Abdul Khader @ Kunhappu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939** **Crl.Rev.Pet.No. 4338 of 2006 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.A 434/2004 of ADDL.SESSIONS COURT (ADHOC) FAST TRACK COURT NO.-II, MANJERI DATED 06-05-2006** **AGAINST THE JUDGMENT IN CC 601/2000 of J.M.F.C.,TIRUR DATED 06-08-2004** **REVISION PETITIONER(S)/APPELLANT/ACCUSED** **------------------------------------------------ABDUL KHADER@ KUNHAPPU,S/O. KUNHUMOIDEEN, PUTHENVEETTIL HOUSE, THIRUNAVAYA AMSOM, KOLATHUR DESOM.** **BY ADV. SRI.U.K.DEVIDAS** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KEALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. DIVYA C. BALAN.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-10-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.4338 of 2006 ---------------------------------------------Dated this the 24[th] day of October, 2016 ## **ORDER** This revision petition is preferred against the judgment in Criminal Appeal No.434/2004 of Additional Sessions Court, Manjeri. The revision petitioner was the accused in C.C.No.601/2000 of the Judicial First Class Magistrate Court, Tirur for offence punishable under Sections 452 and 324 IPC. The learned Magistrate convicted the accused under Sections 452 and 324 and sentenced thereunder. Against that, he preferred an appeal before the Additional Sessions Court, Manjeri where the learned Sessions Judge modified the sentence. Hence this revision petition. 2. The charge against the accused was that on 17/01/2000 at 2 p.m, he trespassed into the kitchen of PW1 2 Crl.R.P. No.4338/2006 with a knife. By showing the knife he demanded money from PW1. When she was reluctant to heed the demand, the accused pushed her down and stabbed on her left side chest and left thigh, thereby committed the offence. To substantiate the above contention, prosecution examined PW1 to PW11 and marked Exts. P1 to P6. MO1 and MO2 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. The learned counsel appearing for the revision petitioner contended that one witness alone supported the case. There is no direct evidence with regard to involvement of the revision petitioner in the above case. PW2 & PW3 had only hearsay information about the incident, no evidence has been produced in the trial court to prove the offence alleged under Section 452 of IPC and no documents were produced to show the house number, ward number and possession of the house. Hence, the revision petitioner is entitled to get Crl.R.P. No.4338/2006 3 benefit of doubt. 4. The learned Public Prosecutor contended that the evidence of PW1 itself is sufficient to prove the act, no reasons are highlighted by the revision petitioner to discard the evidence of PW1 and no personal enmity is proved against this witness. 5. For satisfying the correctness, legality or propriety of finding or sentence passed by the Court below, I have perused the oral evidence of PW1. The evidence of PW1 shows that on 17.1.2000 at about 2 p.m., the accused came to her house, demanded money and threatened her by showing a knife, he pushed her down and stabbed on the left side chest and left thigh, thereby sustained serious injuries. Immediately, she was removed to Government Hospital. PW1 gave statement to the police and also identified MO1 knife and MO2 dresses. Even though this witness was cross examined by the defence counsel, nothing has been brought out to discredit her evidence. The other independent Crl.R.P. No.4338/2006 4 witness did not support the prosecution case. The court is concerned with the quality of evidence, not with quantity. 6. While appreciating the evidence of the occurrence witness, the reliability on the witness has been properly explained by the Apex court in _**Vadivelu Thevar v. The State of Madras**_ [ _**1957 SC 614]**_ in which it is held as follows: _11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that“no particular number of witnesses shall, in any case, be required for the proof of any fact.” The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England both before and after the passing of the Indian Evidence Act 1872, there have been a number of statutes as set out in Sarkar’s Law of Evidence’- 9[th] Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in S.134 quoted above. The section enshrines the well recognized maxim that “ Evidence has to be weighed and not counted”. Our legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be_ Crl.R.P. No.4338/2006 5 _available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge come into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witnesses, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving of fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:_ - _(1) Wholly reliable._ - _(2) Wholly unreliable._ - _(3) Neither wholly reliable nor wholly unreliable._ _12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness. If it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all_ Crl.R.P. No.4338/2006 6 _taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver, both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution._ _13. Lastly, it was urged that assuming that the court was inclined to act upon the testimony of the first witness and to record a conviction for murder as against the first appellant the court should not impose the extreme penalty of law and in the state of the record as it is, the lesser punishment provided by law should be deemed to meet the ends of justice. We cannot accede to this line of argument. The first question which the court has to consider in a case like this, is whether the accused has been proved, to the satisfaction of the court, to have committed the crime. If the court is convinced about the truth of the prosecution story, conviction has to follow. The question of sentence has to be determined, not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. If the court is satisfied that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of two sentences provided by law. In other words, nature of the proof has nothing to do with the character of the punishment. The nature of the proof can only bear upon the question of conviction-whether or not the accused has been proved to be guilty. If court comes to the conclusion that the guilt has been brought home to the accused , & conviction follows, process of proof is at an end. The question as to what punishment should be imposed is for_ Crl.R.P. No.4338/2006 7 _court to decide in all the circumstances of case with particular reference to any extenuating circumstances. But the nature of proof, as we have indicated, has nothing to do with the question of punishment. In this case, there are no such extenuating circumstances which can be legitimately urged in support of the view that the lesser penalty under S.302 of the Indian Penal Code, should meet the ends of justice. It was a cold-blooded murder. The accused came for the second time, determined to see that their victim did not possibly escape the assassins’ hands._ In view of the above legal principle, the number of witnesses is immaterial and if the evidence of single one witness is believable, the Court can rely upon that evidence. The doctor, who treated PW1, supported the evidence. Even though other witnesses did not support the occurrence, the evidence of PW1 is sufficient to prove the offence. Therefore the conviction u/s.324 and 452 IPC is only to be confirmed. 7. The learned counsel appearing for the appellant submitted that the incident had occurred 17 years back, the revision petitioner is now aged 54 years, he had already undergone 7 days imprisonment and no previous criminal antecedents were reported against him, hence leniency may be shown to the revision petitioner. The learned counsel Crl.R.P. No.4338/2006 8 relied the decision in _**Manohar Singh**_ v. _**State of Madhyapradesh**_ [2014 KHC 4500] and _**Vipul Kumar**_ @ v. _**Vipulesh State of Chhattisgarh**_ [2015 KHC 4325]. In view of the decision of this Court in _**Vipul Kumar's case (supra)**_ , the revision petitioner is sentenced to the period he had already undergone and fine of 1 lakh, in₹ default of payment of fine, simple imprisonment for six months. If fine amount is realised, an amount of 75,000/-₹ (Rupees seventy five thousand only) shall be disbursed to PW1, Fathima. The revision petitioner is directed to surrender before the Judicial First Class Magistrate Court, Tirur within 15 days from the date of receipt of a copy of this order to undergo the modified sentence. Crl. R.P. is disposed of as above. ## **P.D. RAJAN, JUDGE.** acd