Mathew Joseph @ Daice S/O Joseph & Sajas S/O Abdulkhader v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 30TH DAY OF JUNE 2016/9TH ASHADHA, 1938** ## **CRL.A.No. 440 of 2012 ()** **------------------------(AGAINST THE JUDGMENT DATED 07-02-2011 IN SC 387/2009 of ADDITIONAL SESSIONS COURT (ADHOC-1), THODUPUZHA)** ## **APPELLANTS/ACCUSED:** **----------------------------------** **1. MATHEW JOSEPH @ DAICE S/O JOSEPH, MALAMPURATH VEETTIL, KOOTTICKAL KARA, KOOTTICKAL VILLAGE.** **2. SAJAS S/O ABDULKHADER, THANATHUPARAMBIL/KANATHUPARAMBIL VEETTIL, KOOTTICKAL TOWN, KOOTTICKAL VILLAGE, MUNDAKAYAM.** **BY ADVS.SRI.SHAIJAN C.GEORGE** **SRI.FEMY A ANTONY. SMT.S.REKHA KUMARI SRI.SUNIL V.MOHAMMED SMT.SAJITHA GEORGE** ## **RESPONDENT/COMPLAINANT:** **--------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT. V.H. JASMINE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AMG** ## **C.K. ABDUL REHIM, J. & B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Crl. Appeal No. 440 OF 2012** ------------------------------------------------DATED THIS THE 30[th] DAY OF JUNE, 2016 ## **J U D G M E N T** ## Sudheendra Kumar, J: The appellants are accused in SC No.387/2009 on the files of the III[rd] Additional Sessions Court, Thodupuzha who in this appeal challenge the conviction and sentence passed by the court below under Sections 511 of 379 and 302 read with Section 34 of Indian Penal Code. 2. The prosecution allegation is that on 30-07-2006 at about 1.50 p.m., the appellants attempted to commit theft of telephone post lying on the side near to KuttiplangattuKoottickal Road and in that attempt, the appellants beat the deceased, namely, Rajesh Kumar @ Rajesh with MO4 stone, fisted him with hands, kicked and tied the string worn by the deceased with 'rudhraksham' around the neck of the deceased and as a consequence, the deceased sustained injuries and the injuries sustained by the deceased were ## **Crl. Appeal No. 440/2012** -2- sufficient in the ordinary course of nature to cause the death of the deceased and the deceased succumbed to the injuries on the way to the hospital. 3. In connection with the above incident, PW1 went to the police station and lodged Ext.P1 F.I. Statement. The above statement was recorded by PW30 and thereafter, PW30 registered Ext. P1 (a) F.I.R at 4.55 p.m. on 30-072006. PW27 took over the investigation at 8.30 a.m. on 30-07-2006. PW27 conducted inquest on the body of the deceased on 31-07-2006 at 8.30 a.m. and prepared Ext.P2 inquest report. He also visited the place of occurrence at 11.45 a.m. on 31-07-2006 and prepared Ext.P6 scene mahazer. PW30 arrested the appellants at 6.30 p.m. on 31-07-2006. When questioned, the 1[st] appellant had given Ext.P3 (a) disclosure statement and pursuant to Ext.P3 (a) disclosure statement and as led by the 1[st] appellant, MO5 dhothi was recovered by PW30 at the instance of 1[st] appellant. When questioned the 2[nd] appellant, he had given Ext.P7 (a) disclosure statement and as per Ext.P7 (a) disclosure statement and as led by the 2[nd] appellant, MO17 ## **Crl. Appeal No. 440/2012** -3- pants and MO18 shirt were recovered by PW30 at the instance of the 2[nd] appellant. The investigation was taken over by PW28 on 01-08-2006. He questioned the witnesses and conducted the investigation. In the meantime, PW30 was promoted as Circle Inspector of Police and transferred from there. Subsequently, he was posted as Circle Inspector of Police, Peermede. PW30 verified the records and filed the final report before the court. 4. In the trial, PW1 to PW30 were examined and Exts.P1 to P28 series were marked for the prosecution, besides identifying MO1 to MO18. DW 1 to DW3 were examined and Exts. D1 to D8 were marked for the defence. Exts. X1 and X2 were marked as court exhibits. 5. The court below, after evaluating the evidence, found the appellants guilty under Sections 511 of 379 and 302 read with Section 34 IPC and convicted them thereunder and sentenced each of the appellants to rigorous imprisonment for life and a fine of Rs.50,000/- each with a default clause for rigorous imprisonment for 3 years each under Section 302 read with Section 34 IPC and ## **Crl. Appeal No. 440/2012** -4- rigorous imprisonment for 1½ years each and a fine of Rs.2,500/- each with a default clause for rigorous imprisonment for 3 months each under Section 511 of 379 read with Section 34 IPC. The court further directed that in the event of realisation of the fine, an amount of Rs.1,00,000/- should be paid to the parents of the deceased under Section 357 (1) Cr.P.C. 6. We have heard the learned counsel for the appellants Sri. Shaijan C. George and the learned Public Prosecutor Smt. V.H. Jasmine. 7. PW5 was the Assistant Sub Inspector of Police, Peruvanthanam Police Station during the relevant period. PW5 reached the place of occurrence at about 1.45 p.m. on 30-07-2006 on getting information about the incident. PW5 stated that when he reached the place of occurrence, he found the deceased lying on the side of the road. He also saw the appellants there. He directed the appellants to take the deceased to the hospital in an autorickshaw and accordingly, the deceased was shifted to the autorickshaw. He was initially taken to the Government Hospital, **Crl. Appeal No. 440/2012** -5- Mundakayam. The doctor after examining the deceased advised to take the deceased to Taluk Hospital, Kanjirappaly. Accordingly, PW5 had taken the deceased to Taluk Hospital, Kanjirappaly in a taxi jeep. The doctor after examining the deceased declared the deceased dead. According to PW5, when he reached the place of occurrence, the appellants were standing near to the deceased, who was lying on the side of the road. Then PW5 directed them to take the deceased to the hospital. However