Kerala High Court
Anilkumar @ Kunjumon @ Kuttiraman vs State Of Kerala on 30 August, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.A. Nos. 489 & 381 of 2017 :1: 2024:KER:65590 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V & THE HONOURABLE MR. JUSTICE G.GIRISH FRIDAY, THE 30TH DAY OF AUGUST 2024 / 8TH BHADRA, 1946 CRL.A NO. 489 OF 2017 AGAINST THE JUDGMENT DATED 28.02.2017 IN SC NO.37/2013 ON THE FILE OF ADDITIONAL SESSIONS JUDGE -III, KOLLAM APPELLANT/ACCUSED NO.2: 1 CHANDRA BABU @ BABU S/O. DIVAKARAN, CHITHI THEKKETHIL, NEAR TELEPHONE EXCHANGE, PAMPALIL CHERRY, PANAYAM VILLAGE, KOLLAM. (DIED) 2 SUPPLEMENTAL APPELLANT NO.2 : SREEJA M., AGED 55 YEARS W/O. LATE CHANDRA BABU D., VETTIYIL THEKKATHIL, PAMBALLIL, PERINADU P.O., KOLLAM, PIN - 691601. (IS SUO MOTU IMPLEADED AS PER ORDER DATED 05.10.2023 IN CRL.M.A.1/2023 IN CRL.A.489/2017) BY ADVS. SRI.C.PRATHAPACHANDRAN PILLAI SRI.N.ANAS SRI.R.SURAJ KUMAR SRI.V.K.UNNIKRISHNAN KOLLAM Crl.A. Nos. 489 & 381 of 2017 :2: 2024:KER:65590 RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM SMT. NEEMA T V, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING 30.08.2024, ALONG WITH CRL.A.381/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A. Nos. 489 & 381 of 2017 :3: 2024:KER:65590 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V & THE HONOURABLE MR. JUSTICE G.GIRISH FRIDAY, THE 30TH DAY OF AUGUST 2024 / 8TH BHADRA, 1946 CRL.A NO. 381 OF 2017 AGAINST THE JUDGMENT DATED 28.02.2017 IN SC NO.37/2013 ON THE FILE OF ADDITIONAL SESSIONS JUDGE -III, KOLLAM APPELLANTS/ACCUSED NOS. 1 & 3: 1 ANILKUMAR @ KUNJUMON @ KUTTIRAMAN, AGED 55 YEARS, S/O. SUDHAKARAN, ANIL BHAVAN, NEAR TELEPHONE EXCHANGE, PAMPALIL CHERRY, PANAYAM VILLAGE, KOLLAM DISTRICT - 691 601. 2 SANTHOSH AGED 45 YEARS, S/O. SASIDHARAN, SASIKALA BHAVAN, NENMENI, VADAKKEMURI, MANTROTHURUTH VILLAGE, KOLLAM DISTRICT - 691 502. BY ADVS. P.K.VARGHESE C.PRATHAPACHANDRAN PILLAI SMT.SINDHU K.S. SRI.VIMAL VIJAY V.RENJITH KUMAR M.T.SAMEER(K/3346/1999) DHANESH V.MADHAVAN(K/298/2006) Crl.A. Nos. 489 & 381 of 2017 :4: 2024:KER:65590 JERRY MATHEW(K/658/2015) DEEPA K.RADHAKRISHNAN(K/001131/2010) SOJAN K. VARGHESE(K/1611/2019) ARJUN KUMAR K.S.(K/1680/2019) REGHU SREEDHARAN(K/653/2020) RAMEEZ M. AZEEZ(K/001008/2022) NAMITHA K.S.(K/2262/2022) SUDARSANAN U.(K/2436/2022) ANU ASHOKAN(K/1343/2023) ATHUL.P(K/001590/2023) R.ROHITH(K/203/2011) RESPONDENT/COMPLAINANT: STATE OF KERALA (REP. BY THE CIRCLE INSPECTOR OF POLICE, KOLLAM WEST POLICE STATION - CR. NO. 612/2010 OF ANCHALUMMOODU POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031. SMT. NEEMA T.V, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 30.08.2024, ALONG WITH CRL.A.489/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A. Nos. 489 & 381 of 2017 :5: 2024:KER:65590 'CR' JUDGMENT
[CRL.A Nos.489/2017, 381/2017]
Raja Vijayaraghavan, J.
The above appeals have been preferred by the accused in S.C.No. 37 of
2013 on the file of the Additional Sessions Judge-III, Kollam. Crl.A.No. 489 of
2017 has been filed by the 2nd accused and Crl.A.No. 381 of 2017 has been
preferred by accused Nos. 1 and 3 in the above case. In the above case, the
appellants were charged for having committed offences punishable under
Sections 324, 341, and 302 r/w. Section 34 of the IPC. Though in the final
report, four persons were arrayed as accused, in the course of proceedings, the
4th accused passed away and the case against him stood abated.
2. Prosecution version:
a) The deceased, Shafi, was the brother of PW1, Ashraf. Ashraf operated
a bakery at Thannickal Mukku, while the deceased was an auto driver.
The 1st accused, Kunjumon, ran a shop at Vettiyil Mukku and also
owned a Jeep. The 2nd accused is his brother. A week before, on
10.06.2010, an incident occurred involving the Jeep driven by the 1st
Crl.A. Nos. 489 & 381 of 2017 :6: 2024:KER:65590
accused and the Sumo vehicle owned by PW1. The prosecution alleges
that the Jeep collided with the Sumo, causing damage. Immediately
following the incident at Thannickal Mukku, there was a wordy
altercation between the 1st accused and PW1, during which Shafi, who
was nearby, intervened.
b) On 10.06.2020, while PW1 was closing his bakery, the 1st accused
arrived on a scooter with his daughter as a pillion passenger at
Devarajan’s shop, located adjacent to PW1’s shop. PW1 called the 1st
accused and questioned why he had not taken steps to repair the car.
The 1st accused responded that if his younger brother apologized, he
might consider it. PW1 then suggested that he would come to the
house of the 1st accused to resolve the issue. After closing his shop,
PW1, accompanied by his auto driver Shihab and Sri. Biju, the driver of
the Sumo vehicle, went to the home of the 1st accused. The
prosecution alleges that upon their arrival, the 1st accused, enraged
by PW1’s audacity to visit his house, began throwing wooden blocks
from the rooftop. PW1 retreated and stood near the house of
Ayyappan Pillai, close to the road. While PW1 was engaged in
conversation, the 1st accused approached from behind and attacked
Crl.A. Nos. 489 & 381 of 2017 :7: 2024:KER:65590
him with a bamboo stick. A scuffle ensued, during which PW1 fell to
the ground. Shihab, Biju, and others intervened to rescue PW1. Biju
and Shihab were then asked to return to the house of PW1 in the
auto, while PW1 walked back. It is alleged that Shihab called PW1’s
brothers, including the deceased Shafi, Salim, and Wahid. While they
were conversing, Omanamma (PW5) advised them not to escalate the
situation and instead, report the matter to the police. Heeding her
advice, PW1, Shihab, and Biju proceeded to the Police Station in the
auto driven by Shafi.
c) As they turned the vehicle towards the west on reaching Vettiyil Mukku
to proceed to Thannickal Mukku, they noticed that the Jeep owned by
the 1st accused was parked on the eastern side of Kandachira
Alummoodu Road, facing south, with the engine on. Upon seeing the
auto, the Jeep was driven recklessly toward it, cornering the auto and
pushing it toward the house of Pachan Pillai, situated west of the 1st
accused’s shop and towards the southern side of Vettiyil Mukku –
Thannickal Mukku Road. The 1st accused, along with Babu (A2),
Santhosh (A3), and one Kannan (since deceased), were present. The
1st accused allegedly exhorted the others to kill. Shafi attempted to
Crl.A. Nos. 489 & 381 of 2017 :8: 2024:KER:65590
flee but was chased by the 1st accused and others. Babu and Kannan
restrained Shafi, while the 1st accused is alleged to have inflicted a
stab wound on Shafi’s abdomen, followed by two sub injuries inflicted
by the 3rd accused on his back. PW1, standing at a distance,
witnessed the entire incident, the place of occurrence being
illuminated by the light from Pachan Pillai’s shop and the streetlight.
The 1st accused lost his dhoti at the scene before the assailants fled in
the Jeep. The deceased was initially rushed to Martha Hospital at
Anchalummoodu, from where he was transferred to Sankers Hospital,
Kollam, where he was pronounced dead.
3. Registration of the crime and investigation:
At about 1:00 a.m., PW1 reported the incident at the Anchalummoodu
Police Station, leading to the registration of Crime No. 612 of 2020 for
offences punishable under Section 302 read with Section 34 of the IPC by
PW21, the Sub Inspector of Police. On the next day, the investigation was
taken over by PW22, the Circle Inspector of Police. The Officer concluded the
investigation and laid the final report before the Judicial Magistrate of the
First Class-I Kollam.
Crl.A. Nos. 489 & 381 of 2017 :9: 2024:KER:65590
4. Proceedings before the Court:
Committal proceedings were initiated and the case was numbered as
C.P.No.36 of 2012 by the learned Magistrate. On committal to the Court of
Session, the case was made over to the Additional Sessions Court where the
same was taken on file as S.C.No.37 of 2013. After hearing both sides, the
learned Sessions Judge framed charges under Sections 324, 341, and 302
r/w. Section 34 of the Indian Penal Code. The accused pleaded not guilty to
the charges and claimed to be tried.
5. Evidence tendered during trial:
The prosecution examined PWs 1 to 22 to prove its case and through
them, Exts.P1 to P33 were exhibited and marked. Material Objects were
produced and identified as MOs 1 to 6. After the close of the prosecution
evidence, the incriminating materials were put to the accused under Section
313 of the Cr.P.C. They emphatically denied the circumstances brought out
against them and maintained their innocence. On finding that the accused
could not be acquitted under Section 232 of the Cr.P.C., they were called
upon to enter their defence. On their side, DWs 1 to 5 were examined.
Crl.A. Nos. 489 & 381 of 2017 :10: 2024:KER:65590
6. Findings of the learned Sessions Judge:
a) PWs 1, 2, and 4 were treated as trustworthy witnesses. PW3, an
independent witness, who was cited to prove the incident was held to
be unreliable.
b) The recovery of MOs 1 and 2 weapons at the instance of accused Nos.
