Thahira v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 28TH DAY OF JUNE 2019 / 7TH ASHADHA, 1941** ## **CRA(V).No.1418 of 2012** **AGAINST THE JUDGMENT IN SC 256/2009 of ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-III), KASARAGODE** ## **APPELLANT:** **THAHIRA, AGED 25 YEARS, W/O.LATE KHALID @ KHALEEL,PARERI HOUSE,PAIVELIGE,PAIVELIGE GRAMAM,UPPALA,KASARAGOD DISTRICT.** ## **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENT/STATE & ACCUSED 1 AND 2:** - **1 STATION HOUSE OFFICER MANJESHWAR-671323.** - **2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031.** - **3 P.MMUHAMMED @ MUKRI MUHAMMED S/O.LATE MOIDEEN KUTTY,THARIM MANZIL,PAIVALIGE,KASARAGOD-671121.** - **4 ISMAIL S/O.ANDUNHI,KODIYADKA,PAIVALIGE.P.O,KASARAGOD,PIN671121.** **BY ADVS. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.SUNNY MATHEW PUBLIC PROSECUTOR** **SR. PP SRI.S.U.NAZAR** **THIS CRL.APPEAL BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 7.3.2019, THE COURT ON 28.06.2019 DELIVERED THE FOLLOWING:** 2 Crl.A.(V).No.1418/2012 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the wife of the deceased Khalid @ Khaleel challenging the judgment dated 31.1.2012 in S.C 256/2009, by which the accused had been acquitted from the charges levelled against them. Respondents 3 and 4 herein, who were accused in the case, were charge sheeted for the offence under Section 341, 307 and 302 read with Section 34 of the IPC. According to the prosecution, the accused with common intention of committing murder of one Khaleel inflicted a stab injury on him at about 7.30 pm on 20.12.2005. Khaleel succumbed to the injury. When PW15 tried to interfere he also sustained severe injuries. 2. In order to prove the case, the prosecution relied upon the oral testimony of PW1 to PW21 and reliance was placed on Exts. P1 to P29(a) and MO1 to MO13 were the material objects. Defence placed reliance upon Exts.D1 to D10. PW1, 2, 3 and 15 were the occurrence witnesses. PW1 turned hostile to the prosecution. PW2, PW3 and PW15 supported the prosecution case. The court below found that the evidence of PW2, PW3 and PW15 cannot be believed as there are several contradictions in their evidence. That apart PW2 and PW3 were relatives of the deceased as well as the injured and even evidence of PW15 injured eye witness lacks probity. It is also found 3 Crl.A.(V).No.1418/2012 that other independent witnesses who had witnessed the crime had been deliberately withheld from the Court. In that view of the matter, the Court below acquitted the accused. 3. We heard the learned counsel for appellant, learned counsel for the accused and the Public Prosecutor. 4. It is argued by the learned counsel for the appellant that on appreciation of the evidence of occurrence witnesses, especially the injured eye witness, there cannot be any doubt about the involvement of the first accused in the crime. The 2[nd] accused is the person who had given the knife to the 1[st] accused to commit the crime and therefore they entertained a common intention to commit the said crime. The findings of the Court below are totally perverse which requires interference by this Court. 5. On the other hand the learned counsel appearing for the accused while supporting the judgment of the trial Court contended that in so far as the Court below had after appreciating the evidence and having the advantage of taking down the depositions of witnesses had arrived at a finding which is in no way perverse, there is no reason why the appellate jurisdiction be exercised in order to set aside the order of acquittal. 6. There is no dispute about the fact that while considering an appeal against acquittal, this Court will have to bear in mind that there 4 Crl.A.(V).No.1418/2012 is double presumption in favour of the accused. Firstly, presumption of innocence is available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law and secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. It is also held in **Chandrappa v. State of Karnataka** [(2007) 4 SCC 415] that if two reasonable conclusions are possible on the basis of records, the appellate Court should not disturb the finding of acquittal recorded by trial Court. The question of law has been reiterated by Apex Court in **Motiram Padu Joshi & Others** v. **The State of Maharashtra** [(2018) 9 SCC 429], in which reference had been made to **Chandrappa** (supra) and **Kallu alias Masih & Others v. State of M.P** [(2006) 10 SCC 313]. Paragraphs 22 to 24 are relevant which reads as under: “22. It is fairly well-settled that in an appeal against the order of acquittal, the appellate court would be slow to disturb the findings of the trial court which had the opportunity of seeing and hearing the witnesses. In an appeal against the order of acquittal, there is no embargo for reappreciating the evidence and to take a different view; but there must be strong circumstances to reverse the order of acquittal. In the appeal against the order of acquittal, the paramount consideration of the appellate court should be to avoid miscarriage of justice. 