Abdul Azeez s/o Muhammed Kunhi and Yasar Arafat s/o Muhammed Kunhi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 CRL.A NO. 962 OF 2013** **AGAINST THE JUDGMENT DATED 03.07.2013 IN SC NO.1029 OF 2012 OF ADDITIONAL SESSN.COURT (ADHOC-II)KASARAGODE APPELLANTS/ACCUSED 1 & 2:** **1 ABDUL AZEEZ S/O.MUHAMMED KUNHI, HOUSE NO.XIII-90B, ULIYADARGA ROAD, MADUR, PATLA, KASARAGOD. 2 YASAR ARAFAT S/O.MUHAMMED KUNHI, HOUSE NO.XIII-90B, ULIYADARGA ROAD, MADUR, PATLA, KASARAGOD BY ADV. SRI.K.K.MOHAMED RAVUF** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **ADV.PUSHPALATHA M.K. -SR GP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl. Appeal No.962 of 2013 ## **P.G. AJITHKUMAR, J.** **-------------------------------------------------Crl. Appeal No.962 of 2013** **==> picture [36 x 32] intentionally omitted <==** **--------------------------------------------------Dated this the 02[nd] day of April, 2024** ## **J U D G M E N T** This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. The appellants stand convicted and sentenced for the offences punishable under Sections 341, 308 and 326 read with Section 34 of the Indian Penal Code, 1860 by the Additional Sessions Judge (Adhoc-II), Kasargode in Sessions Case No.1029 of 2012. 2. The case of the prosecution is as follows: At about 1.00 p.m on 08.02.2007 PW1, the defacto complainant and his friend Rasheed (CW2) were coming back home after attending the wedding ceremony of their friend. When they reached on the road near to the Juma Masjid at Patla, the accused persons rushed to PW1 and asking as to whether he complained in police against them, wrongfully restrained him. The 1[st] accused stabbed on his chest with a knife. If not warded off, the attack would have caused his 3 Crl. Appeal No.962 of 2013 death. The 2[nd] accused during the course stabbed him aiming his abdomen. PW1 could ward off that attack also, but it resulted an injury on his back. 3. Upon denying the charge by the appellants, prosecution has examined PWs 1 to 8 and proved Exts.P1 to P7 to establish the charge. The appellants denied the incriminating circumstances and claimed to be innocent. No defence evidence was let in. 4. The trial court believed the evidence of PW1, the injured by holding that the discrepancies appeared in his evidence were trivial in nature and the medical evidence rendered sufficient support to his assertions. Findings of the trial court are assailed by the appellants. They contend that PW1 is totally an unreliable witness and the discrepancies in his evidence, in the absence of any independent evidence, render his evidence untrustworthy. It is also contended that the medical evidence does not tally with the oral testimony of PW1 and lack of evidence as to how PW1 reached Carewell hospital with a sutured wound makes the case of the 4 Crl. Appeal No.962 of 2013 prosecution all the more suspicious. 5. Heard the learned counsel for the appellants and the learned Senior Public Prosecutor. 6. The learned counsel for the appellants would submit that the discrepancies in the evidence of PW1 in contradistinction to Ext.P1 – the FI statement make him a totally unreliable witness. It is submitted that there is no consistency as to the time of occurrence, nature of incident and the examination of PW1 at the Taluk hospital, Kasargod. The prosecution did not cite the doctor who examined PW1 at the Taluk hospital and that created a lacuna as to how suturing of injury No.1 sustained by PW1 occurred. 7. The learned Public Prosecutor strongly refuted the said submissions by contending that PW1 who sustained serious injuries and gave Ext.P1 statement immediately after the incident is a sterling witness and his evidence can be relied on to enter a conviction even without any independent corroboration. It is submitted by the learned Senior Public Prosecutor that evidence of PW8 coupled with Ext.P8 5 Crl. Appeal No.962 of 2013 convincingly proved that PW1 sustained serious injuries as alleged by the prosecution and when the cause of injury as stated in Ext.P8 substantially corroborates the oral testimony of PW1, the findings of the trial court leading to the conviction of the appellants cannot be found fault with. 8. The direct evidence regarding the incident is that of PW1, the injured alone. Section 134 of the Evidence Act reads: “No particular number of witnesses shall in any case be required for the proof of any fact.” 9. Therefore the learned Public Prosecutor is right in contending that the evidence of PW1 is enough to enter a conviction. But that submission can be appreciated only with a caveat that evidence of the sole witness shall be of sterling quality and fully reliable. In **Rai Sandeep v. State of NCT of Delhi [(2012) 8 SCC 21]** , the Apex court held : “15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the 6 Crl. Appeal No.962 of 2013 status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose 7 Crl. Appeal No.962 of 2013 - version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 10. The view in **Rai Sandeep** (supra) was