Legally Bharat

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:65590

distance 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:65590

deprecated 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 becomes

7
[(1972) 1 SCC 249]
Crl.A. Nos. 489 & 381 of 2017 :18: 2024:KER:65590

pivotal 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:65590

With 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:65590

08.06.2010, 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:65590

Anila 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:65590

with 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:65590

crime 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:65590

leading 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 the

13
[(2022 SCC OnLine SC 1400)]
Crl.A. Nos. 489 & 381 of 2017 :62: 2024:KER:65590

investigating 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:65590

investigating 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 of

14
2022 SCC OnLine SC 1396
Crl.A. Nos. 489 & 381 of 2017 :64: 2024:KER:65590

the 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:65590

police 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:65590

cannot 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:65590

from 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:65590

secure 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:65590

therefore 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,
JUDGE

Sd/-


                                                                    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.
 

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