23. While considering the scope of power of the appellate court in an 5 Crl.A.(V).No.1418/2012 appeal against the order of acquittal, after referring to various judgments, in _Chandrappa_ v. _State of Karnataka_ , this Court summarised the principle as under: (SCC p. 432, para 42) “ _42_ . From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: ( _1_ ) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. ( _2_ ) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. ( _3_ ) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. ( _4_ ) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. _Firstly_ , the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. _Secondly_ , the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. ( _5_ ) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 24. In _Kallu_ v. _State of M.P._ , this Court held as under: (SCC pp. 317- 18, para 8) “ _8_ . While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence 6 Crl.A.(V).No.1418/2012 and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further, if it decides to interfere, it should assign reasons for differing with the decision of the trial court.” 7. Taking into account the legal frame bond in which an appellate court has to decide an appeal against an order of acquittal, first of all the entire evidence requires to be re-appreciated in order to ensure that there is no perversity in the judgment by which miscarriage of justice has been caused. 8. There is no dispute about the fact that Khaleel died on account of the injury sustained by him. PW12 had conducted autopsy on the dead body and Ext.P17 is the postmortem certificate. The following are the ante-mortem injuries sustained by Khaleel: “1. Spindle shaped incised penetrating wound 2.3x6cm horizontally placed on the front of chest, 3cm on the right of midline and 4.5cm below the collar bone. The wound entered the chest cavity through the intercostal space and pierced the inner aspect of upper lobe of lungs(1.8x5cm). The wound was directed backwards, inwards and slightly downwards for a total minimum depth of 4.5 cm. Chest cavity contained 1 litre of blood with clots. 2. Spindle shaped incised penetrating wound 1.8x8cm obliquely placed on the front of abdomen, 5 cm above the umbilicus in the 1'o clock position. The wound entered the abdominal cavity and terminated by puncturing the front wall of stomach. The wound, directed downward, backward and to the right had a total minimum depth of 3 cms. 3. Abrasion 3x1.5cm on the front of right knee. 4. Abrasion 7x5cm on the front of left knee. 5. Abrasion 1x1cm on the tip of left big toe. 7 Crl.A.(V).No.1418/2012 6. Abrasion 12x8cm on the back of left forearm, close to the elbow. 7. On dissection the scalp tissues just behind the right ear were found infiltrated with blood. Skull and brain were intact. All internal organs were normal. Strange smell of fish curry was present in the stomach contents.” 9. PW12 deposed that Khaleel died due to the injury on the chest involving the lung and injury No.1 and 2 are independently sufficient to cause the death of the victim. He also deposed that the injury could be caused by a double edge weapon like MO1. 10. In the case on hand, the culpability of the accused is evidenced by the oral testimony of PW1, PW2, PW3 and PW15 coupled with the evidence of PW12, PW13 and PW19. 11. Court below disbelieved the evidence of prosecution especially that of PW15 by citing many reasons as under: _A. The witnesses are related or interested witnesses. B. Presence of PW15 at the place of occurrence is highly suspicious and doubtful. He made considerable improvements in his evidence before Court. His first information statement Ext.P20 and his evidence in Court is contradictory in many aspects like_ _(i) How the deceased and PW15 reached Paivaliga Nagar? (ii) Alleged sitting of A1 and A2 on the 'katta' at the time when the deceased and PW15 saw them._ _(iii) His version that A1 sprung upon the deceased and assaulted him._ _C. PW2 and PW3 are not natural witnesses. D. No independent witnesses from the locality were examined. There is no other believable independent corroboration for the version of PW15._ _E. PW15 had long history of crime or criminal antecedents. F. The motive alleged by the prosecution is not inspiring confidence._ 8 Crl.A.