1 and 3 were held to be believable.
c) The court concluded that the prosecution has successfully proved that
accused Nos. 1 to 4 intercepted the auto rickshaw in which the
deceased, PW1 and others were traveling while the vehicle reached the
front of the house of Pachan Pillai and thereafter, the accused Nos. 1
and 3 inflicted stab injuries on the abdomen and the back of the chest
of the deceased.
7. The sentence imposed:
a) The accused were found guilty and were sentenced to undergo
imprisonment for life and to pay a fine of Rs.1,00,000/- each for the
offence under Section 302 r/w. Section 34 of the IPC and in default to
undergo simple imprisonment for a period of one year.
Crl.A. Nos. 489 & 381 of 2017 :11: 2024:KER:65590
b) For offence under Section 341 r/w. Section 34 of the IPC, the accused
were convicted and sentenced to undergo Simple Imprisonment for
one month.
8. The contention of the appellant:
a) Sri. Rohit, the learned counsel appearing for the appellants submitted
that the true version of the incident was not placed by the prosecution
before the Court of Session. No incident of the nature as alleged had
taken place in front of the residential home of Sri.Pachan Pillai. If the
version of PW1 is accepted, the 1st accused had inflicted a stab injury
on the abdomen of the deceased, and the small intestine was cut at
the root and his bowels had come out. However, not even a single
drop of blood was found anywhere near the place of the occurrence
either on the road in front of the house of Pachan Pillai or in the
courtyard of his house.
b) The learned Sessions Judge had erred in placing implicit reliance on
the evidence of PW1, who claimed that he was the one who along with
PW2, Shibu, had taken the injured to the Matha hospital and from
there, to Sankers Hospital, Kollam, which hospital facilitated fairly at a
Crl.A. Nos. 489 & 381 of 2017 :12: 2024:KER:65590distance from the scene of the crime, he was the person who had
gone to the Police Station at 1:00 a.m. and set the law in motion.
However, the prosecution has no case that there was blood on his
clothes. Neither the clothes worn by PW1 nor the auto in which he had
travelled with the injured to Matha Hospital was seized. This would
show that PW1 had no occasion to witness the incident and he was
made to state utter falsehood before the court. Furthermore, serious
omissions and contradictions were brought out from the evidence of
PW1 to discredit his testimony.
c) The learned Sessions Judge had erred in relying on the evidence of
PW2 as there were serious discrepancies between his evidence and
that of PW1. Furthermore, though PW1 was also present in the
autorickshaw along with PW1, he has no case that he had witnessed
the infliction of stab injury by the 1st accused on the deceased.
d) Though PW12, son of Pachan Pillai, was examined to prove that there
was the presence of light in and around the scene of the crime, he did
not support the case of the prosecution.
e) The evidence let in by the prosecution to prove the recovery of the
weapons used for the commission of the offence allegedly at the
Crl.A. Nos. 489 & 381 of 2017 :13: 2024:KER:65590
instance of the accused is totally unreliable. However, the learned
Sessions Judge relied on the same to arrive at the finding of guilt.
f) The wife and daughter of the 1st accused were cited as CWs 25 and
26. However, they were given up by the prosecution. The defence
examined them as DWs 1 and 2, to prove the version of the defence.
However, the learned Sessions Judge did not give due weightage to
their evidence.
9. Submissions made by the learned Public Prosecutor:
Smt. Neema, the learned Public Prosecutor pointed out that PWs 1, 2,
and 4 are reliable witnesses, whose evidence gave a clear picture as to what
had transpired on 10.06.2010 in front of the house of Sri. Pachan Pillai. The
learned Sessions Judge has also taken note of the medical as well as
scientific evidence to come to the conclusion that the prosecution has proved
its case beyond the shadow of a doubt. The recovery of weapons at the
instance of the accused led credence to the prosecution case. It is submitted
that the prosecution is not required to meet each and every hypothesis put
forward by the accused. Relying on the observations in Sahabrao Bobade
v. State of Maharashtra1, it is submitted that the Apex Court has
1
[1974 (1) SCR 489]
Crl.A. Nos. 489 & 381 of 2017 :14: 2024:KER:65590deprecated the exaggerated devotion to the rule of benefit of the doubt at
the expense of social defence and to the soothing sentiment that all
acquittals are always good regardless of justice to the victim and the
community. It is further submitted that mere marginal variations in the
statements of a witness cannot be dubbed as improvements as the same may
be elaborations of the statement made by the witness earlier. Only those
omissions which amount to contradictions in material particulars, i.e., go to
the root of the case/materially affect the trial or core of the prosecution’s
case would render the testimony of the witness unreliable. According to the
learned Public Prosecutor, the learned Sessions Judge has evaluated the
evidence in meticulous detail and has arrived at the finding of guilt.
10. Guiding principles:
a) Before we proceed to evaluate the evidence in this case, it needs to be
borne in mind that in a murder trial when an accused person stands
charged with the commission of an offence punishable under Section
302, he stands the risk of being subjected to the highest penalty
prescribed by the Indian Penal Code; and naturally, judicial approach
in dealing with such cases has to be cautious, circumspect and careful.
In dealing with such appeals where the question of confirming life
Crl.A. Nos. 489 & 381 of 2017 :15: 2024:KER:65590
imprisonment imposed against individuals for their participation in the
murder of a person is involved, this Court has to deal with the matter
carefully and examine all relevant and material circumstances before
upholding the conviction and sentence. It also needs to be borne in
mind that while appreciating the evidence of a witness, minor
discrepancies on trivial matters without affecting the core of the
prosecution case, ought not to prompt the court to reject evidence in
its entirety. If the general tenor of the evidence given by the witness
and the trial court upon appreciation of the evidence forms an opinion
about the credibility thereof, in normal circumstances the appellate
court would not be justified to review it once again without justifiable
reasons. (See: State Of U.P v. M.K Anthony.2; Leela Ram v.
State of Haryana3). It is also trite that when an eyewitness is
examined at length it is quite possible for him to make some
discrepancies. No true witness can possibly escape from making some
discrepant details. Perhaps an untrue witness who is well tutored can
successfully make his testimony totally non-discrepant. But courts
should bear in mind that it is only when discrepancies in the evidence
2
[(1985) 1 SCC 505]
3
(1999) 9 SCC 525)
Crl.A. Nos. 489 & 381 of 2017 :16: 2024:KER:65590
of a witness are so incompatible with the credibility of his version that
the court is justified in jettisoning his evidence. But too serious a view
to be adopted on mere variations falling in the narration of an incident
(either as between the evidence of two witnesses or as between two
statements of the same witness) is an unrealistic approach for judicial
scrutiny. It is equally settled law that the evidence of a hostile witness
would not be totally rejected if spoken in favour of the prosecution or
the accused, but it can be subjected to close scrutiny and that portion
of the evidence which is consistent with the case of the prosecution or
defence may be accepted. (See: State of U.P V. Ramesh Prasad
Misra4). In Dudh Nath Pandey vs State of U.P.5 and State of
Haryana Vs Ram Singh6, it has been held that the evidence of
defence witnesses has to be treated at par with that of the prosecution
witnesses and a Court should not proceed on the premises that it is a
tainted one. True it is, that the standard of proof prescribed for the
prosecution in a criminal trial is not applicable in assessing the defence
evidence. However, if on consideration of the evidence on record, the
testimony of the defence witness does not appear to fit in with the
4
(1996) 10 SCC 360
5
(AIR 1981 SC 911)
6
(2002) 2 SCC 426)
Crl.A. Nos. 489 & 381 of 2017 :17: 2024:KER:65590
facts and circumstances of the case, the same has to be rejected.
b) In Himachal Pradesh Administration v. Shri Om Prakash7, the
Apex Court while delineating the principles that are to be borne in
mind by the Court while appreciating the evidence of witnesses who
have deposed against the accused who has been charged of murder
had this to say in paragraph No. 7 of the judgment, which reads as
under:
7. While it is not the function of this Court to determine who other
than the person who has been charged with the murder had
committed it, the line which the defence adopted was to establish
that the witnesses referred to above had an interest in implicating
the accused or at any rate to create uncertainty and doubt sufficient
to give the benefit to the accused. It is not beyond the ken of
experienced able and astute lawyers to raise doubts and
uncertainties in respect of the prosecution evidence either during
trial by cross-examination or by the marshalling of that evidence in
the manner in which the emphasis is placed thereon. But what has
to be borne in mind is that the penumbra of uncertainty in the
evidence before a court is generally due to the nature and quality of
that evidence. It may be the witnesses as are lying or where they
are honest and truthful, they are not certain. It is therefore, difficult
to expect a scientific or mathematical exactitude while dealing with
such evidence or arriving at a true conclusion. Because of these
difficulties corroboration is sought wherever possible and the maxim
that the accused should be given the benefit of doubt becomes7
[(1972) 1 SCC 249]
Crl.A. Nos. 489 & 381 of 2017 :18: 2024:KER:65590pivotal in the prosecution of offenders which in other words means
that the prosecution must prove its case against an accused beyond
reasonable doubt by a sufficiency of credible evidence. The benefit
of doubt to which the accused is entitled is reasonable doubt — the
doubt which rational thinking men will reasonably, honestly and
conscientiously entertain and not the doubt of a timid mind which
fights shy — though unwittingly it may be — or is afraid of the
logical consequences, if that benefit was not given. Or as one great
Judge said it is “not the doubt of a vacillating mind that has not the
moral courage to decide but shelters itself in a vain and idle
skepticism”. It does not mean that the evidence must be so strong
as to exclude even a remote possibility that the accused could not
have committed the offence. If that were so the law would fail to
protect society as in no case can such a possibility be excluded. It
will give room for fanciful conjectures or untenable doubts and will
result in deflecting the course of justice if not thwarting it
altogether. It is for this reason the phrase has been criticized. Lord
Goddard, C.J, in Rox v. Kritz, said that when in explaining to the
juries what the prosecution has to establish a Judge begins to use
the words “reasonable doubt” and to try to explain what is a
reasonable doubt and what is not, he is much more likely to
confuse the jury than if he tells them in plain language. “It is the
duty of the prosecution to satisfy you of the prisoner’s guilt”. What
in effect this approach amounts to is that the greatest possible care
should be taken by the Court in convicting an accused who is
presumed to be innocent till the contrary is clearly established
which burden is always in the accusatory system, on the
prosecution. The mere fact that there is only a remote possibility in
favour of the accused is itself sufficient to establish the case beyond
reasonable doubt. This then is the approach. (emphasis supplied)
Crl.A. Nos. 489 & 381 of 2017 :19: 2024:KER:65590With the above guiding principles in mind, we shall evaluate the
evidence.
