Rajesh, S/o. Mohandas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **& THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 25TH DAY OF FEBRUARY 2016/6TH PHALGUNA, 1937** ## **CRL.A.No. 1581 of 2011 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 386/2010 of ADDITIONAL SESSIONS COURT (ADHOC-I), KOTTAYAM DATED 23-07-2011** **IN CP 15/2010 OF JUDICIAL FIRST CLASS MAGISTRATE-I, CHANGANACHERRY** ## **APPELLANT(S)/ACCUSED:** **----------------------------------------** **RAJESH, S/O.MOHANDAS, MURINGOOR AREECKAL VEETTIL, AREECKAL BHAGAM KANGAZHA KARA, KANGAZHA VILLAGE.** **BY ADVS.SRI.SHABU SREEDHARAN SRI.C.K.PRASAD SRI.T.S.ANURAJ SRI.B.BALA PRASANNAN** **RESPONDENT(S)/COMPLAINANT:** **----------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE C.I. OF POLICE, VAKATHANAM THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI. K.K. RAJEEV** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ds** ## **P.BHAVADASAN & RAJA VIJAYARAGHAVAN V., JJ** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1581 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th ] day of February, 2016 ## **J U D G M E N T** ## **P. Bhavadasan, J.** The accused in this case was put in the dock and tried for the offences punishable under Sections 302 and 307 of the Indian Penal Code. He was found guilty of the offence punishable under Section 302 of IPC but though acquitted for the offence under Section 307 IPC, he was found guilty of the offence under Section 324 of IPC, resulting in, he being convicted for the said offences and sentence of rigorous imprisonment for life and fine of 25,000/- with a default₹ clause of one year simple imprisonment was imposed for the offence under Section 302 and he was also sentenced to undergo rigorous imprisonment for one year for the offence under Section 324 of IPC. **Crl.A. No. 1581 of 2011** **-2-** 2. The prosecution narrates the incident thus: The deceased is the uncle of PW3. The deceased is also the younger brother of the father of the appellant. The prosecution would allege that on the date of incident, i.e. on 23.10.2009 at about 4.00 p.m., PW6 rushed to the house of PW1 and she is alleged to have told PW1 that PW3, the deceased and the accused were engaged in a quarrel and that he may come and solve the issue. PW1 rushed to the house of PW6. When he reached in front of the house, he found the accused coming out of the house with a blood stained knife in his hand. When he got inside the house, he found PW3 with an abdominal injury said to have been inflicted by the accused. When he went to the next room, he found Sabu, the deceased, lying there motionless. He understood that Sabu was no more. The prosecution would allege that there was a proposal mooted by PW6, the deceased and PW3 to marry the sister of the accused which was not to his liking and she was given in marriage to some **Crl.A. No. 1581 of 2011** **-3-** other person. The sister of the accused had later returned to her parental house. The prosecution would allege that ever since then, all was not well with the two families and they were at loggerheads. That seems to be the motive, according to the prosecution, for the act committed by the accused. 3. Learning about the incident on reaching the house of PW6, PW1 went to the police Station and gave Ext.P1 First Information Statement. It was recorded by PW11, who registered crime as per Ext.P1(a) FIR. PW12 took over investigation. It may be mentioned here that having suffered injury, PW3 went to the hospital and PW9 had examined him and issued Ext.P7 wound certificate. PW12, on taking over investigation, went to the place of occurrence along with the Scientific Assistant and Fingerprint Expert and they initially conducted inquest over the body of the deceased and prepared Ext.P2 report. He seized certain articles found at the place of occurrence. He also prepared **Crl.A. No. 1581 of 2011** **-4-** a scene mahazar Ext.P5 and collected blood sample from the place where there was a pool of blood in the room in which incident had taken place. 4. According to PW12, it seems that the accused was taken into custody on 23.10.2009 itself and was kept under surveillance and his formal arrest was recorded on 24.10.2009. After inquest, the body was sent for Autopsy and Autopsy was conducted by PW10, who prepared Ext.P8 report. In the meanwhile, based on the confession statement said to have been furnished by the accused, MO1 knife was recovered from the house of the victim. Statements of witnesses were recorded and the Investigating Officer prepared a forwarding note to the court seeking the articles seized during investigation to be sent for chemical examination. He filed a report seeking to have Section 324 of IPC initially stated, altered into Section 307 of IPC. He completed investigation and laid charge before court. ## **Crl.A. No. 1581 of 2011** **-5-** 5. The court before which the final report was laid, took cognizance of the offence and finding the offence to be exclusively triable by a Court of Sessions, committed the case to Sessions Court, Kottayam under Section 209 of Cr.P.C. after following the necessary procedures. The said court made over the case to Additional Sessions Court, (Adhoc-I), Kottayam for trial and disposal. 