PW5 stated before the police that when he reached the place of occurrence, he found the appellants shifting the deceased to the autorickshaw for being taken to the hospital. PW5 was confronted with the said statement given by him to the police and thereafter, the said portion was proved through the investigating officer. Exhibit D1 is the said contradiction proved through the investigating officer. Exhibit D1 would show that when PW5 reached the place of occurrence, the appellants were attempting to shift the deceased to the autorickshaw. The said contradiction of PW5 is a very important contradiction so far as this case is **Crl. Appeal No. 440/2012** -6- concerned. PW5 further stated that PW5 also accompanied the deceased to the hospital in the same autorickshaw driven by the 2[nd] appellant. The further evidence of PW5 is that PW5 was aware even at that time that the appellants were the culprits in this case. PW5 stated that after reaching the Government Hospital, Mundakayam, PW5 and the police constables took the deceased to the casualty. PW5 further stated that he was advised by the nurse of the said hospital to take the deceased to the Taluk Headquarters Hospital Kanjirapally. When PW5 came out from the hospital, he noticed that the appellants had left the place with the autorickshaw. Therefore, PW5 had to hire a taxi jeep to take the deceased to the hospital. PW5 stated that when he informed the matter to the Sub Inspector of Police, he told PW5 that he was in need of the police jeep for conducting an excise raid. It was because of that reason PW5 had to hire a taxi jeep. However, no explanation had been given by PW5 as to why the deceased was not taken to the hospital in the police jeep in which PW5 reached the place of occurrence. PW5 attempted to correct his earlier **Crl. Appeal No. 440/2012** -7- statement by stating that he actually intended to give statement to the police to the effect that when he reached the place of occurrence, he directed the appellants to take the deceased in the autorickshaw to the hospital. However, it was not stated by PW5 as to why the deceased could not be taken to the hospital in the police jeep. This would also probablize Ext.D1 that when PW5 reached the place of occurrence, the deceased was being shifted to the autorickshaw for being taken to the hospital. It is also not discernible as to why PW5 permitted the appellants to vanish from the Government Hospital, Mundakayam eventhough PW5 was aware even at that time that the appellants were the culprits in this case. 8. The contention of the appellants is that the appellants had seen the deceased in an injured condition and when the deceased was about to be taken to the hospital in the autorickshaw, PW5 and police party reached there. In view of Ext.D1, it is to be inferred that the evidence of PW5 that when he reached the place of occurrence, he directed the appellants to take the deceased **Crl. Appeal No. 440/2012** -8- to the hospital in the autorickshaw, cannot be correct. The further evidence of PW5 would show that he came back to the police station from the Taluk Headquarters Hospital, Kanjirapally when the doctor pronounced the deceased dead. The evidence of PW5 would show that he reached the police station at about 4.30 p.m. 9. The evidence of PW5 would show that the Sub Inspector of Police was informed by PW5 about the incident when PW5 wanted to take the deceased to the hospital in the police Jeep. This would show that the Sub Inspector of Police had clear information with regard to the occurrence even from PW5. However, no crime was registered till 4.55 p.m. At about 4.55 p.m., PW1 reached the police station and lodged Ext.P1 F.I. Statement. PW1 is having only hearsay information regarding the incident. He did not even see the deceased being taken to the hospital from the place of occurrence. On the other hand, PW5 reached the place of occurrence at about 1.45 p.m. on the fateful day on getting information about the incident and thereafter, he had taken the deceased to the Government Hospital, Mundakayam **Crl. Appeal No. 440/2012** -9- and from there to the Taluk Headquarters Hospital, Kanjirappally. PW5 also got information regarding the death of the deceased from the doctor. He also came back to the police station at about 4.30 p.m.. Even then, the crime was not registered on the basis of the statement of PW5. 10. It is in this back drop that we will have to evaluate the evidence of other occurrence witnesses. PW4, PW6, PW7, PW8, PW11, PW12, PW19, PW20, PW25 and PW26 were examined by the prosecution as occurrence witnesses. However, PW19 and PW20 did not support the prosecution case. PW6 supported the prosecution case partially. The other witnesses supported the prosecution case. 11. Now the question to be considered is as to whether the evidence of the above mentioned ocular witnesses can be relied upon to bring home the guilt of the appellants. 12. The learned counsel for the appellants has argued that all the above said witnesses are persons planted by the prosecution to speak for the prosecution and in the said circumstances, their evidence cannot be accepted. Per **Crl. Appeal No. 440/2012** -10- contra, the learned Public Prosecutor has argued that the above said witnesses are natural witnesses who had witnessed the incident and hence their evidence can be safely acted upon to convict the appellants. 