11. Cause of death:
It is not disputed that the death of Muhammed Shafi was a case of
homicide. Ext.P15 postmortem certificate issued by PW18, the Assistant
Surgeon and Forensic Surgeon, discloses that 19 antemortem injuries were
found in the body of deceased Muhammed Shafi. Injury Nos.1 and 2 were
deep incised penetrative wounds on the right side and left side of the back of
the chest. Injury No. 3 was an incised penetrative wound obliquely placed on
the left side of the front of the abdomen. The doctor has also given evidence
that death was due to penetrating injuries sustained to the chest and
abdomen and that they were independently sufficient in the ordinary course
of nature to cause death.
12. Evidence adduced by the prosecution to prove the incident:
a) PW1 is the key witness for the prosecution. He testified before the
court that, several days prior to the incident, the 1st accused (A1)
collided his jeep with PW1’s Sumo car, causing damage. A1 promised
to repair the vehicle but did not do anything thereafter. On
Crl.A. Nos. 489 & 381 of 2017 :20: 2024:KER:6559008.06.2010, A1, accompanied by his daughter, arrived at Thannickal
Mukku junction. PW1 demanded that his vehicle be repaired. In
response, A1 stated that those who had insulted him should publicly
apologize, and invited PW1 to his house for further discussion. Later
that day, PW1, along with PW2 and CW2, went to A1’s house in an
autorickshaw. Since the road leading to A1’s house was not motorable,
PW2 and CW2 stayed with the auto rickshaw at Vettiyilmukku, while
PW1 walked to A1’s house. Upon ringing the bell, A1’s daughter (DW2)
informed him that A1 was not at home. As PW1 was leaving, A1 threw
wooden blocks from the terrace of the house. PW1 ran towards
Ayyappan Pillai’s house to escape. While conversing with the people
there, A1 approached from behind and struck him on the back with a
bamboo stick. A scuffle ensued, causing PW1 to fall. PW2, CW2, and
others intervened and separated them. PW1 then instructed Biju and
Shihab to take the auto rickshaw back to his house, while he chose to
walk home. It was drizzling at the time. As he walked back, PW1
stopped at the house of Omanamma (PW5) and conversed with her.
Meanwhile, PW2 informed PW1’s younger brothers – Mohammed Shafi
(the deceased), Salim, and Wahid – about the earlier incident. They
arrived at PW1’s house and then came to meet him at Omanamma’s
Crl.A. Nos. 489 & 381 of 2017 :21: 2024:KER:65590
house. PW5 advised them not to escalate the situation and suggested
they go to the police station to lodge a complaint. Following her
advice, PW1, Biju, and Shihab proceeded to the Police Station in an
auto rickshaw driven by Shafi, heading in the direction of Thannickal
Mukku. A1’s shop is located at the western corner of Vettiyil Mukku. As
they reached Vettiyil Mukku and continued westward, they observed a
jeep parked on the side of the road facing south, with the engine
running and headlights on. Upon seeing their autorickshaw, the jeep
was driven towards them recklessly, forcing the autorickshaw to
swerve into the courtyard of Pachan Pillai’s house. A1 jumped out of
the jeep holding a knife, followed by Babu (A2), Santhosh (A3), and
Biju, all armed with weapons. A1 urged the others to kill. PW1 and the
others fled in different directions. Shafi ran but was chased by A1 and
the others. A2 and A4 restrained Shafi while A1 drew a knife and
stabbed him in the lower abdomen. When asked specifically whether
the weapon was a dagger or a knife, the witness confirmed it was a
knife. A3, Santhosh, inflicted stab wounds on Shafi’s back and chest.
As Shafi fell, additional stab wounds were inflicted on his knee and
back, causing his intestines to protrude from the abdominal wound.
PW1 and the others hid behind a coconut tree, witnessing the assault
Crl.A. Nos. 489 & 381 of 2017 :22: 2024:KER:65590
by the light from a street lamp and a tube light from Pachan Pillai’s
house. After the attack, A1 fled the scene in his jeep, leaving behind
his dhoti, which had come off during the altercation. Shafi was
immediately transported to Matha Hospital in the same autorickshaw.
The doctor at Matha Hospital suggested that the injured be transferred
to Sankers Hospital. An ambulance was summoned, and Shafi was
taken to Sankers Hospital, where he was pronounced dead. His body
was subsequently taken to the District Hospital in Kollam. PW1 then
went to the Police Station and lodged Ext.P1 statement, on the basis
of which the crime was registered. During cross-examination, he
stated that he did not state before the police that the incident had
taken place on the road, in front of the house of Pachan Pillai. He
stated that he had not changed the place of occurrence from in front
of the road to the courtyard of the house of Pillai. He stated that he
had not lodged any complaint before the police for assault by A1. He
also did not secure any treatment for the same. He stated that he
witnessed the incident by hiding behind a coconut palm. He stated
that the injured was examined by Dr. Shaji at Matha Hospital, where
he was initially taken. The details were provided by PW1. He denied
that he had attacked A1 when he had come to Devarajan’s shop with
Crl.A. Nos. 489 & 381 of 2017 :23: 2024:KER:65590
his daughter. Ext.D2 contradiction was marked, wherein, PW1 denied
that he had stated to A1 that it would not be proper to have a
conversation there and said he would come to the house of A1 later in
the evening. He denied that he had stabbed A1’s dog. He denied that
PW1, his brothers, and his employees were the actual aggressors. He
denied that he had changed the place of occurrence to substantiate
that there was light near the place where the incident had occurred.
He denied that he had failed to state in Ext.P1 that the entire incident
had taken place in the courtyard of the house of Pachan Pillai. He
stated that A1’s house is just 100 meters away from Omana Amma’s
House. He denied that he had not given a statement to the police that
he and others had hidden behind the jeep and had witnessed the
incident. He asserted in cross-examination that the incident had
happened in the courtyard of the house of Pillai. He further stated in
cross-examination that he had initially taken the injured to the hospital
and then to the Police Station. According to him, Shafi was lying on his
lap, while he was being taken to the hospital. When he was asked as
to the absence of blood in his clothes and the absence of any
reference of blood either on his body or on his clothes in the FI
Statement, he pleaded ignorance. He denied the suggestion of the
Crl.A. Nos. 489 & 381 of 2017 :24: 2024:KER:65590
defence that he was not present at the scene of the crime. The
defence was able to bring out D1 to D4 contradictions, from the
evidence tendered by PW1.
b) Shibu @ Shihabudeen is the Auto Driver of PW1. He stated that on
10.06.2010, at about 10:30 p.m., he went to PW1’s Bakery to settle
the payment and to park the vehicle. He was told by PW1 that they
needed to go to the house of Kunjumon (A1), to get some payment.
He also spoke about the collision between the vehicles. He along with
PW1, Biju (PW2), went to the house of A1 in the autorickshaw. The
vehicle was parked by the roadside and PW1 walked to the house of
A1. After some time, he saw PW1 running towards him and A1
following close behind with a stick in his hand. There occurred a
skirmish in front of the house situated on the roadside. They
intervened and separated them. A lot of people assembled at the spot.
Later, PW1 asked him to park the vehicle at his house. He went to
PW1’s house, called Shafi, and informed him about the incident. Shafi,
Salim, and Wahid immediately came to the house of PW1 in an Auto.
They all went to meet PW1, who was standing with Omana Amma,
who told them to go and lodge a complaint before the Police Station.
Crl.A. Nos. 489 & 381 of 2017 :25: 2024:KER:65590
In the Auto driven by Shafi, PW1, PW2, Sharaf and Ashraf proceeded
to the Police Station. When they turned towards the west at Vettiyill
Mukku, the jeep driven by A1 came at a great speed and cornered the
autorickshaw. There were four persons inside the jeep, and A1 and A3
got out initially. There occurred a brawl between Shafi on one side,
and A1 and A3 on the other side. Immediately, the others came out of
the jeep. They were armed with knives. On seeing the aggressors,
PW2 and others took to their heels and hid themselves. Then, A3
inflicted a stab injury on Shafi. To a pointed question put by the
Prosecutor as to whether A1 had stabbed Shafi, the witness answered
in the affirmative. However, he added that he did not witness, A1
inflicting any injury on the deceased. He stated that the intestine of
Shafi protruded outside, consequent to the stab injury inflicted on the
abdomen. However, he heard the deceased crying out that he was
stabbed by A1. He stated that there was a presence of light in the
area, enabling him to witness the incident. After the incident, the
accused left in the jeep. They lifted Shafi and took him to Matha
Hospital initially and then to Sankar’s Hospital. He stated that there
was blood on his clothes, which was entrusted to the police. He
identified MOs 1 and 2 knives, allegedly used by A1 and A3 for
Crl.A. Nos. 489 & 381 of 2017 :26: 2024:KER:65590
inflicting the injuries. He stated that the larger among MO1 and MO2
was used by A3. He also identified MO4 Dhoti and MO5 Kaily worn by
A1 at the time of the incident. In cross-examination, he spoke about
the previous incident, involving the collision of vehicles of A1 and PW1.
It was brought out in cross-examination that in his previous statement
to police, he never mentioned that Shafi, after receiving the stab
injury, yelled that A1 had stabbed him. He denied that PW1 and others
had gone to the house of A1, late in the night, demanding money and
that, an incident had occurred in and around the house of A1, and in
the melee that followed, some injury was sustained by Shafi. The
defence was able to bring out D5 to D9 contradictions in the evidence
tendered by PW2. D7 to D9 contradictions refer to the earlier
statements given by the witness to the police, wherein, he mentioned
the aggressive stand taken by PW1 and Shafi, consequent to the
motor accident. However, he denied the earlier statements.
c) PW3 Kareemkutty, is another witness cited by the prosecution to prove
the incident. He stated that he had witnessed the incident that took
place at 10:30 p.m., on 10.06.2010. According to him, the incident
took place in the courtyard of the house, owned by Pillai. According to
Crl.A. Nos. 489 & 381 of 2017 :27: 2024:KER:65590
him, Pillai’s house is situated on the western side of A1’s shop. He
came to meet A1, to take on rent the concrete mixer owned by A1.