(V).No.1418/2012 12. It will be appropriate to look into the points in detail. For the same it is necessary to see the evidence adduced by key prosecution witnesses in its entirety. 13. The incident in the present case occurred on 20.12.2005. Another incident occurred on 9.11.2005. Ext.P11 is an FIS given by Khalid in which reference was made to an incident on 9.11.2005. This incident is cited as immediate reason for enmity and clashes between the two sides. PW14 is Dr.Abdul Hammed. He had examined Khaleel on 9.11.2005 at 9.30 pm. He deposed that on examination he found super fine incised wound over right forearm and patient was discharged on 11.11.2005. Ext.P19 is the wound certificate. 14. Ext.P20 is the FIS in the present case. FIS was given by PW15 on 20.12.2005 at 22.10 hours. On 20.12.2005 afternoon, by about 3 pm, his friend Khaleel called him over telephone and asked him to reach Uppala. He reached Uppala by about 4 pm. He along with Khaleel were roaming around at Uppala in Khaleel's bike. At about 7 pm, they reached Paivalika and had a tea from Khareeb Navas Hotel. By 7.30 pm when they got out from the hotel they saw accused 1 and 2. Both the accused came towards them. They asked Khaleel whether he will give any complaint to the police and caught hold of the shirt collar and pushed him towards the 'Katta' near the hotel. Khaleel wriggled out and moved towards the road. At that time 2[nd] accused 9 Crl.A.(V).No.1418/2012 took a knife from his loin and gave it to the 1[st] accused and said “he should not be spared”. The 1[st] accused came behind Khaleel and pushed him down. While Khaleel was about to get up 2[nd] accused held him and the 1[st] accused inflicted injuries on Khaleel's chest and abdomen. PW15 ran towards them and kicked the 1[st] accused. He also shouted seeing Khaleel in a pool of blood. At that time, the 1[st] accused rose up and inflicted an injury behind him. Hearing his hue and cry people ran towards them. At that time accused ran away. He also stated that the hotel owner Hassainar and Kareem were in front of the hotel. They saw the incident. PW15's brother Hareesh and hotel owner Hassainar took PW15 and Khaleel to Uppala Health Centre. Doctor told that he may be taken to Mangalapuram Hospital. When they reached Uppala Hospital Khaleel was unconscious. He came to know later that Khaleel died. Khaleel's actual name is Khalid and he was called Khaleel. He also stated that there was enmity between 1[st] accused and Khaleel with reference to an incident on 6[th] December at Paivalika. 1[st] accused informed the police about the involvement of Khaleel and subsequently also there was confrontation between them. Khaleel told 1[st] accused that he will inform the police about the sale of ganja by the 1[st] accused and it was the cause of enmity to commit the aforesaid act. 15. PW1 is Ibrahim. He knew the accused as well as the 10 Crl.A.(V).No.1418/2012 deceased. According to him he knew about the incident which happened at Paivalika. It was near 'Katta' (seat) encircling a tree. He is running a petty shop near Gareeb Navas Hotel. The Katta encircling the tree, his shop and hotel are nearby. At the time when the incident happened, he was in his shop. He had not seen accused 1 and 2. He saw Khaleel (deceased) and Radhakrishnan (PW15) coming towards the 'Katta' and some people were sitting there. People sitting there had a scuffle with Khaleel and Radhakrishnan. Thereafter Khaleel was taken to the hospital in a jeep. Radhakrishnan does not have any injury. He does not know who had taken them to hospital. Later he came to know that Khaleel died and heard that Radhakrishnan was taken to hospital at Mangalore. He was a witness to the inquest and he identified his signature in Ext.P1. 16. PW1 turned hostile to the prosecution. Though PW1 turned hostile to the prosecution he admits the fact that the incident happened near 'Katta' in front of the shop. Khaleel was injured and was taken to the hospital. But he does not know whether Radhakrishnan, PW15 suffered injury. However he admits presence of PW15 which lends corroboration to the prosecution case that Khaleel and PW15 had come to the place where the incident occurred. PW1 however does not say anything about the presence of the accused in his chief examination. 11 Crl.A.