13. We will evaluate the evidence of the above said witnesses one by one. PW4 stated that at about 2 p.m. on the fateful day, while he was passing through KokkayarKuttiplangattu estate road, he was informed by PW11 and CW17 (not examined) that he should be careful in proceeding along that road as the deceased was attacked by the appellants with stones and also by stamping and the deceased was about to die. When PW4 proceeded along the said road, he found both the appellants hitting the deceased with stones on his face and chest. He also found the appellants stamping him. The deceased was lying on the road at that time. When PW4 intervened, he was threatened by the appellants with a stone. Due to fear, he left the place. He proceeded towards Koottickal area. When he reached Koottickal, he saw PW1. He told PW1 about the incident. Then, PW1 enquired PW4 as to whether they could save the ## **Crl. Appeal No. 440/2012** -11- life of the deceased. While they were talking, PW4 saw a police jeep coming from Mundakkayam side towards Kuttiplangattu. PW4 stated that he saw only PW11 and CW17 near to the spot. 14. PW7 is another occurrence witness. PW7 stated that when he reached the place of occurrence, he found the deceased lying on the side of the road. At that time, the 2[nd] appellant was beating the deceased with hands and the 1[st] appellant was stamping the deceased. PW7 did not see PW4, eventhough there is only one road in that area. The evidence of PW7 would show that he had given statement to the police that the 1[st] appellant had caught hold of the hands of the deceased from behind and at that time, the 2[nd] appellant beat the deceased on his head, face and chest with a stone. However, since PW7 denied to have given such a statement to the police, Exhibit D2 (a) contradiction was marked through PW7 and proved through the investigating officer. Exhibit D2 (b) contradiction of PW7 was also proved through the investigating officer. Ext.D2 (a) would show that PW7 reached the place along with PW11 **Crl. Appeal No. 440/2012** -12- and CW17. However in Ext. P5 statement given by PW7 under Section 164 Cr.P.C, PW7 did not state that he reached the place of occurrence with PW11 and CW17. PW4 did not see any person other than PW11 and CW17 at or near to the place of occurrence, eventhough all the eye witnesses came to the place of occurrence along the same road as there is no other road to reach the place of occurrence. PW7 stated in Ext.P5 statement that the police had taken the appellants from the spot. However, he did not admit the same before the court. Therefore, Ext.D3 (a) contradiction in the 164 statement of PW7 was marked. PW7 further stated that he saw the deceased near to the place of occurrence nearly one hour prior to the incident. However only after one hour thereafter, he heard the screaming sound of the deceased. This would show that the deceased remained at or near to the place of occurrence for nearly one hour prior to the incident. Having gone through the evidence of PW7, it is clear that PW7 materially deviated from his earlier statement given to the police, when he was examined before the court, with regard to the **Crl. Appeal No. 440/2012** -13- overt acts committed by the appellants. The evidence of PW7 would clearly show that PW7 did not see the appellants using MO4 stone for beating the deceased. However Ext.D2 (a) would show otherwise. It appears that PW7 had given different versions at different stages. Eventhough PW7 had stated before the police as per Ext.D2 (a), when he had given Ext.P5 statement under Section 164 Cr.P.C, he had given a different version that the deceased was not attacked by the appellants with stones. 15. PW11 was another occurrence witness examined by the prosecution to prove the offence. PW11 stated that when he reached the place of occurrence, he found both the appellants fisting and stamping the deceased. PW11 categorically stated that he did not see the appellants using MO4 stone. Exhibit D4 (b) would show that PW11 had given statement to the police that he had seen the appellants hitting the deceased with stones. Ext.D4 (b) was proved through the investigating officer. Thus the evidence of PW11 would show that eventhough he had given statement to the police that the appellants had beaten the deceased **Crl. Appeal No. 440/2012** -14- with stones, he deviated from the said stand when he was examined before the court. Thus, PW11 had also given statement different from the statement given by him before the police when he was examined before the court. It is also to be noted that the evidence of PW7 would show that PW7 and PW11 reached the place of occurrence together. However PW11 stated that he reached the place only after 5 to 6 minutes after PW7 reached the place. PW11 did not see the appellants threatening PW7 with the stone eventhough PW7 stated that he was threatened by the appellants with a stone. PW6 was another occurrence witness examined by the prosecution. He stated that at about 10.30 a.m on the fateful day, he found the deceased and the appellants quarreling each other. He intervened. PW6 stated that they were mockingly quarreling at that time. They were dispersed by PW6. PW6 stated that he saw the 1[st] appellant hitting the deceased with a stone. However, PW6 further stated that it was only for the sake of fun that the 1[st] appellant had hit the deceased with the stone. Eventhough PW6 was examined to prove the motive alleged in this case, **Crl. Appeal No. 440/2012** -15- he did not support the prosecution case with regard to that aspect. So, the evidence of PW6 does not in any way help the prosecution to prove its case. 16. PW8 was another occurrence witness examined by the prosecution. PW8 stated that she saw the appellants holding the deceased person at a place near to the bank of the river. She further stated that the string found around the neck of the deceased was seen held by the appellants at that time. PW8 further stated that PW7 was also present at the place at that time. However, PW7 did not state about the presence of PW8 at the place. The further evidence of PW8 