Sunu Francis @ Sunu S/o Francis v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE P.BHAVADASAN MONDAY, THE 16TH DAY OF JULY 2012/25TH ASHADHA 1934 CRL.A.No. 729 of 2009 ( ) ----------------------------------SC.76/2006 of ADDL.SESSIONS COURT,KOTTAYAM CP.17/2005 of Judicial First Class Magistrate, PALA APPELLANT/ACCUSED: --------------------------------- SUNU FRANCIS @ SUNU S/O.FRANCIS, UPPACHERRIL VEEDU, ANDOOR KARA ELACKADU VILLAGE. BY ADVS.SRI.N.A.MURALEEDHARAN SRI.ISSAC M.PERUMPILLIL RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ.** ------------------------------------------------------------------Criminal Appeal No.729 of 2009-A ------------------------------------------------------------------Dated this the 16[th] day of July 2012 ## Judgment ## **Sasidharan Nambiar, J.** The appellant was convicted and sentenced to imprisonment for life and a fine of Rs.20,000/- and in default, rigorous imprisonment for six months for the offence under Section 302 of Indian Penal Code in SC No.76/2006 by Additional Sessions Judge, Kottayam. 2. The prosecution case is that deceased Augustin @ Appachan has been in possession and enjoyment of 8 cents of land, where an anjili tree was standing. That 8 cents, though belonged to Kuttisir, the son of the elder brother of the deceased, the deceased was enjoying the property. Kuttisir had assigned his remaining property, excluding the 8 cents in 1992 or 1993. On 5.9.2004 at about 11.15 am, on getting information that the anjili tree was being cut, the CRA 729/09 2 deceased Augustine, along with his son PW1 Suneesh, who was then aged only 18 years, rushed to the spot. It was found that the appellant and PWs 2 to 5 were cutting the anjili tree. The deceased Augustine questioned them as to how they could cut the tree. The appellant threatened the deceased not to approach him. When the deceased approached him, with an axe, appellant inflicted an injury on the neck of Augustine, which caused his death. PW18, the Sub Inspector of Police, on getting information, reached the spot. He recorded Ext.P1 First Information Statement of PW1 and prepared Ext.P1(a) F.I.R. and registered the crime. PW20, the Circle Inspector of Police prepared Ext.P11 inquest report and seized MOs 1 to 6 and 9 to 15 including MO1 axe from the scene of occurrence. The scene of occurrence was also described in Ext.P11. PW20 got the scene of occurrence examined by PW17, 3 CRA 729/09 the Scientific Assistant, who prepared Ext.P14 report. The body was sent for autopsy. PW13, Dr.Rajeev conducted autopsy and prepared Ext.P12 post mortem certificate. PW20 arrested the appellant on 8.9.2004. On the information furnished by the appellant, his MO7 and 8 dresses were recovered under Ext.P17 recovery mahazar, in the presence of PW14. After completing the investigation, charge was laid before the learned Magistrate for the offence under Section 302 of Indian Penal Code. The learned Magistrate committed the case to Sessions Judge, who made it over to the Additional Sessions Judge. When charge for the offence under Section 302 of Indian Penal Code was framed, the appellant pleaded not guilty. The prosecution examined 20 witnesses and marked 24 exhibits and identified 18 material objects. CRA 729/09 4 3. After closing the prosecution evidence, when the appellant was questioned under Section 313 of the Code of Criminal Procedure, he denied the incriminating evidence put to him and contended that he did not inflict the injury on the deceased and as instructed by the father of the church, along with others, he had gone to the scene of occurrence and he was removing the shrubs and then, the deceased came from behind with a chopper and when the deceased attempted to inflict an injury on him, somebody resisted it and the appellant does not know how to use an axe and he is innocent. 4. The learned Sessions Judge relied on the evidence of PW1 the eye witness, though PWs 2 to 9 the other eye witnesses turned hostile to the prosecution, and found that the appellant inflicted the fatal injury on the deceased. Relying on the evidence of 5 CRA 729/09 PW13 and Ext.P12 post-mortem certificate, it was found that the injury inflicted by the appellant caused the death and that injury is sufficient in the ordinary course of nature to cause death. The learned Sessions Judge, therefore, convicted the appellant for the offence under Section 302 of Indian Penal Code and sentenced him as stated earlier. It is challenged in the appeal. 