6. The latter court, on receipt of records and appearance of the accused before the said court, framed charges for the offences punishable under Sections 302 and 307 of IPC. 7. To the charge read over to the accused, he pleaded not guilty and claimed to be tried. The prosecution therefore examined PWs 1 to 12 and had Exts.P1 to P11 marked. MOs 1 to 5 were got identified and marked. 8. After the close of prosecution evidence, the accused was questioned under Section 313 Cr.P.C. regarding the incriminating circumstances brought out in evidence ## **Crl.A. No. 1581 of 2011** **-6-** against him. Apart from denying the incriminating circumstances, he also stated that he is innocent. 9. Finding that he could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused examined himself as DW1. 10. The court below, greatly impressed by the evidence of PWs 1, 3 and 6, found that the prosecution has succeeded in establishing the guilt of the accused and held him guilty of the offences punishable under Sections 302 and 324 of IPC. The conviction and sentence as already mentioned followed. 11. The learned counsel appearing for the appellant Sri. Shabu Sreedharan assails the conviction and sentence on several grounds. The learned counsel pointed out that the prosecution has a definite motive for the incident and that is, the annoyance of the accused of the proposal of PW3 seeking to marry his sister. The learned counsel pointed out that, that issue occurred three years **Crl.A. No. 1581 of 2011** **-7-** prior to the incident and going by the evidence of PW6, thereafter, quite often, the accused had been visiting the house of PW6 and even having food from there. There is nothing to show, according to the learned counsel, that earlier dislike was an issue at the time of incident or near to the date of incident to make the accused agitated and act as he did. The learned counsel conceded that motive in a case where there is direct evidence available, may not be of much relevance. However, when a specific motive is alleged and that stands disproved, the case stands on a different footing and the prosecution case will have to be viewed in suspicion. The learned counsel appearing for the appellant then pointed out that going by the evidence on record, PW6 the mother of PW3 and the sister of the deceased, when the accused came to their house at about 4.00 p.m. on the date of incident, rushes out to the house of PW1 and she seeks the help of PW1 to pacify PW3, the deceased and the accused, who were quarreling among ## **Crl.A. No. 1581 of 2011** **-8-** themselves. However, at the time of evidence, PW6 takes a different stand and says that as soon as the accused arrived in her house, she smelt trouble and she ran for the help of PW1. There is nothing to show that there was any reason for her to apprehend trouble from the accused, as even going by her evidence, they were on cordial terms and the accused quite often used to visit their house and even have food from their house. 12. The learned counsel appearing for the appellant then pointed out that if as a matter of fact, the accused wanted to do away with the deceased, it does not stand to reason that he would have woken up PW3 who was sleeping along with the deceased and then proceeded to stab the deceased. Apart from the fact that the motive is not at all proved and also there is shift in the stand of PW3 regarding the origin of the incident, this story of the prosecution of waking up PW3 and then stabbing the deceased does not stand to reason. Further, the learned **Crl.A. No. 1581 of 2011** **-9-** counsel invited attention of this Court to the scene mahazar and pointed out that the cot was placed near the wall and thereby making alteration in the scene of occurrence and also that at the scene of occurrence, the bed, the pillows and the bed sheet were found soaked in water. This, according to the learned counsel, belies the version given by PW3 that water was sprinkled on his face to wake him up and then the accused went on to stab the deceased. 