Earlier in the day, he had gone to meet A1. However, A1’s wife told
him that he had gone out with his daughter. At about 10:00 p.m. on
the same day, he again went to meet A1. He found that a jeep was
parked on the side of the road, on the southern side of the shop. He
also found accused Nos. 1 to 4 coming out from the direction of
Kunjumon’s house. A1 and A3 had weapons in their hand. They were
loudly blurting out abusive words. Seeing them in a bad mood, PW3
chose not to request the concrete mixer. While he was standing there,
an autorickshaw came from the south towards the north, and it turned
towards the west at Vettiyil Mukku. The jeep, which was parked on the
opposite side, was driven parallel to the auto, and the auto was forced
to turn left into the courtyard of the property of Pillai. The people who
were inside the Auto got out initially. Immediately, the people who
were inside the jeep jumped out. They restrained one person and A1
inflicted a stab with a pointed weapon on the left side of the abdomen.
The injured yelled that Kunjumon had stabbed him. When Shafi bent
down, A3 inflicted multiple stab injuries on the backside. The other
two persons who were with the assailants physically attacked Shafi,
Crl.A. Nos. 489 & 381 of 2017 :28: 2024:KER:65590
who was lying on the ground. After inflicting injuries, the accused got
into the jeep and left the spot. The witness went near the injured and
found that it was Shafi. His brothers came and took him to the
hospital. He stated that he was having acquaintance with all the
accused. He stated that the police had arrived at the spot about 10 to
20 minutes after the incident. He stated that he had disclosed the
incident to the police only on 12.06.2010, though he is a relative of
PW1. According to him, he had the mobile phone number of A1. He
stated that he had stood on the southern side of the shop room of A1.
To a pointed question that he would not be in a position to witness the
incident while standing in that place, he denied the same. He also
denied the suggestion that he was stating falsehood, without being
present at the time and place. Several material omissions were
brought out while cross-examining the witness, including the fact that
the jeep and the auto had travelled parallel to each other, that the
occupants inside the autorickshaw had jumped out first, that the
smaller among the weapons were in the hands of A1, and that injured
had called out the name of A1, after sustaining the injury. The
improbability of the witness, coming to the house of A1 at 10:00 p.m.,
particularly when he had his mobile number and his act of hiding
Crl.A. Nos. 489 & 381 of 2017 :29: 2024:KER:65590
behind the shop of A1 to enable him to witness the incident, the long
delay in furnishing the statement to the police, despite being a near
relative of the deceased were all brought out by the defence while
cross-examining the witness. The learned Sessions Judge chose to
reject his evidence as he was found to be untrustworthy.
d) PW4 is one Abdul Salim, the younger brother of PW1. He is an
autorickshaw driver. He stated that on 07.06.2010, at about 3:30 p.m.,
he witnessed the incident wherein, the jeep of the 1st accused dashed
onto the right bumper and indicator light of the Sumo Car, owned by
PW1. He stated that there occurred a wordy altercation between PW1
and A1. On 08.06.2010, while the witness was in the Autorichaw
Stand, CW2 Biju asked A1, why he was not carrying out the repair
works. A1 stated to him that the persons who abused him were to
apologize, he would consider the same. At that time, Shafi was there.
Shafi went and talked to A1, and this led to an altercation. On
10.06.2010, at about 8:30 p.m., after parking his vehicle, he went to
the shop of PW1. A1 along with his daughter came to the adjacent
shop. When PW1 again asked when the vehicle would be repaired, A1
invited him to his house. Later in the evening, Shafi along with Wahid,
Crl.A. Nos. 489 & 381 of 2017 :30: 2024:KER:65590
came to his house and told him that some incident took place between
PW1 and A1, and requested that he also come along. They went to
the house of PW1 and found that CW2 and PW2 were there. In the
same autorickshaw, they all went towards the road and found PW1
talking to Omana Amma. All of them got down. Omana Amma then
told them to go to the police and lodge a complaint. PW4 and Wahid
got down from the vehicle, and PW1, Shafi, PW2, and CW2 proceeded
to the Police Station. Shafi was driving the vehicle. While the witness
and Wahid were proceeding to the house of PW1, they heard the
sound of an accelerating jeep and they ran back. Then they heard
Shafi screaming that he was stabbed by A1. The accused got into the
jeep and drove off. A1 was found driving the jeep. PW4 pushed the
auto, which was lying on the property of Pillai to the road. By that
time, PW1 and Shibu lifted up the injured and laid him on the
autorickshaw. The witness drove the autorickshaw and took the
injured to the Matha Hospital. Since there was no facility to provide
oxygen, the body was shifted to an ambulance and it was rushed to
Sankar’s Hospital, where the Doctor examined and pronounced the
injured dead. He stated that he had seen all the accused immediately
after the incident and that he had previous acquaintance with all of
Crl.A. Nos. 489 & 381 of 2017 :31: 2024:KER:65590
them. He also spoke about the presence of light, which emanated from
the tube light placed in front of Pillai’s house. In cross-examination,
PW4 stated that he had five brothers, out of which four were present
in and around the place where the incident had taken place. He
admitted that he had given the statement to the police only about 3-4
days after the incident. When he was asked why he had not stated to
the police that he had occasioned to witness the incident, he had no
answer to offer. To a pointed question of whether there was the
presence of blood in and around the scene of the crime, he stated that
there might have been the presence of blood. Numerous omissions
were brought out from his evidence as well. To a pointed question that
the brothers led by PW1 and their employees, had attempted to attack
A1 and that in the melee that followed, the injury was sustained by
Shafi, the witness answered in the negative. He stated that there was
no blood in his clothes and that he was driving the autorickshaw
owned by Shafi.
e) PW5 is Omana Amma. She was examined to prove that she advised
PW1 and Shafi to go to the Police Station and lodge a complaint,
instead of taking revenge on A1 for assaulting PW1. Ext-D11
Crl.A. Nos. 489 & 381 of 2017 :32: 2024:KER:65590
contradiction was brought out in her evidence to the effect that, in her
previous statement, she stated that the brothers of PW1 were in an
agitated state. She denied the same.
f) PW6 Sreedharan was examined to prove that there was a wordy
altercation between Shafi and A1 at Thannickal Mukku Junction and
that they were separated by people who were present there, including
PW6.
g) PW7 is the attester to the inquest, and PW8 is the attester to P5
Mahazar, prepared at the time of the seizure of the jeep and shirt. In
cross-examination, it was brought out that PW8 was a relative of A1.
PW9 is the attester to the scene mahazar. PW10 is the attester to P8
Mahazar prepared at the time of the seizure of sandals, two buttons,
two Kailys, and some sand from the property of Pillai. PW11 is the
attester to P9 Mahazar prepared at the time of seizure of MO2 knife,
shirt, and Kaily, used and worn by A3, at the time of occurrence. He
stated that he was residing about two kilometers away, and when he
reached there, about 25 people had already assembled at the spot. He
was asked to put in a signature and duly obliged.
h) PW12 is one Somarajan Pillai, who is the son of Pachan Pillai. He
Crl.A. Nos. 489 & 381 of 2017 :33: 2024:KER:65590
stated that he was aware of the incident which took place in front of
his house. However, he asserted that the incident took place on the
road and not in the courtyard of his house. According to him, the
police knocked on his door at 11.30 and he was asked to sign on a
blank paper. He stated that some sandals, buttons and a mobile phone
was found in front of his house and the police seized the same. He did
not support the prosecution and hence permission was sought to put
leading questions which was allowed by the court. He however stated
that there is no tube light in front of his house. He stated that a
person standing on the southern side of A1’s shop will not be able to
see the happenings in the northern courtyard of his house. He also
stated that there is a fence on the eastern side and trees have been
planted there.
i) PW13 is the Village officer who prepared Exhibit P10 plan. She stated
that since there was no mention of electric post in the mahazar
prepared by the Investigating officer, she did not note the same in the
plan.
j) PW14 is the attestor to Exhibit P11 recovery mahazar prepared at the
time of seizure of MO1 knife at the instance of A1. He stated that he
Crl.A. Nos. 489 & 381 of 2017 :34: 2024:KER:65590
is an auto driver by profession and saw an assembly of persons
standing near a transformer. He saw a person taking out a knife and
stated that the said person was A1. In cross-examination, he stated
that he is residing about 22 km away from the place from which the
weapon was recovered.
k) PW16 was examined to prove that there was no disruption of
electricity supply on 10.6.2010 in and around 10.30 p.m. on the said
day in the Vettiyil Mukku Area. He stated that the letter handed over to
the investigating officer was prepared after perusing the complaint
register, which alone was available. He did not have any occasion to
peruse the relevant registers maintained at the Kundara Sub Station.
l) PW19 is the Sub Inspector of Police, Anchallummoodu Police Station,
who registered Exhibit P19 FIR in crime No 612/2010 based on
information furnished by PW1. He admitted that in the FI statement,
it was stated by PW1 that the incident had taken place on the road in
front of the house of Pillai. Several omissions which were brought out
from the statement of PW1 were put to him. He stated that PW1 did
not state to him that any incident had taken place in the courtyard of
the house of Pillai. He also stated that PW1 in his initial statement did
Crl.A. Nos. 489 & 381 of 2017 :35: 2024:KER:65590
not mention that the deceased had cried out that A1 had stabbed him.
m) The investigating officer was examined as PW 22. He detailed the
steps taken by him during the investigation which culminated in the
filing of the final report. He stated that separate mahazars were
prepared of the place wherein the first incident took place in front of
the shop of Ayyappan Pillai and also of the place where injuries were
inflicted by the accused on Shafi. On 12.06.2010, he submitted a
report before the jurisdictional Court furnishing the names of the
accused involved in the crime. He also seized the material objects
which were found at the scene of the crime. A1 was arrested on
12.06.2010 and based on the disclosure statement furnished by him,
the Jeep used by him to reach the scene of the crime and also the
shirt worn by him which was kept in the Jeep, were seized from the
parking area at Anchallumoodu. On the same day itself, the shirt and
kaily worn by the A2 were seized from his home. On 13.06.2010,
based on the confessional statement given by A3, MO2 knife was
seized from an almirah inside his residential home. He seized the
dhoti worn by PW2 Shihabudeen on the strength of a Mahazar
prepared on 16.6.2010 as it was worn by him at the time of shifting
Crl.A. Nos. 489 & 381 of 2017 :36: 2024:KER:65590
the deceased to the hospital. The custody of A1 was again obtained on
24.06.2010 and based on the statement furnished by him, MO1 knife
was seized in the presence of witnesses on 25.06.2010. In his
cross-examination, he stated that as per the FI statement, the incident
had taken place on the road. Though A1 was arrested on 12.06.2010,
his police custody was again sought on 24.6.2010 and it was while in
custody that the disclosure statement leading to the recovery of MO1
weapon was made consequent to which recovery was effected on
24.06.2010. He admitted that the relevant portion of the disclosure
made by the accused has not been extracted as such in the mahazar.
