Bose @ Tailor Babu and others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 CRL.A.No. 1633 of 2004() -----------------------SC.310/1999 of ADDL. SESSIONS COURT (FAST TRACK-I), THIRUVANANTHAPURAM .................... APPELLANT: ACCUSED NOS.1 TO 3: ------------------------------ 1. BOSE @ TAILOR BABU, S/O. PATHROSE, THYVILAKOM VEEDU, T.C.33/179, VETTUKADU, KARIKKOKOM MURI, KADAKOMPALLY VILLAGE. 2. ALOCIOUS @ SUNNY, S/O. WILLIAM, THYVILAKOM VEEDU, T.C.33/626, VETTUKADU, KARIKKAKOM MURI, KADAKMPALLY VILLAGE. 3. ROY @ KOCHU, S/O. STANELY, MUKKENAMVILAKOM VEEDU, T.C.33/217, MUKKONAVILAKOM, VETTUKADU, KARIKKAKOM MURI, KADAKOMPALLY VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ ## RESPONDENTS: COMPLAINANT: ------------------------- THE STATE OF KERALA, REP. BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. - BY PUBLIC PROSECUTOR SHRI S.U.NAZAR ADV.SHRI NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ.** --------------------------------------------------------------- ## Crl.A.No.1633 of 2004-C --------------------------------------------- ## Judgment ## Balakrishnan Nair, J. The appellants were accused 1 to 3 in SC No.310/99 on the files of the Additional Sessions Judge, Fast Track Court I, Thiruvananthapuram. Aggrieved by their conviction and sentence for various offences, including the one under S.302 IPC, this appeal is filed. The case of the prosecution is summarised as follows : 2. On 01.01.1998 at 8.45 am, the deceased John Mascrenas and CW1 were travelling in a scooter through Mukkonamvilakam Thaivilakam lane. It is a pathway, going in the east-west direction. The house of the deceased is on the north-western side with reference to the western end of the pathway. When they were travelling through the lane and reached in front of the house of the first accused, A1, A3 and a few other persons rushed to the lane from the house of A1, which is on the southern side of that lane. They obstructed the scooter, and attacked John Mascrenas and CW1, using choppers, knives, iron rods etc. The ## **CRL.A.1633/04** **-2-** incident was seen by PW1 and PW10. Hearing the cry, Pws 2 and 9 came to the scene. The accused threatened the witnesses, waiving the arms in their hands and made their escape. PW2, along with two others took her husband to the nearby hospital. From there, he was taken to the Medical College, where he was pronounced dead. On the basis of the information lodged by CW1, who was injured in the incident, a crime was registered against the accused for the offences under S.302 IPC and also other cognizable offences, including those under S.149 IPC. The police came to the scene on the very same day. Scene mahzar was prepared and the witnesses were questioned. The inquest was also conducted on the very same day. The investigation was completed and the charge was laid before the Magistrate's court by PW16. The learned Magistrate committed the case to the Sessions Court for trial. 3. The Sessions Court framed the charges against the accused for the offences punishable under Ss.143, 147, 148, 149, 341, 323, 324, 326, 307 and 302 IPC. They pleaded not guilty to the charges. From the side of the prosecution, PWs1 to 17 were examined and Exts.P1 to P20 were marked. Material Objects I to V were also ## **CRL.A.1633/04** **-3-** produced. The contradictions in the statements of the witnesses with reference to the earlier statements recorded under Section 161 Cr.P.C. were marked as D1 to D4 from the side of the defence. The accused were questioned under S.313 Cr.P.C., regarding the circumstances, which appeared against them in the evidence. The defence did not examine any witnesses. After hearing both sides, the trial court found the accused 1 to 3 guilty under Ss.341, 324, 326 and 302 read with 34 IPC. For the offence under S.302, they were sentenced to undergo imprisonment for life and also to pay a fine of Rs.25,000/- each and in default, to undergo rigorous imprisonment for three years each. For the other offences also, they were appropriately sentenced. The appellants, aggrieved by the above conviction and sentence, have preferred this Criminal Appeal. 4. We heard Shri.P.Vijayabhanu, learned counsel for the appellant and also M/s.S.U.Nazar and Noble Mathew, learned Public Prosecutors for the State. The learned counsel for the appellants submitted that PWs1 and 10 have never witnessed the occurrence and they are planted by the police to support the prosecution. The learned counsel also pointed out that PWs2 and 9 have not witnessed the ## **CRL.A.1633/04** **-4-** incident. Chances of their witnessing the incident are very remote, it is contended. 