(V).No.1418/2012 17. PW2 is another eyewitness. He is the brother of Radhakrishnan, PW15. According to him he was at Paivalika at the time when the incident occurred. It was at 7.30 pm. He was near the STD booth of Ashokan. He heard a sound from the side of 'Katta'. When he reached there he saw Khaleel lying down holding chest and he was bleeding. He saw 1[st] accused running through the road towards the side of Bank. He had a knife with him. The 2[nd] accused was seen little away from the road. He heard Khaleel asking Ismail (A2) whether he was also involved. Thereafter, the 2[nd] accused Ismail was not seen. PW2 asked Radhakrishnan as to what happened. He said that when 1[st] accused and Khaleel were fighting, he went to prevent them. At that time the 1[st] accused had stabbed Khaleel and he also suffered injury when he tried to interfere. PW2 further deposed that he took Khaleel to hospital. First he took Khaleel to a hospital at Uppala. The Doctor said he was dead. Thereafter they took Radhakrishnan to Mangalore Hospital and he was admitted there. He also identified MO1 knife. 18. PW3 is another eyewitness. He is an autorickshaw driver. While he was coming back and when he reached Paivalika Nagar near Gareeb Navas Hotel, he saw people running down. He saw 1[st] accused running towards the side of Bank. He saw Khaleel bleeding from chest and abdomen. Khaleel was asking to the 2[nd] accused “whether he too 12 Crl.A.(V).No.1418/2012 was involved”. At that time the 2[nd] accused also ran away towards the side of Bank. Khaleel fell down and thereafter he was taken in the jeep of Mansoor to the hospital by Hareesh, Hassainar and PW15. After 20 minutes, he received a phone call stating that Khaleel died. He is also a witness to Ext.P8 mahazar. Apparently PW2 and PW3 have not seen the incident as such. They came in only after the stabbing of Khaleel. Khaleel was asking Ismail whether he was also involved and hearing the same the 2[nd] accused ran away. They have also seen the 1[st] accused running away from the scene. 19. PW15 is the star witness to the prosecution. PW15 was not believed by the trial Court on account of various so called contradictions which has crept in his evidence. He deposed that on 20.12.2005 Khaleel had called him over telephone and met at Uppala. They together proceeded on the bike of Khaleel to Nissarga Bar at Thalappady. Thereafter they came to Paivalika at about 7 pm. They saw accused 1 and 2 sitting in the 'Katta'. They were talking something without raising their voice. On seeing Khaleel and PW15, accused went to a bakery shop which was closed and near Gareeb Navas Hotel. PW15 was sitting on the 'Katta'. Khaleel said that he was feeling hungry and proceeded to Gareeb Navas Hotel. PW15 did not go. After some time he also proceeded to the hotel. At that time Khaleel was coming from the hotel. A1 and A2 asked Khaleel whether 13 Crl.A.(V).No.1418/2012 he would lodge case against him. Khaleel asked them, what they will do if he gives a case. Both of them started fighting. There was a scuffle. Khaleel wriggled out and came near the shop. A1 and A2 ran behind Khaleel and caught him and brought him by the side of the petty shop. A1 stabbed Khaleel and he fell down. At that time A2 took hold of the collar of Khaleel and he was pulled up. He took a knife from his loin and gave it to A1. With the said knife A1 inflicted injury on the abdomen and chest of Khaleel. PW15 kicked A1 on his buttocks from behind. Khaleel retorted and asked him to run away and stated that otherwise he will also be stabbed. But he did not run and stood with Khaleel. At that time A1 inflicted injury on his chest. Khaleel pulled the hands of A1. At that time his shirt and banyan were torn by the knife. When he tried to run away he was stabbed from behind. He suffered injury on his loin. He cried aloud. Hearing that PW2, Hassainar (CW7), Mujeeb (CW6) and Ibrahim (PW1) came there. At that time A1 ran away with the knife. 2[nd] accused was standing near the road towards Marikai as if he has not seen anything. Khaleel tried to get up to go to the side of hotel and he saw A2 and asked him whether he was also involved. At that time A2 ran to the side of Exchange. Khaleel fell down there itself. He asked for water and water was brought from hotel and given to him. Thereafter Khaleel and PW15 were taken in a jeep by PW15's brother and 14 Crl.A.(V).No.1418/2012 Hassainar to Uppala hospital. He was taken from there to Mangalore hospital. Khaleel remained in Uppala Hospital. Later he knew that Khaleel died. Police has taken his statement. He identified his signature in Ext.P20. He also identified MO1 knife which was used for stabbing Khaleel. 20. PW13 is Dr. James S. Pereira who was the Assistant Surgeon, Taluk Head Quarters Hospital. He deposed that on 20.12.2005 at 8.55 pm, Khaleel was brought dead and the body was shifted to the mortuary. He said that one Ibrahim had brought the body to the hospital. 