5. The learned counsel appearing for the appellant would argue that the evidence of PW1 should not have been relied on at all. It was argued that when the version of PW1 in his Ext.P1 F.I.Statement was that he and the deceased came to know about the attempted cutting of anjili tree and proceeded to the scene of occurrence and the appellant inflicted the injury on the deceased with a ക��ട�ല�, as per the version from the box, PW1, while returning from the church, went to the scene of occurrence and found the CRA 729/09 6 appellant and others cutting the anjili tree. When he questioned their authority to cut the tree, appellant threatened him and PW1 came to his house and informed the deceased, who went to the scene of occurrence, followed by PW1. It was pointed out that from the witness box, PW1 has a case that the injury was inflicted with an axe and in cross examination PW1 admitted that he knows the difference between “മഴ�” and “ക��ട�ല�'' and if that be so and if the appellant had inflicted the injury with the axe, he would not have disclosed in Ext.P1 that the injury was inflicted using a ക��ട�ല�. It was argued that the evidence of PW1 is therefore not at all reliable. The learned counsel argued that the evidence of PWs 2 to 9 do not support the prosecution case and it is proved that the property having an extent of 8 cents does not belong to the deceased and it belongs to Kuttisir and Kuttisir had CRA 729/09 7 permitted the church authorities to cut the anjili tree for the use of the church and as instructed by the vicar of the church, the appellant along with PWs 2 to 8 had reached the scene of occurrence and the evidence of PW20 establish that in addition to MO1 axe, MO11 ക��ട�ല� and MO10 small hatchet, apart from a spade, knives and choppers were recovered from the scene and though MO1 was sent for chemical examination, Ext.P24 report does not show that MO1 contains human blood much less the blood group of the deceased and in such circumstances, it cannot be found that appellant inflicted the fatal injury on the deceased. The learned counsel also argued that appellant at the time of his questioning under Section 313 of Code of Criminal Procedure, stated that he does not know how to use an axe and therefore, it cannot be found that appellant inflicted the injury with an axe and under such 8 CRA 729/09 circumstances, the conviction is not sustainable. The learned counsel finally argued that when the evidence establish that deceased armed with a chopper, along with PW1, reached the scene of occurrence and caused obstruction to the cutting of the tree which was authorised by its owner and when the deceased attempted to inflict injury with a chopper, one among the group of the appellant in the attempt to prevent it, inflicted the injury, appellant cannot be convicted for the offence under Section 302 of Indian Penal Code and hence the conviction is to be set aside. 6. The learned Public Prosecutor pointed out that PW1, son of the deceased furnished Ext.P1 F.I. Statement within 1½ hours of the time of occurrence and at that point of time, PW1 will not foist a false case against the appellant and that too, thereby allow the real culprit to escape. In Ext.P1, it is specifically stated that 9 CRA 729/09 it was the appellant who inflicted the injury on the neck of the deceased. The learned Public Prosecutor argued that the evidence of PW1 shows that he was only 18 years of age at that time and as he was giving the statement within 1½ hours of the death of his father, he cannot be expected to narrate the entire facts in detail. The learned Public Prosecutor also pointed out that the statement in Ext.P1 is also that the injury was inflicted with an axe and from the witness box also, he repeated the same though in Malayalam. He stated in Ext.P1 that the weapon used is ക��ട�ല� and from the witness box, he mentioned it as . The learned Public Prosecutor മഴ� ക��ട�ല� and are one and the argued that both മഴ� same and only the small hatchet is different and hence there is no reason to discard the evidence of PW1. It was argued that the evidence of PW13 with Ext.P12 conclusively establish that the injury inflicted on the CRA 729/09 10 neck caused the death and it was sufficient in the ordinary course of nature to cause death and that injury was inflicted by the appellant as proved by PW1. It is therefore, argued that there is no reason to interfere with the conviction or the sentence. 7. Though PWs 2 to 9 were examined by the prosecution to prove the incident and they admitted that they reached the spot for the purpose of cutting the anjili tree standing in the property having an extent of 8 cents, claimed by the deceased to be in his possession, they turned hostile to the prosecution. As it was along with the appellant that PWs 2 to 9 came to the scene, they cannot be expected to give evidence against the appellant. In such circumstances, the fact that they turned hostile to the prosecution and did not support the prosecution case, cannot be a ground to discard the prosecution case, if there is other acceptable CRA 729/09 11 ## trustworthy evidence to prove the case. 8. PW1 is the son of the deceased. He was aged only 18 years at the time of the incident i.e., on 5.9.2004. It