5. The prosecution has attempted to prove the case against the appellants, relying on the evidence of the above four witnesses. The learned counsel for the appellants submitted that going through their evidence, it is quite unsafe to rely on them and convict the accused. The learned counsel took us through the deposition of the above witnesses and pointed out various aspects which will cast serious doubts regarding their version. The learned counsel also pointed out that going by the deposition of PW10, he entered the lane from the north between the western end of it and the scene of occurrence. So, PW2 and 9 on coming to the western end of the lane would have noticed the presence of PW10. But, they did not mention that PW10 was standing there. The learned counsel further pointed out that going by the deposition of PW1, he along with his daughter was watching the incident, standing between the eastern end of the lane and the scene of the occurrence. If he was actually present there, CW1 would have mentioned about this in his FI statement P13. PW1, the elder brother of the deceased did not accompany him to the hospital. The wife of the ## **CRL.A.1633/04** **-5-** deceased has taken him in an auto rickshaw in the company of two strangers. If the elder brother of the accused was present there, he would have definitely accompanied his younger brother, who was fatally injured. The explanation offered by the prosecution is that PW1's daughter was with him and therefore, she had to be entrusted to the house of a near relative, before his going to the hospital. The said explanation lacks credence, it is submitted. It is pointed out that his family house was very close to the scene of occurrence and his mother PW9 was there, at the scene of occurrence. So, he could have entrusted his child to his mother and accompanied his injured brother. Therefore, the main witness PW1 is not speaking the truth and he has not witnessed the incident, it is pointed out. The distance between the residence of the deceased and the western end of the lane is 75 metres, as sworn to by the Village Officer. It is so recorded in the scene plan Ext.P6 also. It is pointed out that, if the distance is 75 metres, it is improbable that PWs9 and 10 can reach the scene from their house and watch the incident. Even according to the prosecution, the entire attack was over within 2-3 minutes. The story of PW2 that she used to accompany her husband everyday upto the beginning of ## **CRL.A.1633/04** **-6-** the lane and on that fateful day also, she accompanied him, cannot be believed, submits the learned counsel for the appellants. Going by the evidence of PWs1, 2, 9 and 10, as pointed out earlier, the learned counsel contended that it is quite unsafe to convict the appellants. At **CRL.A.1633/04** **-7-** any rate, they are entitled to get the benefit of doubt, it is submitted. 6. The learned Public Prosecutor, on the other hand, submitted that even if the evidence of PW1 and PW10 are disbelieved, the evidence of PW2 and 9 are quite reliable and natural. They were in the neighbourhood. Their presence is quite natural at the scene of occurrence, immediately after they heard the shouting from the scene. The distance between the western end of the lane and their residential building will come to only 25 to 30 ft. 7. Their evidence coupled with the recovery of weapons under Section 27 on the basis of the confession of accused 1 and 2 proves the guilt of the said accused beyond reasonable doubt. The learned Public Prosecutor also pointed out that the near relatives like wife and mother will not falsely implicate others. They will have a natural desire to have the real culprit punished. So, their evidence cannot be discarded. 8. Regarding Section 27, recovery of two weapons, the learned counsel for the appellants submitted that the proved portions of the confession statement do not show that the accused is the author of concealment and therefore it is quite unsafe to rely on the same. ## **CRL.A.1633/04** ## **-8-** Further, it is pointed out that ordinary weapons available in every house is recovered from places where every one has got access. So, the recovery will not be of any assistance to the prosecution to prove its case, it is submitted. 9. The learned Public Prosecutor also relied on the decision of the Apex Court in _**Zahira Habibulla H.Sheikh and another v. State of Gujarat and others (2004 SCC (Cri.) 999)**_ and brought to our notice the general principles which the criminal courts have to keep in mind while dealing with cases of this nature. He also relied on the decision of the Apex Court in _**State of Maharashtra v. Siraj Ahmed Nisar Ahmed and others 2007(5) SCC 161** ._ Special reference was made to paragraph 30 dealing with how the evidence of the witnesses should be appreciated. It is stated therein that the evidence should be read as a whole. Minor discrepancies on trivial matters not touching the core issue should be ignored. To drive home the above point, the learned Prosecutor also relied on the decisions of the Apex Court in _**Rammi Alias Rameshwar v. State of M.P.