13. The learned counsel pointed out that equally baffling is the conduct of the accused spoken to by the witnesses. While PW1 would say that after the incident, the accused stood in the veranda of the house for about 20 minutes, PW6 would have it as one hour. Both of them however were uniform in their version that, by that time, a lot of people had gathered at the place. It is interesting to note, according to the learned counsel for the appellant that both PW1 and PW6 say that by that time, the Ambulance and the Police had arrived at the spot. Referring to the ## **Crl.A. No. 1581 of 2011** **-10-** evidence of PW3, it was pointed out that he walks out of the house, hires an auto and goes to the hospital. Drawing attention to the wound certificate namely, Ext.P7 relating to PW3, the learned counsel pointed out that the history given is “stabbed by a person with a knife”. The doctor has stated that the history was given by the patient himself. The learned counsel also pointed out that no one had accompanied PW3 to the hospital and he had gone all alone. If as a matter of fact, the stab was inflicted by the accused, nothing prevented the victim i.e., PW3 from naming him to the doctor. 14. Finally, it is pointed out by the learned counsel that it is too much to believe that the accused would hide the weapon used by him in the very same house where the incident took place so as to be recovered by the Investigating Officer. The cumulative effect of all this, according to the learned counsel, is that the prosecution story is inherently improbable and it is very evident from the ## **Crl.A. No. 1581 of 2011** **-11-** materials on record that the incident has not occurred in the manner as alleged by the prosecution. The learned counsel pointed out that an incident might have happened in the house and the accused might have been present there. But unless the prosecution comes out with true version of the incident, it could not be said that the accused is guilty of the offence alleged against him. If there is any doubt regarding the origin, development and culmination of the incident or it is shown that the prosecution version of the incident is inherently improbable, then the benefit of doubt should certainly go to the accused and he is entitled to be acquitted. 15. Countering the above arguments, the learned Public Prosecutor points out that there is nothing to disbelieve the version of PW3 who is the only occurrence witness to the incident and who has no axe to grind against the accused. The learned Public Prosecutor referred to an incident which took place in the morning between three of ## **Crl.A. No. 1581 of 2011** **-12-** them, that is the accused, the deceased and PW3 in an autorikshaw, in which the accused joined them while PW3 and the deceased were going to meet their advocate. It is stated that there was some exchange of words between three of them and that is now projected as a motive for the attack. The learned Public Prosecutor pointed out that when there is direct evidence of PW3 regarding the act committed by the accused, motive becomes irrelevant and it is also contended that there is no reason as to why PW3 should falsely implicate the accused. The learned Public Prosecutor relying on the decision reported in **Ugar Ahir and others** v. **The State of Bihar** (AIR 1965 SC 277) contended that the principle of _falsus in uno, falsus in omnibus_ is not applicable in India and the witnesses cannot be branded as liars. Reliance was also placed on the decision reported in **Krishna Mochi and others** v. **State of Bihar** (Air 2002 SC 1965) to contend for the position that minor inconsistencies and contradictions cannot be given undue importance and ## **Crl.A. No. 1581 of 2011** **-13-** significance so as to doubt the version of the witness. In appreciating the evidence in a case, according to the learned Public Prosecutor, the evidence will have to be read as a whole and it is not proper for the court to place undue importance or significance on minor contradictions to doubt the veracity of the witness. According to the learned Public Prosecutor, such inconsistencies and contradictions are bound to occur due to the perceptional capacity of the witnesses and also due to the long passage of time. It will be unwise and improper on the part of the court to insist for mathematical precision or a photographic memory. The learned Public Prosecutor contended that the court below has chosen to accept the evidence of PW3 and also PWs 1 and 6 and there is no reason as to why this Court should take a different view. In short, the contention is that the appeal is only to be dismissed. 