was PW1 who furnished Ext.P1 F.I. statement, which was recorded by PW18, the Sub Inspector of Police who reached there on getting information and found PW1 near the body of the deceased at the scene of occurrence. Ext.P1 F.I. Statement was recorded at 12.45 pm. It is therefore absolutely clear that the first information was furnished by PW1, within 1½ hours of the incident. Being the son, at that point of time, PW1 will not attempt to foist a case against the appellant and that too by allowing the real culprit to escape. If the injury was not inflicted by the appellant, by furnishing Ext.P1, PW1 had allowed the real culprit to escape, which no son will do at that point of time. The evidence of PW1 is to be appreciated in CRA 729/09 12 this background. Though PW1 at the time of examination made some embellishments to his earlier version, viz., he had spoken about the motive for the appellant to inflict the injury on the deceased, which was not disclosed in Ext.P1, the embellishment so made is not material or can affect the crux of the prosecution case and is not a ground to discard the entire evidence. Indian law is not to follow the principle of _Falsus in uno falsus in omnibus._ It is for the court to accept the trustworthy portion of the evidence and discard the unreliable portion. 9. The Supreme Court in **Masalti and another Vs.State of U.P.** (AIR 1965 SC 202) observed that it is unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The plea for rejection of the evidence of a witness CRA 729/09 13 for the reason that part of his evidence is not reliable was considered by the Supreme Court in **Rizan Vs. State of Chattisgarh** (AIR 2003 SC 976) and held : “Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of 'falsus in uno falsus in omnibus' (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding CRA 729/09 14 the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim 'falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar. The maxim 'falsus in uno falsus in omnibus' has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. The State of Uttar Pradesh (AIR 1957 SC 366)). Merely because some of the accused persons CRA 729/09 15 have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and another v. State of Punjab (AIR 1956 SC 460)). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in CRA 729/09 16 each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Navata and another v. The State of Madhya Pradesh (1972 (3) SCC 751) and Ugar Ahir and others v. The State of Bihar (AIR 1965 SC 277)). An attempt has to be CRA 729/09 17 made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and others v. The State of Punjab (AIR 1975 SC 1962)). As observed by this Court in State of Rajasthan v. Smt. Kalki and another (AIR 1981 SC 1390), normal CRA 729/09 18 discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and others v. State of Bihar etc. (2002 (4) JT (SC) 186) and Gangadhar Behera and others - v. State of Orissa (2002 (7) Supreme 276). CRA 729/09 19 10. True, in Ext.P1, PW1 has no case that he had been to the scene of occurrence while returning from the church and found the anjili tree being cut or that his objection was not accepted by the persons who were cutting the tree, including the appellant, and he returned to the house and informed his father about it. It is also true that in Ext.P1, it was not disclosed that when the information was received by his father, he was armed with a chopper as he was cutting the firewood and along with the chopper, the deceased proceeded to the scene of occurrence. But, for that embellishment, we do not find any reason to discard the evidence of PW1 as to how his father sustained the fatal injury. 11. The version in Ext.P1 is only that while the deceased and PW1 were in the house, information was received that the Anjili tree is being cut and so, they proceeded to the scene of occrrence. What CRA 729/09 20 transpired thereafter and how the deceased sustained the injury as stated in Ext.P1 and deposed by PW1 from the box is the same. Thus, the evidence of PW1 is in consonance with his version of the incident in Ext.P1 F.I.statement also. 12. Though it was argued that as the weapon used as per Ext.P1 is hatchet (ക��ട�ല�), and from the box MO1 axe, the evidence of PW1 is not reliable, we find no such difference. Both axe and hatchet are implements used for cutting, splitting or shaping wood. The difference is only on the handle of the implement. MO1 is an axe and MO11 a hatchet. MO10 is a small hatchet (in Malayalam ക�ക��ട�ല�). The version in Ext.P1 is not that a small hatchet is used. As axe and hatchet are used in common parlance to name both the weapons, we find the name of the weapon disclosed in Ext.P1 and mentioned from the witness box, not relevant to CRA 729/09 21 decide either the credibility or the trustworthiness of PW1. According to PW1, on reaching the scene of occurrence, finding that the anjili tree is being cut by the appellant and others, the deceased asked them to stop, questioning their authority to cut the tree. According to PW1, when the deceased proceeded further, the appellant with MO1 axe, inflicted injury on the neck of the deceased, resulting in the cutting of the jugular vein and causing his death. 