his testimony. We are of the view that
\nmerely because the witness adopted such an attitude, his clear
\nevidence corroborating the version of others regarding the
\ninfliction of injury on the back and on the chest should not be
\ndiscarded.”\n<\/p>\n
We are at pains to appreciate this reasoning of the High
\nCourt. This witness has not been treated hostile by the
\nprosecution, and even then his evidence helps the defence. We
\nthink the benefit of such evidence should go to the accused and
\nnot to the prosecution. Therefore, the High Court ought not to
\nhave placed any credence on the evidence of such unreliable
\nwitness.\n<\/p>\n
\tPW-6’s evidence was rejected by the Sessions Court on
\nthe ground that the same was inconsistent with the versions
\ngiven by PWs.2 and 4. He also admitted that he did not know
\nwho had dragged Majeed from the first place of incident to the
\nsecond place of incident. The Sessions Court had noted that like
\nPW-5 this witness was unable to say who actually dragged
\ndeceased and it was only when the Additional Public Prosecutor
\nrepeatedly asked these questions, he stated that accused 2, 4 and
\n6 as the persons who dragged the deceased. Even this answer,
\nas noticed above was inconsistent with the version given by
\nPWs.2 and 4. Despite this the High Court preferred to accept
\nhis evidence in the examination in chief which on facts of the
\ncase is unsustainable.\n<\/p>\n
\tEvidence of PW-7 was rejected by the Sessions Court
\nholding that his version of the attack and dragging and attack on
\nMajeed, on the property of the 3rd accused was entirely different
\nfrom the version given by PWs. 2 and 4 to 7. The trial court had
\nobserved that his evidence is inconsistent, improbable and
\nunbelievable. We have perused the evidence and are in
\nagreement with the learned Sessions Judge and we think the
\nHigh Court was wrong in accepting a part of his evidence
\ninspite of noticing the discrepancy in his evidence regarding the
\ndragging of Majeed.\n<\/p>\n
\tThus, we find most of the reasons given by the High
\nCourt for rejecting the conclusions of the learned Sessions
\nJudge are unacceptable. At this juncture, we would like to bear
\nin mind the law laid down by this Court in regard to
\nreappreciation of evidence by the High Court in  appeal against
\nacquittals. This Court in Dhanna etc. v. State of M.P. [1996
\n(10) SCC 79] had laid down that though the High Court has full
\npower to review the evidence and to arrive at its own
\nindependent conclusion whether the appeal is against
\nconviction or acquittal. While doing so it ought to bear in mind
\n: first, that there is a general presumption in favour of the
\ninnocence of the person accused in criminal cases and that
\npresumption is only strengthened by the acquittal. Secondly, it
\nshould bear in mind that every accused is entitled to the benefit
\nof reasonable doubt regarding his guilt and when the trial court
\nacquitted him, he would retain that benefit in the appellate court
\nalso. Thus, the appellate court in appeals against acquittals has
\nto proceed more cautiously and only if there is absolute
\nassurance of the guilt of the accused, upon the evidence on
\nrecord, that the order of acquittal is liable to be interfered with
\nor disturbed.\n<\/p>\n
\tIn Shailendra Pratap & Anr. v. State of U.P.<\/a> (2003 (1)
\nSCC 761), this Court held : “It is well settled that the appellate
\ncourt would not be justified in interfering with the order of
\nacquittal unless the same is found to be perverse. In the present
\ncase, the High Court has committed an error in interfering with
\nthe order of acquittal of the appellants recorded by the trial
\ncourt as the same did not suffer from the vice of perversity.”
\nThe above principles have been consistently followed by this
\nCourt in a large number of cases. If we apply the said principle
\nto the facts of this case, we notice that the High Court in the
\ninstant case has not come to the conclusion that the finding of
\nthe Sessions Court was in any manner perverse or one that
\ncannot be arrived at by a reasonable person. Therefore, in our
\nopinion, assuming another view was   possible to be taken on
\nthe material on record, the High Court ought not to have
\nsubstituted its view in place of that of the Sessions Court, and
\nreverse an order of acquittal on such substituted view of its
\nown. At any rate, on the facts of this case, we have come to the
\nconclusion that the view taken by the learned Sessions Judge
\nwas the only possible view, hence, the High Court ought not to
\nhave interfered with the same. From the material on record, the
\ndefence has been able to establish that the prosecution case in
\nregard to the time and place of incident is highly doubtful even
\nthe evidence of the eye witnesses apart from being interested
\nwas full of contradictions and improbabilities based on which
\nno conviction could have been recorded against the appellants.
\nFor the reasons stated above, this appeal succeeds and the
\njudgment and conviction awarded to the appellants by the High
\nCourt is set aside. The appellants, if in custody, shall be
\nreleased forthwith, if not required in any other case.\n<\/p>\n
Crl. Appeal No\u2026\u2026\/2003 @ SLP (Crl.) No.6744 of 2001 :\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tFollowing the judgment delivered by us   in Criminal
\nAppeal No.1141\/2001, we allow this appeal, set aside the
\njudgment and the conviction awarded by the High Court. If the
\nappellant is in custody, he shall be released forthwith, if not
\nrequired in any other case.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kunju Muhammed @ Khumani & Anr vs State Of Kerala on 11 August, 2003 Author: S Hegde Bench: N. Santosh Hegde, B.P. Singh. CASE NO.: Appeal (crl.) 1141 of 2001 PETITIONER: Kunju Muhammed @ Khumani & Anr. RESPONDENT: State of Kerala DATE OF JUDGMENT: 11\/08\/2003 BENCH: N. Santosh Hegde & B.P. […]<\/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":[30],"tags":[],"class_list":["post-81921","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKunju Muhammed @ Khumani & Anr vs State Of Kerala on 11 August, 2003 - 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\/kunju-muhammed-khumani-anr-vs-state-of-kerala-on-11-august-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kunju Muhammed @ Khumani & Anr vs State Of Kerala on 11 August, 2003 - 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