16. The first issue that arises for consideration is the cause of death of Sabu. ## **Crl.A. No. 1581 of 2011** **-14-** 17. As rightly pointed out by the learned Public Prosecutor, PW3 speaks about the infliction of injuries by the accused on the deceased. The evidence of PW3 is to the effect that after returning from the Advocate's office along with the accused in an autorikshaw and the accused getting down near his house and after reaching their house, both of them went to sleep i.e. PW3 and the deceased. While PW3 was deep in sleep, he felt water being sprinkled on his face which woke him up. He woke up and found the accused inflicting stab injury on the deceased. Not satisfied with the said act, PW3 would say that he was also attacked. 18. PW12 conducted inquest over the body of the deceased and furnished Ext.P2 inquest report. Autopsy was conducted by PW10, who furnished Ext.P8 report. Ext.P8 report makes mention of the ante-mortem injuries. They are as follows: “ - Injuries (Ante mortem) 1. Contusion on bridge of nose and adjacent parts. 5x2.5cm. transverse. **-15-** ## **Crl.A. No. 1581 of 2011** 2. Abraded contusion on back of root of neck 2x2cm. on midline. 3. Abraded contusion on front of left shoulder 2x0.5cm. 6cm. below middle of collar bone. 4. Abraded contusion on left flank 1.3x0.3cm. transverse 7.5c. Above top of hip bone. 5. Abraded contusion on under surface of chin 0.7x0.2cm. transverse. 6. Incised wound on left little finger knuckle transverse 1.3cm. bone deep. 7. Incised superficial wound on left first web space 1.5cm. vertical skin deep. 8. Abraded contusion on right middle finger knuckle 0.3x0.3cm. 9. Stab wound on left side of front of chest 4.7x1.7cm. vertical 14.5cm. below root of neck and 2cm. left to midline. The upper end pointed, lower end blunt the wound cut the inter costal cartilage of left 6[th] one 4cm. and pierced the pericardium 3.7cm. and made a penetrating wound into left ventricle 3.2cm. The pericardium contained 100ml. of blood and blood clots. The left pleural cavity contained 2.3 litres of blood and blood clots.” ## **Crl.A. No. 1581 of 2011** **-16-** 19. It makes mention of three incised wounds and other abrasions and contusions. Going by the evidence of PW10, injury No. 9 is the fatal injury. That was on the chest of the deceased. According to PW10, that injury caused the death of the deceased. He also deposed that the said injury could be caused by the use of a weapon like MO1. He is definite that the said injury is sufficient in the ordinary course of nature to cause death of a person. The cumulative effect of the above items of evidence is that there can be no doubt regarding the fact that the death of Sabu was homicidal. 20. The next question that arises for consideration is whether the prosecution has established that the incident occurred as alleged by the prosecution. 21. The evidence in this regard consists of the testimony of PWs 1, 3 and 6. The court below chose to believe them and found all other matters insignificant. It also took aid of the fact that when examined as DW1, the ## **Crl.A. No. 1581 of 2011** **-17-** accused admitted his presence in the scene of occurrence and therefore, the burden was on the accused to explain his presence at the place of incident and explain what had actually occurred in the place. The court below also placed considerable reliance on the recovery of MO1. 22. The evidence of PW1 is to the effect that on the date of incident, at about 4.00 p.m., while he was resting in his house, PW6 came rushing to him and told him that the accused had come to his house and that there was a quarrel between him, PW3 and PW6 which is scene mentioned in Ext.P1 also. When PW1 goes to the house of PW6, he finds the accused coming out of the house with a knife drenched in blood. When he enters the house, he finds PW3 with an injury and PW3 tells him that the injury was caused by the accused. When he enters the next room, he says that he found Sabu lying motionless and he was lying in a pool of blood and he understood that Sabu was no more. He then went to the Police Station to furnish Ext.P1 First Information ## **Crl.A. No. 1581 of 2011** **-18-** Statement. 23. The evidence of PW1 is to the effect that soon after he found the body of Sabu, an ambulance arrived and the Police has also arrived at the spot. What is significant is that he states that the accused remained at the spot with the knife in his hand even when the Police arrived. His version is that the cause for the act committed by the accused is the old proposal mooted by the deceased, PW6 and PW3 to marry the sister of the accused. 