13. The evidence of PW13 with Ext.P12 postmortem certificate conclusively establish that the death of Augustine was caused by the injury on the neck and that injury is sufficient, in the ordinary course of nature to cause death. The description of the injury which caused the death as proved by the evidence of PW13 and the recital in Ext.P12 post-mortem certififcate is as follows : CRA 729/09 22 “1) Chop wound 7.3x1.8 cm, obliquely placed on the right side of neck with its front lower and 6.5 cm outer to midline and 5 cm below the lower jaw. Its upper edge was bevelled and lower edge was undermined. It cut the neck muscles on the right side, the right external jugular vein and ended by cutting obliquely the 5[th] , 6[th] and 7[th] vertebral bodies of the neck. The 7[th] vertebra was cut and separated. The spinal cord was sectioned at the level of the 5[th] cervical vertebra. The wound was directed downwards and to the left and had a depth of 14 cm. Test for air embolism was positive in the heart.” From the nature of the injury and the fact that the jugular vein was cut, it gives no room for doubt that the death was caused by that injury and that injury is sufficient in the ordinary course of nature to cause death. Evidence of PW13 further establish that the injury could be inflicted by a weapon like MO1. Though CRA 729/09 23 it was argued that the injury on the rightside of the neck of the deceased could not have been inflicted by the appellant standing in front of the deceased, the evidence of PW13 establish that the injury could be inflicted even in that position. Moreover, the position of the coming into contact of the weapon with the part of the body depends upon the exact position of the victim and the assailant at that time. The possibility of the victim moving at the time of the assailant inflicting the injury also cannot be ruled out. Therefore, on that ground also, the evidence of PW1 cannot be disbelieved. 14. Though PWs 2 to 8 admitted that they were there at the scene of occurrence and the deceased had reached there armed with a chopper, none has a case that the deceased had used the chopper either as against the appellant or any one of CRA 729/09 24 them. 15. When PWs 2 to 8 are members of the same group, one cannot expect PWs 2 to 8 to depose against the appellant. That could be the reason for PWs 2 to 8 to turn hostile to the prtosecution case. Evidently, that is the reason for PWs 2 to 8 not to divulge as to how the deceased sustained the injury and deposed that they did not witness it. At the same time, evidence of PW1 establish that though the deceased was armed with a chopper, he did not use or attempt to use the chopper. The evidence of PW1 prove that when the deceased proceeded towards the appellant, appellant inflicted the injury on the neck of the deceased causing his death. On the evidence, we have no hesitation to hold that it was the appellant who inflicted the injury on the neck of the deceased, with the intention to inflict that particular injury. CRA 729/09 25 16. As found earlier, the injury sustained by the deceased on the neck is sufficient in the ordinary course of nature to cause his death. The evidence also conclusively establish that that injury was inflicted by the appellant with the intention to inflict that particular injury and it was not inflicted accidentally. In such circumstances, even an intention to cause death is not necessary, as clause thirdly of Section 300 of Indian Penal Code squarely applies. Hence the offence committed is one under Section 300 of Indian Penal Code. None of the exceptions to Section 300 of Indian Penal Code applies on the facts of the case. In such circumstances, we have no hesitation to uphold the finding of the learned Sessions Judge that the appellant committed the offence under Section 300 and punishable under Section 302 of Indian Penal Code. CRA 729/09 26 The learned Sessions Judge awarded only imprisonment for life in addition to the fine. In such circumstances, the sentence also warrants no interference. The learned Sessions Judge omitted to grant set off. The appellant is entitled to get set of for the period he has been in custody in this case as provided in Section 428 of Code of Criminal Procedure subject to the orders passes by the appropriate authority under Section 432/433 of Code of Criminal Procedure. ## Appeal is dismissed. **M** . **Sasidharan Nambiar, Judge** **P.Bhavadasan, Judge** sta CRA 729/09 27 CRA 729/09 28