He stated that he had not perused the report of the serologist before
submitting the final report before the court. The mobile that was
seized from the place of occurrence is that of A1 according to him.
However, the call details were not perused to fix the identity. To the
question put by the defense that the incident had occurred near the
shop of A1 in the dead of night when PW1 and his brothers went there
to demand money, PW22 responded by saying that no such incident
had occurred. He also denied that the true genesis of the incident was
suppressed by the prosecution. The contradictions and omissions
brought out from the evidence of witnesses were put to the
Crl.A. Nos. 489 & 381 of 2017 :37: 2024:KER:65590
investigating officer. He was also asked why the doctors at the Matha
Hospital and Sanker’s Hospital, who had seen the injured immediately
after the incident were not cited as a witness or examined.
13. The case of the defence pleaded by the 1st accused during his
examination under S.313(1)(b) of CrPC was as under:
a) A1 stated that he was falsely implicated in the case. According to him,
he took his daughter to meet the doctor and when he returned got
down at Devarajan’s shop to buy bread. PW1 and his henchmen came
towards him and took out the key of his bike and behaved in a hostile
manner towards him. This is consequence of an incident involving the
collision of vehicles of PW1 and A1. PW1 also abused him and pulled
out his dhoti. Local people intervened and helped A1 to leave the area.
He went back home. Later, PW1 and several others came to his home
late in the night and rang the bell. They stabbed the dog and
committed mischief there. The neighbors got together and asked PW1
and others to leave. Later, his family members persuaded A2 to come
with him to lodge a complaint before the Police. When A2 attempted to
go with A1, he was assaulted by a group of persons who came in an
auto. A1 went to the police station and lodged his complaint. He was
Crl.A. Nos. 489 & 381 of 2017 :38: 2024:KER:65590
asked to give a written complaint. He then requested a local
Panchayath Member(DW3) to lodge the complaint before the police.
They were advised to go to the hospital. While they were leaving, the
policemen told him that some issue had happened and asked him to be
at the police station itself. Since he was tired, he dozed off. At about
12-1.00 am he was woken up and it was then that he heard about the
incident.
b) A2 stated that he was an auto driver. On 10.6.2010, while he was at
home late in the evening, DW2 Anila, the daughter of A1 came to his
house and requested his assistance to go with her father to the police
station to lodge a complaint. While they were on their way to the
station in the Jeep, their vehicle was intercepted by an auto, and
several people jumped out with weapons. Another auto came from
behind. Sensing danger he took to his heels. He stated that he had
nothing to do with the murder of Shafi.
c) A3 reiterated that he is innocent.
14. Evidence adduced by the defence:
a) Smt. Ajitha, w/o Anil Kumar, was examined as DW1. She stated that
Crl.A. Nos. 489 & 381 of 2017 :39: 2024:KER:65590Anila is her daughter. A2 Chandrababu is related to her. On 10.6.2010,
when she reached home, she found that her daughter was having a
fever. A1 took his daughter to Mangalodayam Hospital to get medicine.
When they returned back home, her husband and daughter told her
that he was beaten up by PW1 and his brothers when they went to
Thannickal Mukku Junction to buy bread. While so, someone knocked
on the door of her home and started abusing A1. They closed the door
and stayed together. When they looked out through the ventilator, she
found PW1 standing outside brandishing a knife. Some others were
standing with him armed with sticks and knives. She stated that MO2
knife was held by PW1. Their dog barked at the intruders and later she
heard her dog scream and then his barking stopped. They threatened
the members of the family and then went back. Her husband hid
himself under the bed. She requested A1 to call A2, who was residing
nearby so that they could go to the police station and lodge a
complaint. DW1 and her daughter went to A2’s house and requested
his assistance. A2 refused to come. However, his ailing mother asked
him to help DW1 and 2. A2 along with A1 then went out to lodge a
complaint before the police. Later, the police came and informed that
some incident had happened. DW1 went to the police station with
Crl.A. Nos. 489 & 381 of 2017 :40: 2024:KER:65590
Jayakumar and found that her husband was there at the station.
b) DW2 is Anila, the daughter of DW1 and A1. She reiterated what was
spoken to by DW1. She stated that she was sick on 10.6.2010 and after
seeing the doctor went to buy bread. PW1 and 6 others approached
them and took out the key of her father’s scooter. They snatched his
dhoti as well. PW1 took a peduncle and attacked her father with the
same. She was 16 years old then and was frightened by the melee that
took place there. People who had assembled there got the key back
from Ashraf and handed it back. The above incident occurred at 9:00
am. They went back home thereafter. At about 9:30/9:45 p.m., they
heard a commotion outside. A table was pushed against the front door
as an additional safety measure. When her father looked outside
through the ventilator, Asharaf was found standing outside with a few
others and they were all armed with weapons. Their dog stopped
barking all of a sudden. Later, the armed assailants left the place. When
they came out, she found that the dog was lying dead outside. DW1
told her father that the assailants had destroyed the mixer machine.
She went to the neighboring house of A2 to persuade him to go with
A1 to the police station. While so, Biju, an employee of A1, came and
Crl.A. Nos. 489 & 381 of 2017 :41: 2024:KER:65590
they all went to the police station to lodge the complaint. The witness
was cross-examined in detail by the defence.
c) DW3 was then a member of the Thrikkaruva Grama Panchayath. He
gave evidence that on 10.6.2010, A1 and others came to his house and
sought his assistance to lodge a complaint before the Police. He went
with them and as suggested by the officer, a written complaint was
submitted. He was cross-examined and it was brought out that he was
having long acquaintance with A1.
d) DW4 Rajendra Prasad, is an immediate neigbour of A1. He stated that
on 10.06.2010, while he was having dinner, he heard loud exhortations
and a dog barking from the house of A1. When he went to enquire, he
found that PW1 was standing outside A1’s house after stabbing A1’s
dog and killing the animal. He intervened and persuaded PW1 and
others to leave by assuring that the issues could be settled the next
day. Thereafter, A1 came out from his house. DW1 went to the house
of A2 and he along with A1 went to the police station to lodge the
complaint. When they came near to the house of Ayyappan Pillai, near
to the junction, Ashraf and his brothers were present there. One young
man who was with PW1 called Shafi, who was standing nearby. Anil
Crl.A. Nos. 489 & 381 of 2017 :42: 2024:KER:65590
went to pick up his Jeep which was parked nearby. By that time, Shafi
and four others came there in an autorickshaw and blocked the Jeep.
A1 took his vehicle forward and pushed aside the Auto with the Jeep
and drove off toward the west. A fight ensued between both factions
thereafter. It was drizzling then and there was no electricity supply in
the area.
e) DW5 Anil Kumar is another neighbor of A1 who spoke in the same lines
as DW4.
15. Evaluation of the evidence:
a) On an evaluation of the entire evidence, as well as the court charge, it
can be seen that the prosecution is attempting to bring home the
charge against accused Nos. 1 to 3 by the following evidence:
i) The 1st accused had a motive to do away with PW1 and the
deceased as they demanded money for repairing the car owned by
PW1, and owing to the impertinent act of PW1 in going to the
home of A1, demanding money.
ii) An incident had taken place in front of the house of Sri. Ayyappan
Pillai, wherein, the 1st accused had chased PW1 and attacked him
Crl.A. Nos. 489 & 381 of 2017 :43: 2024:KER:65590with a bamboo stick, and pushed him down to the sit-out, as
spoken to by PW1 and PW2.
iii) The 2nd incident which took place in front of the house of Sri.
Pillai, when the 1st accused cornered the autorickshaw driven by
Shafi, wherein, PW1, PW2, and CW2 were travelling, and after
chasing Shafi, who tried to escape inflicted multiple stab injuries on
his abdomen and the back of his chest.
b) The version of the defence is that the true facts of the case have not
been placed before the Court. The tenor of evidence tendered by the
defence by examining the wife and daughter of A1 and two of his
daughters is that, after about 10:00 p.m., PW1 Ashraf and his
employees armed with knives and sticks, had come to the house of A1,
killed his dog and had created a frightening situation outside his
house. Some construction equipment of A1 was also destroyed. While
A1 and his brother were on the way to lodge a complaint before the
police, they were attacked by Shafi and others, and in the melee that
followed, an injury was sustained by Shafi. They contend that no
incident as alleged had taken place in front of the house of Pillai, and
according to them, PW1 was nowhere present at the scene of the
Crl.A. Nos. 489 & 381 of 2017 :44: 2024:KER:65590crime and he was giving a false version before the Court.
c) Now the question is whether the evidence let in by the prosecution can
be relied upon to enter upon a finding of guilt against the accused.
d) While evaluating the evidence of PW1, it can be seen that a specific
case is that as requested by A1, he along with his employees had gone
to the house of A1 after closing his shop. He says that he was attacked
by A1, while he was standing in front of Ayyappan Pillai’s house.
However, the fact remains that he had not lodged a complaint before
the police, nor did he seek any treatment from the Doctor. He then
states that he did not return back together with PW2 and Biju in his
auto rickshaw, even after the incident, but decided to walk back
despite the fact that it was drizzling then. It was Shibu, who had called
his brothers – Shafi, Wahid & Salim, and they had promptly come after
hearing the assault upon their elder brother by A1. As suggested by
PW5 Omanna Amma, PW1 decided to lodge a complaint before the
police, for which he entered the autorickshaw driven by Shafi and
proceeded to the Police Station along with PW2 Shihab and CW2 Biju.