21. PW19 is Doctor Udhaykumar K. He was the Medico Legal Consultant, Unity Health Complex, Mangalore. He deposed that on 20.12.2005 he had examined PW15 at 8.58 pm. He was brought by one Harish Kumar. He found the following injuries. (i) A stab injury, spindle shaped 2x5 cm on left loin (muscle deep). (ii) Multiple abrasion on the right palm, right elbow and left big toe. (iii) Cut wound 5x5 cm over left chest( skin deep). He was treated as inpatient and discharged on 22.12.2005. Ext.P23 is the wound certificate. He deposed that injuries could be caused by pointed or sharp edged weapon. All the injuries are simple in nature and victim did not disclose the name of assaulter or the time of occurrence. The suggestion of the defence was that it was a self inflicted injury. 15 Crl.A.(V).No.1418/2012 22. It can be seen that the incident happened around 7.30 pm and the FIS was given by 10.10 pm. Therefore there is not much delay in the FIS being recorded by the police. The Doctor, PW13 has stated that the victim was brought dead at 8.55 pm and there cannot be any dispute about the fact that the victim died on account of the injuries sustained to him. 23. On perusal of evidence on record, we are in agreement with the trial Judge that PW15 had made some improvements in his case. Whether those improvements are material so as to be considered as contradictions is the relevant question to be decided. It is well settled that evidence of a witness need not be rejected in full merely because he made some improvements or embellishments that do not go to the root of the matter. In the case of injured witnesses, they may tend to exaggerate the incident out of their enthusiasm to make sure the conviction of their assailants. The crucial factor to keep in mind is whether such improvements make their evidence completely unacceptable. From the facts of the case and evidence placed before us, above-said inferences on witnesses especially that of PW15 are erroneous. 24. As far as the reliability of related witnesses are concerned the position is brought to rest by the Apex Court is ever so many decisions like **Shivanat Singh v. State of UP** [JT 1994 (1) SC 423]. 16 Crl.A.(V).No.1418/2012 Merely because witnesses are related to each other would not make their evidence inadmissible. 25. The finding of the Court that no independent witness was examined by the prosecution is palpably wrong. PW1 is an independent witness. Even defence does not have a case that PW1 is related to the deceased or PW15. It is true that PW1 turned hostile to the prosecution. But as rightly pointed out by the learned counsel for the victim, the evidence of PW1 can be accepted to the extent it supports the prosecution case. It is true that PW1 did not support the prosecution case fully. But it can be seen that he deposed to the following crucial aspects which prosecution attempts to prove through PW15 the injured who is their star witness: - (i) The deceased and PW15 were present at the place of occurrence at the alleged time. - (ii) The deceased was found with bleeding injuries. - (iii) PW15 was present at the spot. - (iv) During cross examination by A1, he stated that A1 was present at the spot. - (v) During cross examination, it is also brought out that PW15 was also taken to hospital. - (vi) PW2, PW3 and Hassainar were the persons who had taken the injured to hospital. 17 Crl.A.(V).No.1418/2012 26. Exts.D4 to D10 were the contradictions with reference to PW15's previous statements. In Ext.D4 the statement in Ext. P20 FIS, he stated that from 4 pm to 7.30 pm they were roaming around Uppala. In his evidence he stated that they were having liquor in a bar. D5 is the portion of his statement in which he had stated that the incident had happened when they were coming out of the hotel after having tea at 7.30 pm. In his evidence he stated that Khaleel was in the hotel for having food and the incident started after that. Ext.D7 is another statement in Ext.P20 in which he had stated that Khaleel had wriggled out and came to the road. Ext.D9 is another statement in Ext.P20 in which he had stated that after wriggling out from A1 Khaleel had come to the road and at that time 2[nd] accused took a knife from his loin and had given to the 1[st] accused. 27. Apparently there are a few contradictions with reference to his evidence before Court and the statement in Ext.P20 FIS. The incident happened at 07.30 p.m. Ext.P20 FIS of PW15 was recorded from Mangalore hospital at 10.10 p.m. and Ext.P24 is the FIR registered by Manjeswaram Police. From the evidence, it is proved that PW15 was admitted in Unity Health Complex, Mangalore on the same day and he was having injuries. It is true that PW15 did not disclose the name of the assailants to the Doctor. But it can be seen that FIS was taken by 10.10 p.m. on the very same day within a few 18 Crl.A.