is that she saw only the shifting of the deceased to an autorickshaw and no other incident. PW8 stated that PW7 told about the incident in this case on her way to the place of occurrence. However, PW7 did not say that he had seen PW8. PW8 further stated that he had seen the police taking the deceased in an autorickshaw from the scene. However, PW5 stated that when he reached the place of occurrence, no person other than the appellants and the deceased was present at the scene. Even otherwise, the evidence of PW8 **Crl. Appeal No. 440/2012** -16- would show that the place of occurrence is near to the bank of the river, which is nearly 40 meters away from the place of occurrence alleged by the prosecution. The prosecution has no case that the occurrence took place at the bank of the river as stated by PW8. However, the appellants had a contention that one person was seen in an injured condition at the bank of the river and when the appellants attempted to take that person to the hospital in the autorickshaw belonging to the 2[nd] appellant, the police reached there and nabbed them from there. The evidence of PW8 is found to be not consistent. Eventhough PW8 stated at the beginning that she had seen a person being held by the appellants on the string found on his neck, she subsequently stated that she had seen only the taking of the deceased in an autorickshaw by the police. 17. PW12 stated that the 1[st] appellant stamped on the cheek of the deceased. He also stamped the deceased when the deceased was lying in procumbent. The further evidence of PW12 is that the 2[nd] appellant pulled the string worn by the deceased around his neck. However, PW28 stated that **Crl. Appeal No. 440/2012** -17- PW12 did not state any of the above said overt acts against the appellants when PW12 was questioned by PW28. The said omissions were proved through PW28. This would show that the entire overt acts stated by PW12 before the court were only serious omissions amounting to contradictions. In the said circumstances, the evidence of PW12 cannot be relied on at all. 18. PW25 stated that he reached the place of occurrence at about 1 p.m. Then he saw the 2[nd] appellant fisting on the head, chest and face of the deceased. He also saw the 2[nd] appellant stamping the deceased. PW25 further stated that the 2[nd] appellant beat the deceased with a stone when both the deceased and the 2[nd] appellant were lying on the ground. PW26 is the son of PW25. PW25 stated that after seeing the incident he went to the house and told his son, namely, PW26 about the incident. Thereafter, he came back to the scene of occurrence along with PW26. PW25 is admittedly residing on the other side of the river. 19. PW26 stated that while he was in his house, he received information regarding the incident. Then he took **Crl. Appeal No. 440/2012** -18- his autorickshaw and proceeded to the bank of the river on the other side. On the way, he saw PW25. Then PW25 also told him about the incident. However, PW26 did not take PW25 with him. After reaching the bank of the river, he crossed the river, leaving the autorickshaw on the other side of the river and reached the place of occurrence. At that time, he saw both the appellants fisting the deceased brutally after holding his hands from behind. PW26 stated that the 1[st] appellant held the hands of the deceased from behind and at that time, the 2[nd] appellant fisted him. PW26 also stated that he was threatened by the appellants when he attempted to intervene and hence he left the place. A conjoint reading of the evidence of PW25 and PW26 would show that PW26 had no opportunity to witness the incident. It is to be noted that at one stage of the cross-examination, PW26 clearly stated that he saw only the deceased, appellants and the police men going away from the place of occurrence. 20. The evidence of the witnesses discussed above would show that the deceased was attacked by the ## **Crl. Appeal No. 440/2012** -19- appellants continuously from 10:30 a.m. to 2 p.m. In between, PW4, PW6, PW7, PW8, PW11, PW12, PW25 and PW26 came to the spot and witnessed the occurrence. Most of the said witnesses tried to intervene. However, they were threatened by the appellants and hence they had to retreat. There is no criminal antecedent against the appellants. There is also no evidence that the appellants were carrying any weapon with them. They are not known rowdies of the area. Even then, most of the witnesses had to retreat due to the treat by the appellants when they attempted to intervene. 21. The incident occurred on a public road passing through an estate. It is very difficult to believe that the attack continued for such a long duration. It is also difficult to believe that all those witnesses who attempted to intervene had to retreat without taking any step either to prevent the further attack or to take the injured to the hospital. It is also not the normal human conduct to run away from the place after seeing the incident. It may be possible that some of the persons witnessing the incident **Crl. Appeal No. 440/2012** -20- may leave the place of occurrence due to fear. However, in this case, all the persons, who had witnessed the occurrence left the place without even informing the matter to the police, which, in our considered view, is unbelievable. PW5 stated that when he reached the place of occurrence, apart from the deceased and the appellants, nobody else was there. However, some of the above said witnesses stated that they had witnessed the deceased and the appellants being taken from the place of occurrence by the police. 