While they were proceeding towards Thannickal Mukku and when they
reached in front of the house of Pillai, A1 along with the rest of the
Crl.A. Nos. 489 & 381 of 2017 :45: 2024:KER:65590
accused came in a jeep, cornered the autorickshaw, jumped out of the
jeep and chased Shafi, and after restraining him, stabbed him with
MO1 and MO2 knives. From a perusal of the evidence, it does not
stand to reason why A1 and others targeted Shafi instead of PW1, with
whom he was having a grievance. Of course, PW2 and PW4 had
spoken about an incident that took place on 08.06.2010, between
Shafi and A1. Furthermore, the residence of Omana Amma is situated
just on the southern side of the shop of A1, and from the evidence of
PW4, it is evident that he had heard the sound of an accelerating jeep
and he had rushed back, and also heard Shafi crying out. It is curious
as to why PW1, his employees, and his brothers did not intervene
when a lesser number of individuals cornered their own brother and
inflicted stab injuries. If the version of PW1 is to be believed, he and
his employees left his younger brother and ran off to a place about 50
meters away and hid behind a coconut palm to enable them to see the
incident.
e) The next is the evidence of PW2. He stated about the 1st incident
which took place in front of the shop of Ayyappan Pillai, and the 2nd
incident which took place in front of the house of Pillai. His version is
Crl.A. Nos. 489 & 381 of 2017 :46: 2024:KER:65590
similar to that of PW1, except for the fact that he stated that he had
not seen A1 stab Shafi in his abdomen. However, he stated that Shafi
had cried out that A1 had stabbed him. However, during
cross-examination, it was brought out that he had no such case when
he was questioned by the Police. When he states that PW1 was also
with him and that they had together transported the deceased to the
hospital, it can only be deduced that he was also not speaking the
truth with regard to the most vital part of the incident. Of course, the
presence of blood in his clothes may lead to the conclusion that he
was instrumental in shifting the injured to the hospital, and nothing
further.
f) PW4 is the brother of PW1 and the deceased. He did not witness the
incident but he heard the cry of the deceased that he was stabbed by
A1. He stated that when he reached the place of occurrence, he found
the accused escaping in a Jeep. PW1 and PW2 were found lifting Shafi
and putting him into the autorickshaw, which was parked nearby.
However, in cross-examination, it was brought out that he had no
occasion to state before the police that Shafi had cried out the name
of A1. His speaking about the presence of A1 and of A1 assisting in the
Crl.A. Nos. 489 & 381 of 2017 :47: 2024:KER:65590
transportation of the deceased into the autorickshaw would clearly
disclose that he was lying about a material part of the incident.
g) The most important question is on what basis did the prosecution fix
the place of occurrence as the courtyard of the house of Pillai. If the
version of the prosecution witnesses is believed Shafi was stabbed
when he had gotten out of the auto along with PW1, 2, and CW2 Biju.
The FIR and the Remand Application indicate that the stab injury was
inflicted on the road in front of Pachan Pillai’s residence. However, in
the police charge, as well as in Scene Mahazar, the incident is stated to
have occurred on the northeastern corner of the residential home of
Pachan Pillai, the father of PW12. The learned Sessions Judge believed
the prosecution version and came to the conclusion that the
prosecution successfully proved that the deceased was wrongfully
restrained and thereafter, stab injuries were inflicted in front of the
courtyard of the residence of Pachan Pillai and noted as item No.10 in
the scene plan. We have difficulty in accepting the said contention,
due to a very serious flaw in the prosecution case. A perusal of the
Postmortem report would reveal that the deceased had sustained two
incised penetrating wounds on his back and an incised penetrating
Crl.A. Nos. 489 & 381 of 2017 :48: 2024:KER:65590
wound on the left side of his abdomen. It is also stated that a loop of
the intestine was protruding through the wound. PW1 and PW2 had
also stated that the intestine of the deceased had protruded out when
the first stab injury was inflicted. The injured had fallen on the ground
according to the witnesses and PW1 & PW2 had lifted him up.
However, the investigating officer has not noted the presence of blood,
in or around the alleged scene of crime. Of course, in the evidence of
PW1 and the scene-mahazar, it is casually mentioned that there was
drizzle on the previous day. If, in fact, the injury was inflicted within
the compound of the property, or on the road in front, the presence of
blood would in all certainty be noted at the scene of crime. Not even a
speck of blood was found anywhere on the road or on the property of
Pachan Pillai. This aspect of the matter throws serious doubt on the
case set up by the prosecution that the incident had occurred in the
courtyard of the house of Pachan Pillai. Furthermore, the son of
Pachan Pillai, who was examined as PW12, did not support the case of
the prosecution that the incident had taken place in his courtyard. His
evidence is to the effect that the police had come to the spot at 11:30
p.m. and this was stated in the chief examination itself. If that be the
case, the foremost thing that the prosecuting agency ought to have
Crl.A. Nos. 489 & 381 of 2017 :49: 2024:KER:65590
done was to fix the place of occurrence on the basis of the pool of
blood found at the scene of the crime. There is no mention of the
presence of blood anywhere in the scene mahazar or in the evidence
of the Investigating Officer when he was examined as PW22. The
failure on the part of the prosecution to fix the place of occurrence on
the basis of the presence of blood and their failure to furnish any sort
of explanation for noting the same would create a serious doubt in the
prosecution case. It cannot be safely concluded that the incident
happened at the place as alleged by the prosecution. The necessary
corollary is that PWs1, 2 and 4 who are interested witnesses are not
stating the truth before the Court as to the manner in which the
incident had taken place. As held by this Court in Sivan @ Siva v.
State of Kerala8, it is not enough if an allegation is made that the
incident happened at a particular place, but it must be proved to the
satisfaction of the Court, especially when there is a rival version about
the incident in question. It is not enough if two witnesses say that the
incident happened at a particular place, but when such a statement is
made by interested witnesses, the Court must seek corroboration from
other sources especially if certain facts emerging from records cast
8
[2012 KHC 629]
Crl.A. Nos. 489 & 381 of 2017 :50: 2024:KER:65590
doubt on their version.
h) There are even more critical issues to doubt the version of PWs1, 2,
and 4. In order to lend credence to his presence at the scene of the
crime, PW1 stated that he had hid behind a coconut palm, which was
situated about 50 meters away. The witnesses above also asserted
that when A1 and others left the scene in the Jeep, PW1 and 2 lifted
up the deceased who was lying injured with multiple stab injuries and
who must have been profusely bleeding, and rushed him to Matha
Hospital in the autorickshaw owned by Shafi. To the question posed by
the counsel appearing for the 2nd accused in cross-examination, PW1
stated that Shafi was lying on his lap. As suggested by the doctor at
Matha Hospital, the injured was shifted to the Sankers Hospital in an
ambulance. After Shafi was pronounced dead, he was taken to the
District Hospital, and then PW1 rushed to the Police Station and
lodged the FI Statement at 1:00 a.m. In the body note appended to
the FI Statement, it is stated that PW1 was wearing a red shirt and
black pants, and there was nothing noteworthy to be noted. When
PW1 has no case that he had changed his clothes after the incident,
his version that he was present on the spot, and had occasion to
Crl.A. Nos. 489 & 381 of 2017 :51: 2024:KER:65590
witness the occurrence, that he had taken the injured to the hospital,
that the bleeding injured was on his lap, etc., can only be rejected for
the reason that not even a drop of blood was found in his clothes.
i) There is yet another striking inconsistency in the prosecution case. The
deceased had come to meet PW1, pursuant to the call made by PW2
in an autorickshaw. The said autorickshaw was allegedly blocked by
A1, and it was thereafter that the stab injuries were inflicted on Shafi.
It was in the said autorickshaw that Shafi was shifted to Matha
Hospital. In view of the injuries sustained by Shafi, he would have lost
a substantial amount of blood and necessarily, the inside of the auto
and passengers like Shibu, and PW1 would have been drenched in
blood. However, the said vehicle was also not seized by the police. The
doctor attached to the Matha Hospital was also not examined to prove
that Shafi was brought to the said hospital, and after noting the
injuries, he was referred to a higher center. The failure of the
prosecution to seize the clothes worn by PW1, and the autorickshaw in
which the deceased was taken to Matha Hospital, coupled with the
absence of blood anywhere near the projected place of occurrence
would throw serious doubts as to the presence of PW1 at the place of
Crl.A. Nos. 489 & 381 of 2017 :52: 2024:KER:65590
occurrence, and the manner in which the incident had taken place. If
PW1 and his brothers and employees were in fact present at the scene
of the crime, a different sort of response was expected by any prudent
person. Furthermore, the prosecution has attempted to plant PW3, a
near relative of PW1 at the scene of the crime, to probablize its
version. However, the learned Sessions Judge analyzed the evidence of
PW3 and found him not to be trustworthy at all.
j) To add to this another important circumstance is the omission on the
part of the prosecution to send the bloodstained earth which most
certainly would have been found at the place of occurrence for
chemical examination which could have fixed the situs of the assault.