(V).No.1418/2012 hours of incident. The name of assailants are clearly spoken in FIS. As already explained, in this case it cannot be said that the delay in registering FIR caused any prejudice to the accused. Of course, there is evidence to indicate that police failed to register FIR though there are circumstances for them to understand that a cognizable offence was made out from the information. The concerned officer explained that he came to know about the incident at about 08.45 p.m. and that immediately he sent ASI of Police to Mangalore to take statement from PW15 the injured. Ext.P20 FIS of PW15 was recorded from Mangalore hospital at 10.10 p.m. Under such circumstances, we are of the view that the alleged delay in FIR is not fatal to the prosecution case nor prejudicial to the accused. 28. It is settled law that FIS is not an encyclopedia of the incident. It is the first information that is given to the police immediately after the incident. All details of the overt act committed by each and every person cannot be expected, especially from a person who is injured. The fact is that the deceased suffered an injury on the chest and abdomen and the question is whether the first accused had inflicted those injuries. The moot question is whether PW15 had witnessed the said incident. The presence of PW15 in the scene of occurrence is in fact deposed by PW1. The defence contention is that PW15 has sustained injuries in some other incident. But the 19 Crl.A.(V).No.1418/2012 evidence of the Doctor who treated him proves the fact that he was taken to Mangalapuram Hospital on the same day and his FIS was also recorded on the same day. Therefore the fact that PW15 suffered injury in the very same incident is rather proved. Injury may be of a minor nature and may not be fatal. But his presence at the relevant time is proved. Further, despite the contradictions as to how the incident has happened, the fact remains that there was a fight between A1 and Khaleel and in that process, according to the prosecution, A2 handed over a knife to A1 and with the said knife A1 inflicted the fatal injuries on the deceased. 29. Even while cross examining PW1 the presence of PW15 has not been disputed. Therefore PW15 was very much in the scene of occurrence and despite the fact that his narration of events slightly differs from what has been stated in Ext.P20, he narrated the manner in which A1 had inflicted the fatal injuries on Khaleel and PW15. The Court below proceeded on the basis that PW15 received only a single injury from the assault of the 1[st] accused whereas in Ext.P23 the Doctor has noted 3 injuries and therefore it was not disclosed as to how he sustained the other two injuries. Non explanation of such injuries is also a reason for disbelieving PW15. But PW15 in his evidence clearly states “അനനരര മകക മഹമദദ (A1) അന� കത **ക** ക�ണദ എക� ക�ഞക�ദ അടത�യക കതക. അനനരര ഖല�ൽ മകക മഹമദ **ക** � കക പകടകച വലകച. അനനരര കതക എക� ശര�രതദ 20 Crl.A.(V).No.1418/2012 . . �ടക ഷർടര ബ�കയനര മറകഞ ഞ�ൻ ഓട�ൻ ശമകച സമയര എക� പകനകൽ �കനര മകക മഹമദദ കതക കതദ എക� ഇടപകൽ �ടക മറകഞ ന7�ര വന.” Therefore he says about two injuries. Ext.P23 is the wound certificate of PW15. He suffered a stab wound (spindle shaped) 2x0.5cm on the left loin (muscle deep), multiple abrasion right palm, left elbow and left big toe, cut wound 5x0.5cm left chest skin deep. There is one stab wound, one cut wound and multiple abrasion. PW15 had deposed that he kicked the first accused and tried to prevent the attack on the deceased which explains the third injury. Therefore the injuries could be caused in the said incident itself. The Court below committed serious error in observing that the evidence was not enough to prove that PW15 sustained injuries in the said incident. PW15 was taken to hospital by his brother PW2 and he was treated by the Doctor PW19 who had given Ext.P23 wound certificate. PW19 has not been cross examined and the only suggestion was that it might be a self inflicted injury. 30. Yet another reason for the Court below to discard the evidence of PW15 is placing reliance upon Exts.D6, D7 and D9 contradictions made by him with reference to his 161 statement regarding the manner in which the overt act was committed by the 1[st] accused. It is found that PW15 was suppressing certain vital and material facts, as to how he sustained injuries. It is held that in Ext.P20, PW15 had a case that the 2[nd] accused had entrusted the knife 21 Crl.A.