24. Considerable reliance is placed by the court below on the evidence of PW3. As rightly pointed out by the learned Public Prosecutor, he is the solitary witness regarding the incident. He is a helper by profession and the deceased is none other than his uncle. He and his mother were staying along with the deceased. On the day of incident in the morning, he and the deceased were going in an autorikshaw to Thiruvalla. On the way they happened to meet the accused. The accused is none other than the son ## **Crl.A. No. 1581 of 2011** **-19-** of his uncle. The accused also joined them. While returning home, they got into a bar and had consumed liquor. When Rajesh, the accused did not dismount the autorikshaw near his residence, there was some exchange of words between the three of them. Soon thereafter, according to PW3, the mother of the accused came to the place and took the accused away from the place. PWs 3 and 6 reached the house in the autorikshaw. Both of them went to sleep on the same cot. PW3 then says that he was woken up by water being sprinkled on his face. When he opened his eyes, he saw the accused inflicting the stab injury on the deceased. When PW3 got up, he was also stabbed. He got out of the house to find PW1 coming along. He is categoric that it was on hearing the hue and cry made by them that PW1 had arrived. He was taken to the Mercy hospital in an auto and he was then taken to the Medical College Hospital at Kottaym for better management. PW3 is definite that the reason for the attack was that the accused did not like the ## **Crl.A. No. 1581 of 2011** **-20-** proposal mooted by the deceased, PW6 and PW3 of marrying the sister of the accused by PW3. 25. Then we have the evidence of PW6 who is none other than the mother of PW3 and the sister of the deceased. All the three of them resided together in the house belonging to the deceased. The relationship between the deceased and his wife was strained and his wife was staying away from him. Even in chief examination, what PW6 says is that the accused quite often used to come to their house and take food from their house. On the date of incident, the deceased and her son PW3 had gone to Thiruvalla. They returned by 3.00 p.m.. Meal was not ready by then. They went to sleep on a cot. At about 4.00 - 4.30 p.m., the accused came to their house. When asked about why he had come, the accused said there was no particular purpose. According to PW6, the accused was drunk. Then surprisingly PW6 says that she apprehended that the accused will pick up quarrel with the deceased and **Crl.A. No. 1581 of 2011** **-21-** PW3 and therefore, to seek the intervention of PW1 to avoid the quarrel, she rushed to the house of PW1. When she and PW1 came along to the house of the deceased, according to this witness, she saw PW3 coming out of the room to the veranda with an injury. He told her that the accused had stabbed him. She went to the room where the deceased had gone to sleep and found him lying on the floor motionless and he had injury on his chest. She then says that when the accused came out of the room, he had a blood stained knife with him. 26. It is true that the accused, when examined as DW1, did admit his presence in the place of occurrence. But he came forward with a different story altogether. The lower court chose to disbelieve the version given by the accused and in fact, we feel that there was a wrong casting of burden on the accused to explain the incident. 27. The question is not one of discrepancies or inconsistencies in the evidence of witnesses, but whether **-22-** ## **Crl.A. No. 1581 of 2011** the prosecution story put forward is believable. Coming to the motive aspect first, one may recollect that the definite motive urged by the prosecution and spoken to by PW6 even at the time of evidence is the proposal of PW3 seeking to marry the sister of the accused. Admittedly, that was three years ago. If there was any rift or bitterness between the two families, one would not expect the accused to go over to the house of PW6 any more nor would one expect PW6 to entertain him and feed him. The evidence of PW6 is to the effect that the accused quite often used to come to their house and take food from their. 28. The learned Public Prosecutor contended that motive in a case where there is direct evidence is insignificant. It is so. But there is an ocean of difference in a case where a specific motive is alleged and the prosecution fails to prove that motive. Such a case stands on a different footing than a case where there is direct evidence and no motive is attributed and the prosecution is ## **Crl.A. No. 1581 of 2011** **-23-** unable to give any motive for the act committed by the accused. Even assuming that the motive cannot be given undue importance or significance, the fact that the motive alleged stands disproved casts suspicion on the prosecution version of the incident. 