22. The evidence of PW12 contains vital omissions amounting to contradictions. The evidence of PW7 contains vital contradictions, which are Exts.D2(a), D2(b) and D3(a). The evidence of PW7 is also not tallying with the evidence of PW11. PW5 is the Assistant Sub Inspector of Police, who reached the spot immediately after the incident, on getting information regarding the incident. PW5 had given statement to the police that when PW5 reached the place of occurrence, he found the appellants shifting the deceased to the autorickshaw for being taken to the hospital. However, **Crl. Appeal No. 440/2012** -21- PW5 stated before court that it was on his instructions that the deceased was taken to the hospital in the autorickshaw by the appellants. It is in the evidence of PW5 that he was aware of the fact that the appellants were the assailants in this case. Even then, he did not take any step to prevent them from escaping from the hospital. Since PW5 had given statement different from what he stated before the police, Ext.D1 contradiction was marked through him. The said contradiction was subsequently proved through the Investigating Officer. Ext.D1 contradiction itself is sufficient to totally disbelieve the evidence of PW5. If PW5 had not seen the deceased being shifted to the autorickshaw for being taken to the hospital, he would have naturally taken the deceased to the hospital in the police jeep in which he reached the place. However, no explanation was given by PW5 as to why the deceased was not shifted to the hospital in the police jeep instead of the autorickshaw driven by the second appellant. It is also in the evidence of PW5 that he travelled along with the deceased and the appellants in the autorickshaw to the Government Hospital, Mundakkayam, **Crl. Appeal No. 440/2012** -22- even though the police jeep was available at that time. 23. From the circumstances available in this case, we impelled to hold that the evidence of PW5 that when he reached the spot, he directed the appellants to take the deceased to the hospital in the autorickshaw belonging to the second appellant, cannot be correct. Ext.D1 contradiction would also fortify the above said aspect. A prudent police officer would never permit the culprits to escape once the culprits are available at the place. But, in this case, the evidence of PW5 would show that the appellants escaped while PW5 and others were engaged in shifting the deceased to the casualty of the hospital from the autorickshaw. The above conduct on the part of PW5 cannot be considered as a normal conduct of a responsible police officer. If PW5 had the knowledge that the appellants ware the actual culprits, normally, he would not have provided opportunity for the appellants to escape from the place. Therefore, even though PW5 stated that he was aware even at that time that the appellants were the assailants in this case, the entire evidence of PW5 as **Crl. Appeal No. 440/2012** -23- discussed above would lead to the only inference that PW5 had no such knowledge at that time as stated by PW5. It is not discernible as to why PW5 made glaring contradiction, viz., Ext.D1, when he had given evidence before the court. It is also to be noted that PW5 did not inform the Station House Officer concerned regarding the death of the deceased, immediately when the doctor declared him dead, to facilitate the Station House Officer to register the crime. In view of Ext.D1 contradiction, it has to be inferred that when PW5 reached the place, he saw the appellants attempting to shift the deceased to the autorickshaw for being taken to the hospital. This would probablise the case of the defence that when the police reached there, the appellants were attempting to take the deceased to the hospital in the autorickshaw of the second appellant as they found the deceased lying with injuries on the bank of the river. 24. PW17 noted the following ante-mortem injuries on the body of the deceased as per Ext.P8 post-mortem certificate:- ## **Crl. Appeal No. 440/2012** -24- - “1. Lacerated wound 2x0.5x0.5 cm on the right side of top of head, 7 cm above the top of ear lobe. 2. Lacerated wound 2x0.5x0.5 cm on the right side of back of head 5cm behind the above injury No.1 contusion on scalp 16x10x0.5 cm seen around injuries No.1 & 2 on the right side of head. The skull bone was intact; Brain showed bilateral subarachanoid haemorrhage. Its gyri were flattened and sulci were narrowed. 3. Lacerated wound 1.5x0.5x0.3 cm on the right side of tip of nose. 4. Lacerated wound 1.5x0.5x0.3 cm on the inner aspect of left ear and adjoining part of its tragus. Left temporalis muscle showed contusion over an area 6x4x05. cm. 5. Lacerated wound 2.5x0.5x0.3, placed obliquely on the right side of the face with its upper inner and 2cm outer to the ala of nose. 6. Lacerated wound 1 x 0.50 x 0.5 cm on the right side of chins 2cm outer to midline. 7. Multiple pressure abrasions (ligature marks) of 0.3 cm breadth seen completely encircling the neck over an area of 4cm broad placed 9cm below the right ear, 5cm broad placed 8cm below chin, 4cm broad placed 9cm below left ear and 3.5 cm broad behind the neck 10cm below the occiput. Flap dissection of neck was done under blood less field. Subcutaneous tissue underneath the pressure abrasions showed **Crl. Appeal No. 440/2012** -25- infiltration with blood. Neck muscles on the front of neck showed infiltration of blood. All other neck structures including the hyoid bone, thyroid cartilage, other bones and cartilages, blood vessels, muscles and nerves were normal and intact. 8. Abrasion 4.5 x 1 cm on the right side of forehead 3 cm outer to midline and 3 cm above the eyebrow. 9. Abrasion 4 x 0.5 cm on the middle of forehead 2 cm above the eyebrow. 10. Abrasion 3 x 2.5 cm on the bridge of nose and adjoining part of its root. 11. Multiple small abrasions over an area of 5 x 2 cm on the right side of face and adjoining part of cheek. 