(V).No.1418/2012 to the 1[st] accused which was used by A1 to stab Khaleel. Reference is made by the Court below to Ext.D10 statement wherein it is stated that when they reached Paivalika at about 7 pm the accused were sitting in the 'Katta'. On seeing them they went behind the bakery. They went to the 'Thitta' behind the bakery. We don't find any discrepancies in the oral testimony of PW15 with reference to Ext.D10. In his evidence, he states that when they came to the scene they saw accused 1 and 2 sitting in the 'Thitta'. They were talking to each other in a low voice and they went near the bakery which was closed. They were talking something. Even in Ext.P20 the only discrepancy is that he did not give details of the aforesaid incident which apparently is not warranted. 31. Yet another circumstance pointed out by the Court below is based on Ext.D5 contradiction as to how they had come to Paivalika. No mention was made in Ext.P20 that they were consuming liquor and no mention had been made regarding the fact that Khaleel had gone to have food. This is not at all a material contradiction in so far, he would have thought while giving FIS, not to mention about the consumption of alcohol. Further it was observed that the place of occurrence was highly suspicious and doubtful and that PW15 is not a reliable witness. The place of occurrence is very much in the said place. There is nothing to doubt the veracity of the witnesses. In our 22 Crl.A.(V).No.1418/2012 view the finding of the Court below rejecting the evidence of PW15 is clearly erroneous. 32. Of course there is evidence in the case to indicate that Khaleel and PW15 were very close friends and the defence had attempted to prove that PW15 was involved in other cases. But in a case involving murder, the prior conduct of the witness cannot be made a relevant fact. Two questions may arise for consideration. 1) Whether PW15 was present at the time when the offence was committed and 2) whether he had witnessed the incident. In the present case there is clear evidence to prove that PW15 was present along with Khaleel and the defence does not have a different case. Even in the 313 statement of A1 regarding the injury suffered by PW15, the answer of A1 was that he does not know and he denies the other evidence. Even PW1 says that Khaleel was taken to the hospital by PW15, PW2 and PW3. Therefore when the presence of PW15 is proved, the only other question to be considered is his credibility. 33. Yet another circumstance for the Court below to give a finding in favour of the defence is that other independent witnesses were not examined in the case. Of course, the prosecution ought to have examined other witnesses also. But in cases where the crime is being committed by the persons who are involved in several other crimes and has political affiliation and support, common man in the 23 Crl.A.(V).No.1418/2012 locality who had witnessed the incident may not come forward to give evidence on account of fear that they may be targeted by the influential lot. While considering a criminal case, we have to take into account the social realities as well. Therefore when the prosecutor adduces evidence in a case and ensures that sufficient evidence is available, he need not endeavour to examine all the charge witnesses. What is required in a case is proof beyond reasonable doubt to ensure conviction of an accused. Therefore it is for the Court to decide sufficiency of available evidence and in such circumstance absence of examination of other charge witnesses shall not go to the advantage of the accused. Question to be considered is whether available evidence is sufficient or not to convict the accused. 34. To summarize the whole thing, it can be seen that the Court below is of the view that PW2 and PW3 are not believable since they are not natural witness. Even assuming that we agree with the said finding, even without the evidence of PW2 and PW3, the evidence of PW15 is strengthened by the admissible part of evidence by PW1. Presence of PW15, deceased, and A1 is spoken to by PW1. He also stated that the deceased got injured. He even stated that PW2 and PW3 were also found there. Under such circumstances, the finding that the presence of PW15 cannot be believed is not acceptable. Court below went wrong in appreciating the evidence of witnesses who 24 Crl.A.