29. In Ext.P1, though it can be used only for corroborating and contradicting PW1, the version is that PW6 went to the house of PW1 to seek his assistance in pacifying PW3, the deceased and the accused who were engaged in a quarrel in the house of the deceased. However, at the time of evidence, PW6 came forward with a story that no sooner than the accused arrived in her house, she smelt trouble and ran for the aid of PW1. One fails to understand what prompted her to believe that he had come to pick up quarrel, especially, when he was a frequent visitor and he used to take food from that house. Of course, we are not forgetting the fact that PW6 had also stated that the accused was drunk. But she speaks of no previous incident **-24-** ## **Crl.A. No. 1581 of 2011** where the accused had come drunk and picked up quarrel with PW3 and PW6. One cannot omit to note that there is no previous incident spoken to by PW6 regarding any altercation or scuffle or any difference of opinion agitated in the house of the deceased before the incident in question. At the risk of repetition, going by the evidence of PW6, the reason for the attack is the earlier proposal which cannot obviously be true in the context of the evidence adduced in this case. 30. Equally difficult is to believe the story given by PW3. Going by the prosecution evidence as is now available, PW3 and the deceased were sleeping on the same cot. If we go by the evidence of PW6, she had rushed to the house of PW1 anticipating trouble from the accused and there is no evidence even from PW3 of the accused having woken him and the deceased and picked up quarrel with them. All that PW3 says is that he felt water being sprinkled on his face which woke him up and when he woke up, he **Crl.A. No. 1581 of 2011** **-25-** saw the accused inflicting the stab injury on the deceased. This is difficult to believe. One fails to understand what was it that prompted the accused to inflict a stab injury on the deceased and if he in fact wanted to inflict a stab injury, why would he wake up PW3 so as to be a witness to the said incident. The prosecution has not adduced any evidence in this case to show that on the date of incident, the accused had a reason to resort to such a dastardly act. 31. Of course, yes, minor wordy altercation in the autorikshaw is made mention of. But even PW3 has no such case that, that was the reason for the attack. Apart from the artificiality regarding the incident, one has also to notice that the scene mahazar prepared shows that the cot was placed near the wall and the Investigating Officer found that the bed sheet and the pillows were soaked in water. This, to a certain extent, belies the version given by PW3 that water was sprinkled on his face to wake him up. Again, it escapes one's understanding as to why the accused would wake up **Crl.A. No. 1581 of 2011** **-26-** PW3 if his intention was to stab the deceased. At the risk of repetition, one may say that there is no incident suggested or proved by the prosecution which prompted the accused to act as he did. In the absence of any cogent and convincing reason put forward by the prosecution for the accused to stab the deceased, it is difficult to believe the story now put forward by PWs 3, 6 and 1. 32. The next is the conduct of the accused after the incident. Of course, we are not giving much emphasize as regards the evidence of PWs 1 and 6 as to whether the accused was inside or outside at the time when they arrived at the place of incident. That may not be of much consequence. Even though PW6 says that when she arrived along with PW1, she saw the injured coming out of the house and he told her that the accused had inflicted an injury. However, the evidence of PW1 is to the effect that when they reached the house, they saw the accused standing in the veranda with a blood stained knife. Even assuming it to **-27-** ## **Crl.A. No. 1581 of 2011** be a minor inconsistency, the act of the accused standing there for a long time with a knife in his hand seems unnatural. If the intention of the accused was to do away with the deceased, obviously in the normal conduct would be to escape from the place of incident. This assumes importance in the light of the evidence furnished by PWs 1 and 6 that soon after they reached the house and found the deceased dead, an ambulance and police had arrived at the spot. Of course PW12 would dispute this fact. But the version of the Police coming to the spot is stated by PWs 1 and 6 in their chief examination itself and there is no reason to