In almost all criminal cases, the bloodstained earth found from the
place of occurrence is invariably sent to the Chemical Examiner and his
report along with the earth is produced in the court, and yet this is one
exceptional case where this procedure was departed from for reasons
best known to the prosecution. This also, therefore, shows that the
defence version may be true. It is well settled that it is not necessary
for the defence to prove its case with the same rigour as the
prosecution is required to prove its case, and it is sufficient if the
Crl.A. Nos. 489 & 381 of 2017 :53: 2024:KER:65590
defence succeeds in throwing a reasonable doubt on the prosecution
case which is sufficient to enable the court to reject the prosecution
version. (See: Lakshmi Singh And Others v. State Of Bihar9)
k) The circumstances described above cast serious doubts on the case
set up by the prosecution and the presence of PWs 1, 2, and 4. It
seems that the investigating agency has deliberately attempted to
present a specific version of the incident to the court while concealing
the true facts. Inconsistencies and contradictions run throughout the
prosecution’s case, making it impossible to distinguish truth from
falsehood.
l) A fair trial for the accused, a constitutional guarantee under Article 21
of the Constitution, becomes meaningless if the investigation in a
murder case raises serious concerns about its fairness. The
prosecution bears the responsibility to clearly demonstrate that the
investigation was fair and judicious, without any circumstances that
could raise doubts about its credibility. The obligation to prove guilt
beyond a reasonable doubt encompasses the requirement for a fair
investigation; without it, there can be no fair trial. If the investigation
9
[ (1976) 4 SCC 394]
Crl.A. Nos. 489 & 381 of 2017 :54: 2024:KER:65590
itself is biased or unfair, expecting the accused to demonstrate
prejudice is dangerous, as it grants arbitrary powers to the police,
potentially leading to false accusations. In such cases, the
investigation becomes a mere formality and a farce.
m) As held in Babubhai v. State of Gujarat10, the investigation into a
criminal offence must be free from objectionable features or infirmities
that could legitimately lead the accused to believe that the
investigation was unfair or motivated by ulterior motives. It is also the
duty of the investigating officer to conduct the investigation in a
manner that avoids any form of mischief or harassment towards the
accused. The officer must be fair and vigilant, ensuring that no
evidence is fabricated and that their impartial conduct dispels any
suspicion about the investigation’s genuineness. The investigating
officer’s role is not merely to bolster the prosecution’s case to secure a
conviction but to uncover the real, unvarnished truth.
n) In Ankush Maruti Shinde v. State of Maharashtra11, the Supreme
Court while speaking about the need for an impartial and truthful
investigation observed as under:
10
[(2010) 12 SCC 254]
11
[(2019) 15 SCC 470]
Crl.A. Nos. 489 & 381 of 2017 :55: 2024:KER:65590“10.2. Nothing is allowed by the law which is contrary to
the truth. In Indian criminal jurisprudence, the
accused is placed in a somewhat advantageous
position than under different jurisprudences of some
of the countries in the world. The criminal justice
administration system in India places human rights
and dignity for human rights at a much higher
pedestal and the accused is presumed to be
innocent till proven guilty. The alleged accused is
entitled to fair and true investigation and fair trial
and the prosecution is expected to play a balanced
role in the trial of a crime. The investigation should
be judicious, fair, transparent, and expeditious to
ensure compliance with the basic rule of law. These
are the fundamental canons of our criminal
jurisprudence and they are quite in conformity with
the constitutional mandate contained in Articles 20
and 21 of the Constitution of India.”
o) A careful consideration of all the facts narrated and the discussions
held would lead us to the irresistible conclusion that the prosecution
has not placed the true facts before the Court or rather they have
made an attempt to suppress the material facts from the notice of the
Court. The evidence of PWs1, 2, and 4 cannot be stated to be
confidence-inspiring as it does not appear that they had occasion to
witness the incident as narrated by them. They have stated a distorted
Crl.A. Nos. 489 & 381 of 2017 :56: 2024:KER:65590
version before this Court to make it appear that the incident of the
nature alleged by them had taken place in the courtyard of the house
of Pillai. As held by this Court in Sivan (supra), the investigation or
trial devoid of its true spirit and merit will undermine the confidence of
the society in the criminal system of administration of justice as well as
in the sublime values enshrined in our Constitution. A fair investigation
of the case is not a mere exercise of formulating a particular theory as
the prosecution case with such evidence so as to secure a conviction
of the accused based on that theory. The prosecution case must be
one placing the true facts including those facts which are beneficial to
the accused to the notice of the Court. A conviction secured without
adhering to the fair principles of criminal justice would be anathema.
The presumption of innocence of the alleged accused is fundamental
in nature in the criminal justice delivery system until the charges
framed against him are proved beyond reasonable doubt by way of
credible, cogent, and unimpeachable evidence. The evidence collected
by the investigation and adduced before the Court during trial shall not
create suspicion and cast a shadow of doubt on the credibility and
truthfulness of the prosecution case spoken through their witnesses.
The facts narrated and the discussions held in this case would
Crl.A. Nos. 489 & 381 of 2017 :57: 2024:KER:65590
definitely create serious suspicion and cast a great shadow of doubt on
the prosecution case.
p) We notice that the learned Sessions Judge has implicitly accepted the
evidence of PWs 1, 2, and 4 without properly considering the
deficiencies and the contradictions in their evidence. In our opinion,
some of the omissions and discrepancies in the evidence of the
eyewitnesses, which we have already pointed out are glaring. PW1 and
PW4 being brothers and PW2 being an employee of PW1, their
evidence has to be subjected to the most serious of scrutiny. Their
presence at the scene of the crime being found doubtful, and there
being no such corroboration from independent sources, we find it
rather difficult to accept the evidence of PWs 1, 2, and 4.
q) At this juncture, it would be profitable to refer to the evidence of
DWs1 to 4. DW1 and DW2 had narrated a different version in court.
According to them, after A1 had returned back from Thannickal
Mukku, PW1 and his employees had come outside the house of A1,
armed with weapons. When their dog barked at them, the animal was
killed. This is spoken to by PW4 and 5 as well. The neighbors
intervened and dispersed the violent crowd. Later, A1 along with A2
Crl.A. Nos. 489 & 381 of 2017 :58: 2024:KER:65590
got out to lodge a complaint before the police. By that time, PW1 and
his brothers had assembled and had ganged up. When A1 and
Chandrababu attempted to flee from the place in their Jeep, they were
blocked using the auto. There was no light in the area and there
occurred a melee during which Shafi sustained injury. In view of the
inconsistencies we have noted in the evidence of the prosecution, we
are not in a position to ignore the version put forward by the defence.
16. Recovery of weapons at the instance of the accused:
a) Another material evidence relied on by the learned Sessions Judge to
link the accused with the offence is the recovery of MO1 and MO2
knives at the hands of accused Nos. 1 and 3 respectively. Insofar as the
recovery of weapons based on the disclosure statement of A1 is
concerned, the records reveal A1 was arrested on 12.06.2020. Based
on the statement furnished by him, the Jeep and a shirt were seized on
13.06.2020 from Anchallummodu. Thereafter, there was a lull till
24.06.2020, on which day, a fresh application was filed to obtain police
custody of A1. As per Ext.P11 seizure mahazar, when A1 was
questioned again, he disclosed that MO1 knife was thrown away by
him, and based on his disclosure statement, he was taken to a place
Crl.A. Nos. 489 & 381 of 2017 :59: 2024:KER:65590leading to Thannickal Mukku, and from a near transformer, he is alleged
to have taken out MO1 knife. PW14 is the attester to the Mahazar. In
his evidence, he stated that he is an autorickshaw driver and while on a
trip, he saw a person wearing spectacles, taking out a knife. However,
in cross-examination, he admitted that when he got down to that place,
several people had already assembled. He also stated that he is
residing about 22 kms. away from the place, from where the weapon
was recovered. The prosecution has no case that the disclosure
statement was given by the accused in the presence of the witness, or
that the witness was present when the police had come to the spot
with the accused. The contention of the defence that the knife was
planted by the police and thereafter, custody was sought, and the
whole recovery of the weapon was stage managed cannot be ignored.
At any rate, all that the witness stated was that he found the accused
taking a knife out of shrubs and nothing more. Insofar as the 3rd
accused is concerned, it is based on Ext.P9 (a) Disclosure Statement,
that the knife, shirt, and kaily recovered in the presence of PW11, the
attester. PW11 stated that he is an autorickshaw driver. He stated that
he had occasion to sign on Ext.P9 Mahazar. He stated that when he had
got down on seeing the police jeep, about 25 persons had already
Crl.A. Nos. 489 & 381 of 2017 :60: 2024:KER:65590
assembled. He saw the knife and clothes being handed over by A3 to
the police. Insofar as the 2nd accused is concerned, he was arrested at
7:30 p.m. on 12.06.2010 from the KSRTC Bus Stand, Kollam. His police
custody was obtained and based on Ext.P22 Disclosure Statement, the
Saffron Dhoti and Shirt were seized. However, the attester to the
Mahzar was not examined as a witness.
b) In State of Rajasthan v. Bhup Singh12, the Apex Court has
observed the following as the conditions prescribed in Section 27 of the
Evidence Act, 1872 for unwrapping the cover of the ban against the
admissibility of statement of the accused to the police (1) a fact should
have been discovered in consequence of the information received from
the accused; (2) he should have been accused of an offence; (3) he
should have been in the custody of a police officer when he supplied
the information; (4) the fact so discovered should have been deposed
to by the witness. The Court observed that if these conditions are
satisfied, that part of the information given by the accused which led to
such recovery gets denuded of the wrapper of prohibition and it
becomes admissible in evidence.
12
(1997) 10 SCC 675
Crl.A. Nos. 489 & 381 of 2017 :61: 2024:KER:65590
c) The aspect which this Court has to consider in the present case is
whether these recoveries have been made in accordance with law and
whether they are admissible in evidence or not, and most importantly,
the link with and effect of the same vis-a-vis the commission of the
crime. At this juncture, it would be profitable to bear in mind the
observations of the Apex Court in Subramanya v. State of
Karnataka13 wherein the Supreme Court has delineated the principles
that are to be borne in mind by the Court while confronted with the
question of admissibility of recovery effected at the instance of the
accused. It was observed as follows in paragraph Nos. 77 and 78 of the
judgment.
“77. The first and the basic infirmity in the evidence of all the
aforesaid prosecution witnesses is that none of them have
deposed the exact statement said to have been made by the
appellant herein which ultimately led to the discovery of a
fact relevant under Section 27 of the Evidence Act.
78. If, it is say of the investigating officer that the
appellant-accused while in custody on his own free will and
volition made a statement that he would lead to the place
where he had hidden the weapon of offence, the site of burial
of the dead body, clothes, etc. then the first thing that the13
[(2022 SCC OnLine SC 1400)]
Crl.A. Nos. 489 & 381 of 2017 :62: 2024:KER:65590investigating officer should have done was to call for two
independent witnesses at the police station itself. Once the
two independent witnesses would arrive at the police station
thereafter in their presence the accused should be asked to
make an appropriate statement as he may desire in regard to
pointing out the place where he is said to have hidden the
weapon of offence, etc. When the accused while in custody
makes such statement before the two independent witnesses
(panch witnesses) the exact statement or rather the exact
words uttered by the accused should be incorporated in the
first part of the panchnama that the investigating officer may
draw in accordance with law. This first part of the panchnama
for the purpose of Section 27 of the Evidence Act is always
drawn at the police station in the presence of the
independent witnesses so as to lend credence that a
particular statement was made by the accused expressing his
willingness on his own free will and volition to point out the
place where the weapon of offence or any other article used
in the commission of the offence had been hidden. Once the
first part of the panchnama is completed thereafter the police
party along with the accused and the two independent
witnesses (panch witnesses) would proceed to the particular
place as may be led by the accused. If from that particular
place anything like the weapon of offence or bloodstained
clothes or any other article is discovered then that part of the
entire process would form the second part of the panchnama.
