Sibichan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 14TH DAY OF DECEMBER 2012/23RD AGRAHAYANA 1934** **Crl.Rev.Pet.No. 1603 of 2002 ( )** **-------------------------------CRA.282/1999 of ADDL.SESSIONS COURT, ADHOC-I (FAST TRACK), ALAPPUZHA SC.6/1998 of PRINCIPAL ASST. SESSIONS COURT,ALAPPUZHA** **REVISION PETITIONER(S)/APPELLANT/ACCUSED NO.4:** **---------------------------------------------** **SIBICHAN, S/O.VARGHESE, EZHAREYIL VEEDU, WARD NO.14, PUNNAPRA PANCHAYATH PUNNAPRA, ALAPPUZHA.** **BY ADVS.SRI.P.VIJAYA BHANU** **SRI.P.M.RAFIQ** **RESPONDENT/RESPONDENT/RESPONDENT:** **---------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **ADV. SRI. LIJU V. STEPHEN – PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** acd ## **S. SIRI JAGAN, J.** ------------------------------------------- ## Crl.R.P. No.1603 of 2002 ---------------------------------------------Dated this the 14[th] day of December, 2012 ## **ORDER** The petitioner is the 4[th] accused in Sessions Case No.6/98 before the Principal Assistant Sessions Judge, Alappuzha. He along with 19 others were prosecuted for offences punishable under Sections 143, 147, 148, 149, 323, 324 and 307 of the Indian Penal Code. The prosecution case as stated in paragraph 2 of the judgment of the Assistant Sessions Judge is as follows: “On 15.1.95, PW1 had a quarrel with the first accused person at Makki junction. They picked a quarrel about the injury caused by the 1[st] accused and others to PW2 at the compound of Subramanya Swamy temple at Paravoor. PW1 had hit the 1[st] accused with his fist at Makki junction and, therefore, the 1[st] accused had enmity towards PW1. Therefore, the accused persons formed themselves into an unlawful assembly, the common object of which was to cause the death of PW1, and they being armed with deadly weapons viz., sword stick, chopper etc. and using force or violence arrived at the compound of Aravukadu Sreedevi temple at Ward No.12 in Punnapra Panchayat, in Punnapra Village, at 10 p.m. on 18.1.95 and the 1[st] accused caused injury to the left side of the head of PW1 by means of a sword stick, the 2[nd] accused caused cut injuries to the right hand of PW1 with MO1 chopper causing fracture of the bone in the right hand, the 3[rd] accused inflicted cut injury on the left hand of PW1 by means of MO2 chopper bringing about fracture of the bone in the left Crl. R.P.No.1603/02 2 hand, the 4[th] accused made wound on the left leg of PW1 with MO3 sword stick causing fracture of bone in the left leg, the 5[th] accused kicked PW1 on his chest and the other accused persons had also participated in the commission of the offence and thereby the accused persons had committed the offences punishable under the aforesaid sections.” 2. The prosecution examined PWs 1 to 15 and marked Exts.P1 to P16 and MOs 1 to 3. The defence did not examine any witnesses, but, marked Exts.D1 to D2, which are contradictions of the witnesses of the prosecution. After considering the evidence available, the Assistant Sessions Judge acquitted the other 19 accused. Accused No.4, who is the petitioner herein was also found not guilty of the offences charged against him. But, he was found guilty of the offence under Section 326 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- with a default sentence of simple imprisonment for one month. The petitioner filed Criminal Appeal No.282/1999 before the Additional Sessions Judge, Adhoc-I (Fast Track), Alappuzha. The Sessions Judge confirmed the conviction and the sentence, dismissing the appeal. The petitioner is challenging the judgments of the Crl. R.P.No.1603/02 3 courts below. 3. The contention of the petitioner is that there is no reliable evidence to convict the petitioner. The only evidence based on which the petitioner was convicted by the trial court is the evidence of PW1, the medical evidence and the recovery of one of the material objects under Section 27 of the Indian Evidence Act. But, the appellate court found that the recovery under Section 27 of the Indian Evidence Act was inadmissible in evidence. But, the fact that the petitioner knew the place, where the material object was hidden, was taken as a circumstance supporting PW1 taking assistance from Section 8 of the Indian Evidence Act. According to the petitioner, insofar as even for the trial court, who relied on the solitary evidence of PW1 has been relied upon to convict the petitioner, PW1's evidence was unreliable for the most part, in which case corroboration was mandatory, in view of the decisions of the Supreme Court in _**Vadivelu Thevar**_ v. _**State of Madras**_ [AIR 1957 SC 614] and _**Jagdish Prasad and others**_ v. _**State of M.P.**_ [AIR 1994 SC 1251]. It is submitted that the finding of the appellate court that the conduct of the petitioner 4 Crl. R.P.No.1603/02 leading PW13 to the place where MO3 was hidden is relevant under Section 8 of the Indian Evidence Act, itself is unsustainable. According to the learned counsel for the petitioner, once recovery under Section 27 of the Indian Evidence Act has been found to be inadmissible, every part of that piece of evidence is unsustainable and the same cannot even be considered as a subsequent conduct of the accused deriving support from Section 8 of the Indian Evidence Act. If that be so, apart from the solitary evidence of PW1, which itself is not reliable for convicting the other accused as found by the lower courts, there is no piece of corroboratory evidence to convict the petitioner. As such, the lower courts went wrong in convicting the petitioner only on the basis of the evidence of PW1. It is further pointed out that in F.I. Statement given by PW1 himself, he had specifically mentioned five persons as five of the perpetrators of the crime, including the petitioner and the 1[st] accused. But, only two of them, namely the petitioner and the 1[st] accused only have been made accused along with others. At the same time, PW1 himself identified three others who were not named by 5 Crl. R.P.No.1603/02 him in the F.I. Statement, along with the