disbelieve them. One fails to understand as to why the Police did not immediately take a statement either from PW1 or PW6 and waited for PW1 to go out to the Police Station to give the statement. The facts as disclosed from the evidence makes it abundantly clear that the Police Officer who had arrived at the spot must have been aware of the fact that a cognizable offence has been committed in which ## **Crl.A. No. 1581 of 2011** **-28-** case he was bound to register a crime immediately. There was no ambiguity or vagueness in the information that he could have gathered at the spot. The failure of the Police Officer to act even after knowing the incident also casts doubt about the prosecution version. 33. To crown it all is the recovery under Section 27 of the Indian Evidence Act. The accused was taken into custody on the date of incident itself and was kept under surveillance till 24.10.2009 when he was formally arrested. It is alleged that based on his confession statement, the knife was removed from heap of fire wood kept on the western side of the house of the deceased. 34. It defies logic and reason to believe that the accused, after stabbing the deceased, stood in the veranda for a considerable time and then goes out of the house and returned later to hide the weapon in the same house. We find it extremely difficult to swallow this story also. ## **Crl.A. No. 1581 of 2011** **-29-** 35. Of course, the accused had examined himself as DW1 in which he put forward a definite incident. Probably, it may be unbelievable. But that does not mean that the weakness of the defence evidence can strengthen the prosecution case. The prosecution has to stand or fall on its own evidence. 36. It is one thing to say that minor inconsistencies and contradictions cannot be ballooned to doubt the veracity of a witness and the genuineness of the evidence adduced by the prosecution. It is quite different thing to say that even going by the evidence adduced by the prosecution, the version given by the prosecution seems to be inherently improbable. When it is found by the court that the incident as disclosed by the prosecution is inherently improbable, it means that the incident has not occurred as alleged by the prosecution. That means the prosecution has concealed certain facts from the court. In the case on hand also, that seems to be the position. We are aware of the ## **Crl.A. No. 1581 of 2011** **-30-** fact that a person lost his life and another person has injured. 37. One more fact needs to be mentioned here. PW3 goes to the hospital on his own and meets PW9, the doctor who attended to him. PW9 is definite that the cause of the injury was given by the injured himself. The cause of injury given by him is “stabbed by a person with a knife at about 4.30 p.m. on 23.10.2009 at Pathanad”. Well we are aware of the decision that it is not necessary that the name of the accused should be disclosed to the doctor. But in a case of this sort, it is inconceivable that the injured would not have named the accused to the doctor, especially, when he had occasion to watch the accused stabbing his uncle to death. 38. On an overall analysis of the evidence, we find that the prosecution version is highly improbable and is inherently improbable and we are of the opinion that the incident has not occurred in the manner as alleged by the ## **Crl.A. No. 1581 of 2011** **-31-** prosecution. If that be so, the benefit of doubt should go to the accused. For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below as against the accused are set aside and it is held that the prosecution has failed to establish the case beyond reasonable doubt. The appellant stands acquitted of all charges levelled against him. He shall be released forthwith if not wanted in any other case. Sd/- **P.BHAVADASAN JUDGE** Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** ds //True copy// P.A. to Judge **-32-** ## **Crl.A. No. 1581 of 2011** # **P.BHAVADASAN & RAJA VIJAYARAGHAVAN V., JJ** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 1581 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25[th ] day of February, 2016 ## **GIST OF J U D G M E N T** ## **P. Bhavadasan, J.** ## xxxxxxxxxxxxxxxxxxx For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below as against the accused are set aside and it is held that the prosecution has failed to establish the case beyond reasonable doubt. The appellant stands acquitted of all charges levelled against him. He shall be released forthwith if not wanted in any other case. ## Communicate the order forthwith. ## **P.BHAVADASAN JUDGE** ## **Crl.A. No. 1581 of 2011** **-33-** **RAJA VIJAYARAGHAVAN V JUDGE** ds