12. Abraded contusion, 5 x 3 cm on the left side of face overlaying the prominence of cheek. 13. Abrasion 5 x 2 cm on the under surface of chin on the left side touching the midline. 14. Multiple small abrasions over an area 19x6 cm on the back of right forearm and adjoining part of elbow. 15. Multiple small abrasions over an area of 16 x 10 cm on the back of right arm and adjoining part of shoulder blade. 16. Multiple small abrasions over an area of 15 x 6 cm on the back of left arm and adjoining part of shoulder blade. 17. Multiple small abrasions over an area of 10 x 4 cm on the back left hand and adjoining part of wrist. **Crl. Appeal No. 440/2012** -26- 18. Multiple small abrasion over an area of 21 x 8 cm on the right side of back of trunk touching the midline and 15 cm below the top of shoulder. 19. Multiple small abrasions over an area of 20 x 1`0 cm on the left side of back of trunk 16 cm below the back fold of axilla. 20. Contused abrasions 3 x 2 cm on the right side of front of abdomen overlaying the coastal margin 2 cm outer to midline. 21. Multiple small abrasions over an area of 8 x 4 cm on the front of left leg and adjoining part of knee.” 25. PW17 opined that the death of the deceased was due to the combined effect of strangulation and head injury. PW17 stated that injury Nos.1, 2 and 7 are independently sufficient in the ordinary course of nature to cause death. Injury Nos.1 and 2 could be caused with MO4 stone. Injury No.7 could be caused with MO2 string. Injury Nos.3 to 6 could be caused by fisting and injury Nos.8 to 21 could be caused when that part of the body came into conduct with rough surface or object with movement. It is borne out from the evidence of PW17 coupled with Ext.P8 certificate that injury Nos. 1 and 2 alone could be caused with MO4. This would show that only two injuries were inflicted on the **Crl. Appeal No. 440/2012** -27- deceased with the stone. However, the evidence of the above said witnessed would show that the deceased was brutally hit with MO4 stone. If that be so, there would have been more injuries corresponding to the inflictions on the body of the deceased. Thus, the evidence of PW17 coupled with Ext.P8 postmortem certificate would give rise to the inference that the evidence of the above said witnesses that the appellants inflicted so many brutal injuries on the deceased with MO4 stone, cannot be probable. 26. The Apex Court in Vadivelu Thevar v. State of Madras (1957 KHC 404 = AIR 1957 SC 614) held that Section 134 of the Indian Evidence Act enshrines the well recognised maxim that “evidence has to be weighed and not counted”. Section 134 of the Evidence Act states that “no particular number of witnesses shall in any case be required for the proof of any fact”. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. 27. The Apex Court in Prithipal Singh and Others v. State of Punjab and Others (2011 KHC 5008 = (2002) 1 **Crl. Appeal No. 440/2012** -28- SCC 10) held that it is not the number or quantity, but the quality that is material and the evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. 28. The learned counsel for the appellants has submitted that an action council was constituted after the arrest of the appellants, demanding the arrest of the real assailants in this case and thereafter, the witnesses were planted by the prosecution to speak against the appellants. The learned Public Prosecutor, on the other hand, has submitted that the above witnesses had given true evidence regarding the occurrence even though there were some minor discrepancies and contradictions, and in the said circumstances, their evidence has to be relied on by this Court. 29. The Apex Court in Dharam Das and others v. State of U.P. (1973 KHC 553 = AIR 1973 SC 2195) held that unless the exaggeration and falsehood in the evidence are on points destructive of the substance of the prosecution ## **Crl. Appeal No. 440/2012** -29- story, it is the duty of the court to sift the evidence separating the truth from the falsehood and come to its conclusion about the guilt or innocence of the person accused of the offence. It is settled law that exaggeration or falsehood or discrepancy or inconsistency or omission which does not touch the core of the prosecution story is not to be given undue significance if the evidence is otherwise trustworthy. 30. In the case of hand, the evidence of PW30 would show that an action council was constituted by the people in the locality. PW30 was not aware as to whether the President of Peermedu Block Panchayat was the President of the said action council. The evidence of PW30 would show that the appellants were arrested on 31.7.2006 at 6:30 p.m. This would show that the appellants were arrested on the next day of the incident. If that be so, we are unable to understand as to why the action council was constituted. However, since materials are lacking, we are not inclined to make any comment on the same. **Crl. Appeal No. 440/2012** -30- 31. In this case, Ext.D1 contradiction is a very significant contradiction touching the core of the prosecution story. Even though so many persons examined by the prosecution claimed to have witnessed the occurrence, PW5 could not see any such person at the time when he reached the place of occurrence, which also gives suspicion regarding the truthfulness of the evidence of the ocular witnesses examined in this case. It is very difficult to believe that all the persons who witnessed the occurrence, had left the place immediately after witnessing the occurrence. Having gone through the evidence, we are satisfied that the witnesses in this case are only chance witnesses. It is also to be noted that the evidence of PW5 is silent as to whether the deceased was in a position to speak or not at the time when the deceased was taken to the hospital. The evidence of PW8 would show that the string on the neck of the deceased was pulled by the appellants. PW12 also stated that the string around the neck of the deceased was pulled by the appellants. The evidence of PW17 coupled with Ext.P8 certificate would show that by **Crl. Appeal No. 440/2012** -31- pulling the string as stated by PW8 and PW12, it is not possible to have any ligature mark around the neck, as the pressure of the string due to the pulling of the string as stated by PW8 and PW12 would have been exerted only on that portion of the neck, which was in contact with the string. 