(1999(8) SCC 649) and Leela Ram v. State of Haryana (1999 (9) SCC 525).**_ The learned Prosecutor also relied on the decision of the Apex Court in _**Dalip**_ **CRL.A.1633/04 -9-** _**Singh and others v. The State of Punjab (AIR 1953 SC 364)**_ to contend that a close relative will not screen the real culprit and falsely implicate others. **CRL.A.1633/04** **-10-** 10. We gave anxious consideration to the rival submissions made at the Bar. From the materials on record, it is evident that a running battle was going on between the two groups in the area. A few days before the incident, the residential building of the 3[rd] accused was burned. The accused believed that the same was done at the instance of the deceased Johny and CW1. In retaliation for the same, the house of Johny was attacked several times. Johny complained of it before the police and a case was registered against the accused. Earlier a crime was registered against Johny and CW1 concerning the incident of burning down the house of the 3[rd] accused. The motive for the murder was the alleged involvement of Johny in setting fire to the house of the 3[rd] accused. In the above background, if a witness is morally convinced of the involvement of a particular person in the murder, the chances of his giving evidence to implicate that person, by deposing more than what he has witnessed cannot be ruled out. So, while evaluating the evidence of the witnesses in this case, we feel that this Court should be very cautious. In the above background we will refer to the depositions of the witnesses with reference to the ## **CRL.A.1633/04** **-11-** submissions made by the learned counsel for the appellants. 11. Among the four occurrence witnesses, PWs 1, 2, 9 and 10, going by the sequence of events unfolded in their deposition, PW10 reached the scene first. He submitted that he saw the wife of Johny (deceased) returning home after she accompanied Johny upto the lane. She came back running to the lane on hearing the sound. Hearing her cries, Johny's mother also came. At this point of time, PW1 was coming through the lane from east to west along with his child. It would show that PW10 reached the lane at a point between the western end and the scene of occurrence before any other witness came there. Only, thereafter, PWs 2 and 9 came to the scene. If, actually, PW10 was there, PWs 2 and 9 must have seen him first as he was, as stated earlier, between the scene of incident and the western end of the lane. But those two witnesses do not speak about the presence of PW10. There was no reason for the wife and mother of the deceased to suppress his presence there. So, it can be safely concluded that he was not there and therefore, he did not witness the incident. This aspect would cast serious doubt on the version of the prosecution. In this context, we would also refer to the statement of ## **CRL.A.1633/04** **-12-** PW16, the Investigating Officer while he was in the box. CW1 in his FI statement has stated that apart from the accused named by him, three other persons were present there. PW16 in his deposition stated that those three persons were PW1, his daughter and PW10. But CW1 was very familiar with these persons and if they were present, he would have definitely mentioned about the same in the FI statement. A reading of the FI statement would show that there were in fact three strangers, apart from the accused. The above statement of the Investigating Officer has to be taken only as false. He is trying to falsely speak about the presence of witnesses who were not there. This conduct of PW16 casts further doubt on the prosecution case. PW1 in his cross-examination admitted that when he saw Johny (deceased), his wife(PW2) was not with him. He has also stated that when he see Johny for the first time, he (Johny) has reached before the house of the 1[st] accused. Then Johny's wife or mother was not there. It would mean that PW1 and his daughter entered the lane from the eastern side, by the time, the deceased Johny reached in front of the house of the first accused. The lane is straight and in the lane there was no one else other than the persons riding on the ## **CRL.A.1633/04** ## **-13-** scooter, PW1 and his daughter. If that be so, CW1 would have definitely noticed their presence and would have so spoken in the FI statement. The above aspect throws doubt on the claim of PW1. Further, as rightly pointed out by the learned counsel for the appellants, the conduct of PW1 in not accompanying his injured brother to the hospital would appear to be strange. His explanation is that he went to the nearby relative's place to entrust his daughter and thereafter when he came back, Johny was already taken to the hospital. At the scene of occurrence, if the version of PW1 is