This is how the law expects the investigating officer to draw
the discovery panchnama as contemplated under Section 27
of the Evidence Act. If we read the entire oral evidence of the
Crl.A. Nos. 489 & 381 of 2017 :63: 2024:KER:65590investigating officer then it is clear that the same is deficient
in all the aforesaid relevant aspects of the matter.”
d) In Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh14,
the principles were clarified further and it was observed as under:
“56. The requirement of law that needs to be fulfilled
before accepting the evidence of discovery is that by
proving the contents of the panchnama. The investigating
officer in his deposition is obliged in law to prove the
contents of the panchnama and it is only if the
investigating officer has successfully proved the
contents of the discovery panchnama in accordance with
law, then in that case the prosecution may be justified in
relying upon such evidence and the trial court may also accept
the evidence. In the present case, what we have noticed from
the oral evidence of the investigating officer, PW7, Yogendra
Singh is that he has not proved the contents of the discovery
panchnama and all that he has deposed is that as
the accused expressed his willingness to point out the
weapon of offence the same was discovered under a
panchnama. We have minutely gone through this part of the
evidence of the investigating officer and are convinced that by
no stretch of imagination it could be said that the investigating
officer has proved the contents of the discovery panchnama
(Exh.5). There is a reason why we are laying emphasis on
proving the contents of the panchnama at the end of14
2022 SCC OnLine SC 1396
Crl.A. Nos. 489 & 381 of 2017 :64: 2024:KER:65590the investigating officer, more particularly when the
independent panch witnesses though examined yet have not
said a word about such discovery or turned hostile and have
not supported the prosecution. In order to enable the Court to
safely rely upon the evidence of the investigating officer, it is
necessary that the exact words attributed to an accused, as
statement made by him, be brought on record and, for this
purpose the investigating officer is obliged to depose in his
evidence the exact statement and not by merely saying that a
discovery panchnama of weapon of offence was drawn as the
accused was willing to take it out from a particular place.
xxxxxxx xxxxxxxxx
71. Thus, in the absence of exact words, attributed to an
accused person, as statement made by him being deposed by
the investigating officer in his evidence, and also without
proving the contents of the panchnama (Exh.5), the trial court
as well as the High Court was not justified in placing reliance
upon the circumstance of discovery of weapon
72. If it is the case of the prosecution that the PW2,
Chhatarpal Raidas, s/o Rameshwar Raidas had acted
as one of the panch witnesses to the drawing of the
discovery panchnama, then why the PW2, Chhatarpal Raidas in
his oral evidence has not said a word about he having acted as
a panch witness and the discovery of the weapon of the
offence and blood stained clothes being made in his presence.
The fact that he is absolutely silent in his oral evidence on the
aforesaid itself casts a doubt on the very credibility of the two
Crl.A. Nos. 489 & 381 of 2017 :65: 2024:KER:65590police witnesses i.e. PW6 and PW7 respectively.”
e) In the case on hand, when the investigating officer was examined, he
merely stated that the accused while in custody furnished a statement
and nothing more. In his evidence, he has not proved the contents of
the recovery mahazar. He has also not mentioned that he had
procured the presence of independent witnesses of the locality to
witness the search. Furthermore, the witnesses to the recovery
effected at the instance of the A1 and A3 are concerned, they only
stated that they only saw the MOs being taken out by the accused,
and by the time they had reached there scores of people had
assembled at the place by then. Insofar as the recovery effected at the
instance of the 2nd accused is concerned, the prosecution did not
choose to examine the attestor. In other words, the recovery of
weapons at the instance of the accused will not advance the case of
the prosecution.
17. Whether the flaws in the prosecution case can be ignored on the
ground of defective investigation:
a) The learned Sessions Judge has ignored some of the flaws in the
prosecution case on the ground that defective investigation, by itself
Crl.A. Nos. 489 & 381 of 2017 :66: 2024:KER:65590cannot be a ground for acquittal of the accused.
b) In this context, it would be apposite to bear in mind the observations
made by the Apex Court in C. Muniappan v. State of Tamil
Nadu15 wherein it was observed as under:
“55. There may be highly defective investigation in a case.
However, it is to be examined as to whether there is any
lapse by the IO and whether due to such lapse any benefit
should be given to the accused. The law on this issue is well
settled that the defect in the investigation by itself cannot be
a ground for acquittal. If primacy is given to such designed
or negligent investigations or to the omissions or lapses by
perfunctory investigation, the faith and confidence of the
people in the criminal justice administration would be
eroded. Where there has been negligence on the part of the
investigating agency or omissions, etc. which resulted in
defective investigation, there is a legal obligation on the part
of the court to examine the prosecution evidence dehors
such lapses, carefully, to find out whether the said evidence
is reliable or not and to what extent it is reliable and as to
whether such lapses affected the object of finding out the
truth. Therefore, the investigation is not the solitary area for
judicial scrutiny in a criminal trial. The conclusion of the trial
in the case cannot be allowed to depend solely on the
probity of investigation.
15
[(2010) 9 SCC 567]
Crl.A. Nos. 489 & 381 of 2017 :67: 2024:KER:65590
c) We may also refer to a decision of this Court in the case of Surajit
Sarkar v. State of W.B.16, as under:
“49. We are not prepared to accept as a broad proposition of
law that in no case can defective or shoddy investigations
lead to an acquittal. It would eventually depend on the
defects pointed out. If the investigation results in the real
culprit of an offence not being identified, then acquittal of the
accused must follow. It would not be permissible to ignore
the defects in an investigation and hold an innocent person
guilty of an offence which he has not committed. The
investigation must be precise and focused and must lead to
the inevitable conclusion that the accused has committed the
crime. If the investigating officer leaves glaring loopholes in
the investigation, the defence would be fully entitled to
exploit the lacunae. In such a situation, it would not be
correct for the prosecution to argue that the court should
gloss over the gaps and find the accused person guilty. If this
were permitted in law, the prosecution could have an
innocent person put behind bars on trumped up charges.
Clearly, this is impermissible and this is not what this Court
has said.
In the case on hand, we have carefully examined the evidence let in by
the prosecution dehors the lapses in investigation and we have found that the
evidence let in by the prosecution to canvass the guilt of the accused suffers
16
[(2013) 2 SCC 146]
Crl.A. Nos. 489 & 381 of 2017 :68: 2024:KER:65590from serious inconsistencies and lapses. With the aid of such evidence, it
would not be possible for us to arrive at a finding of guilt against the accused.
18. Our conclusion:
Every accused person is presumed innocent until proven guilty. This
presumption of innocence is not just a legal principle but a fundamental
human right. While there are statutory exceptions to this rule, it forms the
cornerstone of criminal jurisprudence. In assessing guilt, the nature,
seriousness, and gravity of the offence must be carefully considered.
However, in cases where the statute does not explicitly place the burden of
proof on the accused, it unequivocally rests with the prosecution. Only in
exceptional circumstances, as provided by specific statutes, does the burden
shift to the accused. Even when a statute presumes guilt, it must meet the
standards of reasonableness and liberty enshrined in Articles 14 and 21 of the
Constitution. A conviction cannot be based on surmises, conjectures, or even
strong suspicion, regardless of how grave that suspicion may be. Strong
coincidences and grave doubts cannot substitute for legal proof. The
prosecution cannot fulfill its obligation by merely pointing to strong suspicions
or highly suspicious circumstances to incriminate the accused. Nor can a false
defense take the place of the proof that the prosecution must establish to
Crl.A. Nos. 489 & 381 of 2017 :69: 2024:KER:65590secure a conviction. While a false plea by the defense might be considered an
additional circumstance, it is only relevant if other evidence unerringly points
to the accused’s guilt (See: Digamber Vaishnav v. The State of
Chhattisgarh17). Suspicion, however strong, is no substitute for proof. There
is a significant distance between “may be true” and “must be true,” and the
prosecution must cover this distance by proving its case beyond all
reasonable doubt. In the case at hand, the prosecution not only failed to
prove its case but also presented palpably false evidence, falling far short of
the standard required to establish the appellant’s guilt beyond all reasonable
doubt (See: Varkey Joseph v. State of Kerala 18).
We hold that the prosecution has suppressed the genesis and the
place of occurrence and has thus not presented the true version. We also
hold that the witnesses who are projected as eyewitnesses are lying on a
most material point and therefore their evidence is unreliable. Thus in view of
the inherent improbabilities, the serious omissions and infirmities, the
interested or inimical nature of the evidence and other circumstances pointed
out by us, we are clearly of the opinion that the prosecution has miserably
failed to prove the case against the appellants beyond reasonable doubt. We
17
[(2019) 4 SCC 522]
18
[AIR 1993 SC 1892]
Crl.A. Nos. 489 & 381 of 2017 :70: 2024:KER:65590therefore conclude that the prosecution has failed to prove the guilt of the
accused beyond reasonable doubt, the benefit of which has to be extended to
the accused.
In the result, these appeals are allowed. The conviction and sentence
of the accused for the offences punishable under sections 341, 324, 302 r/w.
section 34 IPC are set aside and the appellants/accused are acquitted of all
charges under section 235(1) Cr.P.C. Their bail bonds shall stand cancelled
and they shall be set at liberty, if their continued incarceration is not required
in any other case.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGESd/-
G. GIRISH,
JUDGE
PS&APM/30/8/24
Crl.A. Nos. 489 & 381 of 2017 :71: 2024:KER:65590
APPENDIX OF CRL.A 489/2017
PETITIONER ANNEXURES
Annexure 1 TRUE PHOTOCOPY OF THE DEATH CERTIFICATE DATED
13.7.2022 ISSUED BY THE REGISTRAR OF BIRTHS
AND DEATHS, PANAYAM GRAMA PANCHAYATH WITH
RESPECT OF THE DEATH OF APPELLANT.