32. It is true that the evidence of witnesses cannot be treated as not acceptable stating that the said witnesses are chance witnesses, if the evidence is found to be otherwise acceptable. The evidence of occurrence witnesses mentioned above is found to be contradictory to each other on material aspects. The evidence of the above said witnesses is also not tallying with the medical evidence of PW17 coupled with Ext.P8 postmortem certificate. 33. It is settled law that if there are minor contradictions in the evidence of ocular witnesses with the medical evidence, it has to be ignored. However, if the contradictions are so-material that the same would go the root of the case, materially affecting the core of the prosecution case, the court has to form its opinion about the **Crl. Appeal No. 440/2012** -32- credibility of the witnesses and come to the conclusion as to whether their evidence inspires confidence. It is settled legal position that where the evidence of witnesses for the prosecution is totally inconsistent with the medical evidence, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained, it may discredit the entire case of the prosecution. However, the opinion given by the medical witness need not be the last word on the subject. Such an opinion is required to be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. 34. The Apex Court in Gangabhavani v. Rayapati Venkat Reddy and others (2013 KHC 4692 = AIR 2013 SC 3681) held that when the evidence of the prosecution witnesses is totally inconsistent with the medical evidence, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained, it may discredit the entire prosecution case. If the medical evidence rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. **Crl. Appeal No. 440/2012** -33- 35. The Apex Court in Abdul Sayeed and Others v. State of Madhya Pradesh (2010 KHC 4676 = (2010) 10 SCC 259) held that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when the medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of evaluation of evidence. The Apex Court further held in Abdul Sayeed (supra) that where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. 36. In this case, if the evidence of ocular witnesses is believed, the deceased had sustained so many inflictions with stones. However, there is no corresponding injury on the body of the deceased as per Ext.P8 post mortem certificate. It is clear from the medical evidence that only two injuries found on the body of the deceased could be caused with MO4 stone, which itself would render the version of the ocular witnesses, that the deceased sustained so many inflictions on his body with MO4 stone, improbable. ## **Crl. Appeal No. 440/2012** -34- 37. The learned counsel for the appellants has submitted that after obtaining Ext.P8 postmortem certificate, the witnesses were made to state that the appellants inflicted injuries only with hands and legs and in the said circumstances also, the evidence of the occurrence witnesses cannot be believed. The contradictions and the glaring omissions amounting to contradictions in the evidence of the occurrence witnesses, namely, PW7, PW11 and PW12 would clearly show that the said witnesses had deviated from their earlier stand that the deceased was attacked with stones. It is also to be noted that even though the deceased was found lying on the mud road, Ext.P8 certificate coupled with the evidence of PW17 would show that no sand, gravel or mud particle could be detected on the body of the deceased. It is also relevant to note that the shirt of the deceased could not be found out by the Investigating Officers. 38. PW28 stated that the shirt worn by the deceased could not be traced out. In re-examination, PW28 stated that the place of occurrence was near to a river and hence **Crl. Appeal No. 440/2012** -35- there was chance for the shirt to be lost in the river. Ext.P10 scene plan and Ext.P6 scene mahazar would make it clear that the river is 40 metres away from the place of occurrence. Therefore, the said explanation given by PW28 cannot be accepted. 39. The evidence of PW25 and PW26 would show that PW25 and PW26 reached the place of occurrence after crossing the river during the relevant period. The evidence of PW28 would show that there was heavy flow of water in the river during the relevant period. Therefore, it was unlikely that PW25 and PW26 could reach the place of occurrence from their place without swimming across the river. 