reiterated in ## **Naresh@Nehru v. State of Haryana[(2023) 10 SCC** **134]** . So much so, if the evidence of the sole witness inures an impression that he is not wholly reliable, it is necessary to have independent corroboration to enter a conviction based on the evidence of that witness. In order for a proper appreciation of the evidence, the material parts of the oral testimony of PW1 and Ext.P1 F.I statement are to be looked into. The version of PW1 reads: - “A1 Azeez എന� പ�ന�ൽ വരനണ�യ�രന. A2 മന�ൽ ന�ന� bike – ൽവന. A2 bike ന� പ�ന�ല�യ�രന. Shamir എന�ള�ണ� bike ഓട�ചത�. ഞ�ൻ പ�ന�ര�ഞ നന�കന സമയ" A2 വന� ന#�ളറ�ൽ പ�ട�ച. A1 #ത� ന#�ണ വലത ചമല�ന� കത�. മറ�ഞ. A2 #ത� 8 Crl. Appeal No.962 of 2013 ന#�ണ� ന#�ത�. ആദ-നത മറ�വ�ന ത�ന/യ�യ� ന#�ണ മറ�ഞ. ഞ�ൻ ക# ന#�ണ� തടതന2�ൾ വലത ക#തണക കത #�ട�. ഞ�ൻ ഓട�ൻ ശമ�ചന2�ൾ പത�#ൾ എനന പ�ട�ച. എന� വലത #�ല�ന� കത�. ആ കത�യത� ആര�ണ� എന� മനസ�ല�യ�ട�ല . ഞ�ൻ ഓട�. അന2�ൾ A1 പറത കത�. ഏ#നദശ" 75 മ>റർ ഓട�.” ## In Ext. P1 it was stated as follows: “ ......നറ�ഡ�ൽ എത�യന2�ൾ മഞതടക ത�മസ�കന അസ>സ" അറഫ�ത" എന� നനനര വന� ന> ഞങൾക� എത�നര നപ�ല>സ�ൽ പര�ത� ന#�ടക" അനലട� ന�നന വ�ട�ല എന� പറഞന#�ണ� അസ�സ� #യ�ലണ�യ�രന #ഠ�ര #ത� ന#�ണ� എന� നനഞത� ആഞ കത�. ഞ�ൻ വലത ക# ന#�ണ� തടത. ആ കത ഞ�ൻ തടത�ല�യ�രനനവങ�ൽ കത എന� നനഞത� ന#�ണ� ഞ�ൻ മര�ക�ൻ ഇടയ�കമ�യ�രന. പ�ന>ട� അറഫ�ത� അവന� #യ�ലണ�യ�രന നവനറ�ര #ത� ന#�ണ� എന� പളക� കത� ഞ�ൻ നപനടന� മ�റ�നയങ�ല" ആ കത എന� ഇടത ഭ�ഗ" പറത ന#�ണ�. പ�ന>ട� അവർ എനന പ�ട�ച എന� ചമല�ല" കത�. ഇതയമ�യന2�ന/ക" ഞ�ൻ ക>ണ�തന�യ� ന�ലത വ>ണ.” 11. Juxtaposition of the said statements would show that there are irreconcilable interse contradictions. PW2 was examined by the prosecution to prove the incident. But he turned hostile to the prosecution by stating that he did not see the incident. It was he who took PW1 to the Taluk Headquarters hospital, Kasargod. His version is that since nobody came forward to take PW1 to hospital, he ventured 9 Crl. Appeal No.962 of 2013 and took PW1 to the Taluk hospital. When relatives of PW1 came there, he left the hospital. Having had first aid from the said hospital, PW1 was taken to Carewell hospital, where he was treated by PW8. Ext.P8 is the certificate issued by PW8. The injuries sustained by PW1, as deposed by PW8 are the following: 1. Sutured wound over lower part of chest on backside 4 cm long. 2. Incised wound over right forearm 4x2x4 cm. 3. Incised wound over right shoulder anterior about 2 x ½ cm 4. Incised wound over right deltoid 2 x ½ cm 12. The learned counsel for the appellant would submit that evidence regarding the first aid given to PW1 at the Taluk hospital and suturing of his first injury is lacking. I am unable to agree with that submission. PW8 stated as noted in Ext.P8 that PW1 was brought to his hospital from the Government hospital. The oral testimony of PW2 that he took PW1 to the Taluk hospital is unchallenged. Therefore there cannot be any doubt that PW1 was first taken to the Government hospital from where only he was taken to the Carewell hospital. The said evidence proves sustenance of injuries as mentioned 10 Crl. Appeal No.962 of 2013 above by PW1. 13. As pointed out above, PW2 did not support the prosecution insofar as the incident of assault on PW1 is concerned. Another person also was cited (CW2) by the prosecution as occurrence witness. But he could not be examined since he was not available in India. Thus the only evidence available to prove the incident is that of PW1. 14. In the narration by PW1 about the incident in court there was no attempt by the appellants to stab at his chest whereas, in Ext.P1, the specific assertion is that the first stab by the 1[st] appellant was aiming at his chest, but it was warded off by him. Similar inconsistencies are there in regard to the other overt acts as well. Although he stated that he was stabbed at his right leg causing injuries, there was no corresponding injury. 15. PW1 admitted that he has been involved in two cases, among which one is regarding his attack on the 1[st] appellant. PW1 stated that previous enmity was the reason for the attack by the appellants. The said version gets support 11 Crl. Appeal No.962 of 2013 from the other evidence. However, having PW1 been involved in criminal cases, his credibility is at stake. Together with that the inconsistencies in his evidence oblige the prosecution to adduce independent evidence to corroborate his version. Without such corroboration, it is impossible to find that what PW1 stated before the court is true. It follows that the nature of the incident that occurred wherein PW1 sustained injuries is not proved by adducing reliable evidence. True, PW1 sustained serious injuries. But the way in which he sustained injuries is not proved beyond doubt. When such a doubt was created, its benefit has to go in favour of the accused. In that view of the matter, I hold that the findings entered into by the trial court resulting in conviction of the appellants cannot be sustained and are liable to be set aside. Accordingly, the conviction of the appellants is set aside. The appeal is allowed. The appellants are set at liberty. **Sd/-** **P.G. AJITHKUMAR JUDGE** PV