petitioner and the 1[st] accused as persons, who committed the overt acts. There is no explanation by the prosecution as to why the other persons specifically named in the F.I. Statement by PW1 himself, have not been made accused in the case. The petitioner also points out another circumstance to doubt the veracity of the evidence adduced by the prosecution, which is that CW2, who was alleged to be the person present along with PW1 at the scene of occurrence, both of whom had run away on seeing the assailants has not been examined in the case. No explanation is forthcoming as to why he has not been examined in the case. According to the learned counsel for the petitioner, all these circumstances are more than sufficient to disbelieve the evidence of the prosecution including that of PW1, or at any rate, to give him the benefit of doubt so as to acquit him. 4. In answer, the learned Public Prosecutor would argue that the fact that the other accused have been acquitted is no reason to disbelieve the evidence of the prosecution for convicting the petitioner. According to him, PW1 has categorically identified the petitioner as one of the persons, Crl. R.P.No.1603/02 6 who committed the overt act causing injuries to PW1, which evidence is supported by the medical evidence. It is submitted that PW1 identified the weapon used by the petitioner to commit the overt act and the medical evidence supports the case of the prosecution that the injuries sustained by PW1 could have been caused by that weapon. The same coupled with the fact that MO3 was recovered consequent to the subsequent conduct of the petitioner, which is a relevant fact under Section 8 of the Indian Evidence Act, is sufficient to convict the petitioner, is the contention raised by the learned Public Prosecutor. 5. I have considered the rival contentions in detail. 6. The Supreme Court has, in _**Jagadish prasad's**_ case ## (supra), in paragraph six thereof, held thus: “6. As a general rule, a court can and may act on the testimony of a single witness though uncorroborated provided the testimony of that single witness is found out entirely reliable. In that case, there will be no legal impediment for recording a conviction. But if the evidence is open to doubt or suspicion, the court will require sufficient corroboration. In this connection, reference may be made to a decision of this Court in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 wherein this court has classified the testimony of a witness into three categories viz. (1) wholly reliable (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable and observed that though in the first two categories of classification, there may not be any Crl. R.P.No.1603/02 7 difficulty in coming to a conclusion either accepting or rejecting the testimony but it is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony either direct or circumstantial.” In this case, the only oral evidence available to support the prosecution case against the petitioner is that of PW1. The trial court itself found that his evidence is not wholly reliable. Therefore, he must be included in the third category of witnesses mentioned in the Supreme Court decision. In fact, his evidence is riddled with the discrepancies pointed out by the learned counsel for the petitioner. If that be so, corroboration in material particulars in respect of the commission of the crime, as against the petitioner is mandatory. Of course, the trial court found sustenance from the recovery of the material object allegedly used by the petitioner as weapon, under Section 27 of the Indian Evidence Act, as a corroborative evidence. But, the appellate court found that the recovery is unacceptable as a piece of evidence, insofar as the confession allegedly made by the petitioner is not that he is the author of the concealment but only that he can show the weapon available at a particular place. I am of 8 Crl. R.P.No.1603/02 opinion that once the entire recovery itself has been held to be unsustainable and inadmissible in evidence, the court cannot rely on Section 8 of the Indian Evidence Act to hold that, that part of the recovery process, in which, the petitioner led PW13 to the weapon, as a subsequent conduct of the petitioner. Therefore, I am of opinion that the appellate court went wrong in deriving sustenance from that fact based on Section 8 of the Indian Evidence Act. That leaves only the medical evidence as corroboration of PW1's evidence. The medical evidence is only to the effect that the some of the injuries sustained by PW1 could have been caused by MO3, which is identified by PW1 as the weapon used by the petitioner to cause injury to him. But, that can be accepted as evidence only if PW1's evidence is reliable. For relying on PW1's evidence, some other corroborative evidence is necessary, which is lacking in this case. Apart from that, as rightly pointed out by the learned counsel for the petitioner, the prosecution has sadly failed to explain as to why the other three persons specifically mentioned by PW1 in his F.I. Statement were not made accused in the case. Likewise, there is no explanation how Crl. R.P.No.1603/02 9 PW1, without naming the three accused in the F.I. Statement, identified them as perpetrators of the crime, while giving evidence as PW1. It is also not explained as to why CW2, the person, who was with PW1 at the scene of the occurrence was not examined as a witness in the case. For all these reasons, I am of opinion that the petitioner could not have been convicted solely based on the testimony of PW1, without any corroboration. At the least, he is entitled to benefit of doubt. 7. Accordingly, I am of opinion that the conviction of the petitioner based on the sole evidence of PW1 is unsustainable. Consequently, the judgments of the courts below are set aside and the petitioner is acquitted giving him the benefit of doubt. His bail bond is cancelled and he shall be set at liberty forthwith. The Cr.R.P. is allowed as above. ## **S. SIRI JAGAN, JUDGE** acd Crl. R.P.No.1603/02 10 Crl. R.P.No.1603/02 11