correct, his mother and wife of the deceased were also present apart from his daughter. He would have in the normal course entrusted his daughter to the mother and gone along with his sister-in-law, PW2 and the injured brother to the hospital. The fact that he did not accompany the injured would lend credence to the defence version that he was not actually there. We think, he appears to have been planted by the prosecution to give false evidence against the accused. We also notice that PWs 2 and 9 speak about the presence of PW1 in the lane. We have already found that the presence of PW1 at the scene of occurrence is doubtful. If that be so, the claim of PWs 2 and 9 that ## **CRL.A.1633/04** **-14-** they saw PW1 and his daughter in the lane would cast doubts on their version also. It strikes at the credibility of their version. So, it cannot be ruled out that they being morally convinced of the involvement of the accused in the death of Johny, were giving evidence against them in order to ensure their conviction. So, we feel that it is quite unsafe to find the appellants guilty of the offences based on the aforementioned evidence of the four occurrence witnesses, Pws 1, 2 9 and 10. There is yet another circumstance which casts serious doubt on the prosecution case. The distance between the western end of the lane and the residence of the deceased is 75 meters as per the deposition of PW7, the Village Officer and as per Exhibit P6 scene plan. If that be so, it is inherently improbable that the mother PW9 would have reached from her house the scene of occurrence within the short time as claimed by the prosecution. But, PW2 also asserts PW9 has reached the scene immediately after her. So, the same also casts some doubt on the version of PW2. The trial court while dealing with the distance between the lane and the house of the deceased held as follows: “15. In this connection, it is pertinent to note that ## **CRL.A.1633/04** **-15-** Ext.P6 plan of the scene of occurrence would show that the house of A1 bearing No.T.C.33/179 is situated 6.33 meters south from the place of occurrence. The prosecution case is that the incident took place in the lane infront of the house of A1. It is true that in Ext.P6 the house of deceased John Mascrenas is not shown. But during cross examination of PWs 1, 2 and 9, the distance between the house of deceased John Mascrenas and the scene of occurrence is brought out. During cross examination of PW1 it is elicited that the distance between the house of Johny and the lane is 15-20 feet. From that distance, the distance towards the place of occurrence is only 10 feet. So, it is further elicited that the distance between his family house and the place of occurrence is 30 feet. So there is absolutely no reason to disbelieve the testimonies of PWs 2 and 9 when they have deposed before court that PW2 reached the scene of occurrence on hearing the big sound stating that they may not be allowed to live and kill them and that PW9 reached there ## **CRL.A.1633/04** ## **-16-** behind PW2 while she was running towards the scene of occurrence.” But, in Exhibit P6 site plan, the house of the deceased is noticed as item 12 and the distance between the house and the western end of the lane is shown as 75 meters. The above quoted finding has been entered by the trial court overlooking the evidence on record and without proper application of mind. 12. If the evidence of the occurrence witnesses is not reliable, we feel that the recovery under Section 27 alone will not be of any assistance to prove the guilt against the accused in view of the facts of this case. In the result, we uphold the challenge made by the appellants against their conviction and sentence. The criminal appeal is allowed. The conviction and sentence passed against the appellants, in S.C.No.310/99 by the Additional Sessions Judge (Fast Track-I), Thiruvananthapuram, is set aside. They shall be set at liberty forthwith, if not required in any other case. ## **K.BALAKRISHNAN NAIR,JUDGE.** ## **CRL.A.1633/04** **-17-** **M.C.HARI RANI, JUDGE.** dsn **CRL.A.1633/04 -18-** # **K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ.** **----------------------------------------------------CRL.A.No.1633 OF 2004** **----------------------------------------------------DATED THIS THE 16[th] DAY OF JUNE, 2008** ## **GIST OF THE JUDGMENT** Balakrishnan Nair, J. xxxxxxxx xxxxxx xxxxxxx In the result, we uphold the challenge made by the appellants against their conviction and sentence. The criminal appeal is allowed. The conviction and sentence passed against the appellants, in S.C.No.310/99 by the Additional Sessions Judge (Fast Track-I), Thiruvananthapuram, is set aside. They shall be set at liberty forthwith, if not required in any other case. ## **K.BALAKRISHNAN NAIR,JUDGE.** ## **M.C.HARI RANI, JUDGE.** dsn