40. At this juncture, the motive assumes significance. The motive alleged for the occurrence is that the deceased questioned the appellants when the appellants attempted to commit theft of MO6 series of telephone posts from the place of occurrence. However, there is absolutely no evidence to prove the same. Since there is no evidence to prove that MO6 series were attempted to be stolen away by the appellants, it has to be held that the prosecution could ## **Crl. Appeal No. 440/2012** -36- not establish the motive. It was alleged that one of the pieces of MO6 series was attempted to be cut with an hacksaw blade. If the appellants had any intention to steal MO6 series, then MO6 series itself could have been taken away from there without cutting them into pieces with hack-saw blade as alleged by the prosecution. Thus, the motive alleged also is not free from suspicion. It is also difficult to believe that for the purpose of taking away MO6 series, the appellants brutally attacked the deceased with MO4 stone and killed him. It is also pertinent to note that even though the hack-saw blade was with the appellants as per the allegation of the prosecution, no infliction was made on the body of the deceased with the hack-saw blade as per the evidence of PW17 coupled with Ext.P8 postmortem certificate. 41. It is settled law that it is the duty of the prosecution to prove its case beyond reasonable doubt irrespective of the nature of the defence taken by the accused. The improbability or infirmity in the defence taken by the appellants cannot be taken as a circumstance to hold **Crl. Appeal No. 440/2012** -37- that the prosecution could establish its case for that reason, as had been held by the court below. The Apex Court in Chetu and another v. State of Madhya Pradesh (2008 KHC 7247 = (2008) 17 SCC 273) held in paragraph 18 thus:“Despite the clear discrepancies in the evidence of so called eye-witnesses which we have noticed herein before, the High Court, in our opinion, committed a serious error in holding that as the defence could not prove its case, the prosecution must be held to have proved its case”. 42. The Apex Court in State of Kerala v. Anilchandran @ Madhu and Others (2009 KHC 488 = AIR 2009 SC 1866) held that merely because the accused was not able to prove his defence, it cannot be presumed that the prosecution case is proved against him. Since it is settled law that it is the duty of the prosecution to establish its case independently, the observation of the court below that since the defence could not prove its case, it is a circumstance adding more strength to the prosecution story, cannot be sustained. The further observation of the court below that if the defence story is found false, it is a circumstance ## **Crl. Appeal No. 440/2012** -38- throwing some more light to the prosecution story cannot be also sustained. 43. The learned Public Prosecutor has argued that since there is evidence regarding the recovery of bloodstained clothes worn by the appellants at the relevant time, pursuant to the disclosure statement given by the appellants, the appellants are liable to be convicted on the said piece of evidence. The learned Public Prosecutor has further argued that since the nail clippings of the appellants contained human blood belonging to 'O' group, which was the blood group of the deceased, the appellants are liable to be convicted for having caused the death of the deceased. 44. We have anxiously considered the above arguments of the learned Public Prosecutor. The evidence of PW30 would show that when arrested and questioned, the first appellant had given Ext.P3(a) disclosure statement and pursuant to the said statement and as led by the first appellant, MO5 dhothi worn by the first appellant at the relevant time was recovered as per Ext.P3 seizure mahazar. In the same manner, pursuant to Ext.P7(a) disclosure **Crl. Appeal No. 440/2012** -39- statement given by the second appellant in custody, MO17 pants and MO18 shirts worn by the second appellant at the relevant time were recovered as per Ext.P7 seizure mahazar. Ext.P27 report of the Forensic Science Laboratory would show that MO5, MO17 and MO18 contained human blood belonging to 'O' group. It is in the evidence of PW5 that the appellants shifted the deceased to the autorickshaw. It is further in the evidence of PW5 that the deceased was taken to the hospital by the appellants in the autorickshaw of the second accused. Therefore, it was only natural that MO5 worn by the first appellant and MO17 and MO18 worn by the second appellant at the relevant time, were stained with human blood belonging to the deceased. In the said circumstances, the evidence of recovery of blood stained MO5, MO17 and MO18 cannot in any way connect the appellants with the commission of the offence. Ext.P27 would show that the nail clippings of the appellants contained human blood. We have already mentioned that it was an admitted fact that the appellants had taken the deceased to the hospital in the autorickshaw driven by the ## **Crl. Appeal No. 440/2012** -40- second appellant. Therefore, it was only natural that the nails of the appellants happened to be stained with human blood. In the said circumstances, we do not find anything incriminating against the appellants on the said aspect. 45. Having meticulously gone through the evidence on record, we are satisfied that the evidence of occurrence witnesses examined by the prosecution does not inspire confidence. There is absolutely no other material to connect the appellants with the commission of the offence. In the said circumstances, we are of the considered view that the prosecution could not bring home the guilt of the appellants beyond reasonable doubt. Consequently, the conviction and sentence passed by the court below cannot be sustained. 46. In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below against the appellants under Section 511 of 379 IPC and Section 302 read with Section 34 IPC, and the appellants stand acquitted for the said offences. The appellants are in custody. Therefore, it is directed that the **Crl. Appeal No. 440/2012** -41- appellants shall be set at liberty forthwith if their detention is not required in connection with any other case. Sd/- **C.K. ABDUL REHIM, JUDGE** . Sd/- ## **B. SUDHEENDRA KUMAR, JUDGE** . ## **AMG/krj** True copy P.A. to Judge