(V).No.1418/2012 deposed to the incident. PW2 and PW3 did not have a case that they saw the actual stabbing. They deposed only the incidents after the alleged overt acts. PW2 stated that he had seen A1 running with a knife at the time when he saw the deceased with injuries on his chest. PW3 also deposed to the same. Both these witnesses deposed that they saw PW15 also there with injuries on his person. Ext.P23 is the wound certificate of PW15. The finding of the Court below that even at the time of trial, PW15 did not have a case as to how he sustained other two injuries is not factually correct. He deposed in his evidence that A1 stabbed him at his back as he was trying to run. He has a case that he kicked A1 using his feet. Minor injury in the foot is indicative of the truth of the said deposition. At any rate, the finding of the trial Judge that PW15 might not have received any injuries from the occurrence cannot be sustained in the light of available evidence. 35. Khaleel was brought dead to the Taluk Head Quarters Hospital, Kasaragod as spoken to by PW13. Postmortem conducted by PW12 proves that it was a homicide and could be caused by MO1 weapon. MO1 knife was recovered by PW21. He deposed that he reached the place of occurrence at 8.45 pm. He heard that one of the injured died while reaching hospital. Other one is admitted in a hospital at Mangalore. He contacted the Manjeswaram Police and gave instruction to take statement of PW15 and the same was 25 Crl.A.(V).No.1418/2012 recorded by PW18. He conducted inquest the next day morning. Material objects from the body of deceased was recovered and MO2 to MO8. Scene Mahazar was prepared at the instance of PW1. He questioned the witnesses. He arrested the 1[st] accused from the autorickshaw stand at 3.10 pm. His statement was recorded. He gave a statement that he ran back to his house with the knife. His shirt and pant were blood stained. On the way to the house he took a lungie and shirt from the western side. The pant, shirt and the knife were thrown to a pit near the washing stone. The extract of the statement is Ext.P8(a) and on the basis of the said statement, he was taken to the place at 4.30 pm and MO12 shirt MO13 pant and MO1 knife were recovered. Ext.P9 is the seizure mahazar. PW4 was a witness to Ext.P9 seizure mahazar. He admitted his signature in Ext.P9, but he stated that he signed Ext.P9 from the premises of a bus stop and accused were not seen along with the Police. PW4 turned hostile. 36. PW21 had stated in his evidence that PW4 was present at the time when the seizure was being made. Despite the fact that PW4 was declared hostile, the fact that MO1 knife involved in the offence was recovered on the basis of confession statement of accused and that too on the very next day, immediately after his arrest cannot be discarded. MO1 has been identified by PW15 and the medical 26 Crl.A.(V).No.1418/2012 evidence indicated that MO1 might be the weapon used for the commission of the crime. From the aforesaid evidence, the involvement of the 1[st] accused is very much clear. The inconsistent version made mention by the Court below as far as PW15 is concerned is regarding certain particulars, which are not all material . When the presence of PW15 is rather proved, there is no reason to doubt his version, despite certain inconsistencies in his version. Further from the evidence of PW2, though he has not seen the incident, he saw the 1[st] accused with a knife. 1[st] accused was running away from the scene. 2[nd] accused was also seen by him. He asked PW15 as to what happened and the answer was that when Mukri Muhammed and Khaleel were fighting he interfered and the 1[st] accused stabbed Khaleel and PW15 also got injured. A2 had given the knife to A1. In cross examination, the presence of PW2 is not disputed and the incidents spoken to by PW15, to PW2, is admissible under Section 8 of the Evidence Act. There is no omission or contradiction in his evidence. The only contradiction pointed out in his evidence is that he had not stated to the Circle Inspector that he was at Paivalika Nagar from 6 pm onwards. Similarly PW3 has also stated that he saw A1 running away from the scene of occurrence. Khaleel asked A2 whether he was also involved. Harish, Hassainar and PW15 had taken Khaleel to hospital. It might be true that PW2 is the brother of PW15 and PW3 27 Crl.A.(V).No.1418/2012 is a distant relative of Khaleel. But PW1 is an independent witness who says that the incident occurred in front of his shop. But according to him he had not seen A1 and A2. He is a hostile witness. His previous statement was confronted by the prosecution and he denied having given such a statement. But as already stated, when PW15's presence in the locality is proved and he is an injured eye witness and gave evidence at the earliest point of time while he was admitted in hospital, that the 1[st] accused had stabbed Khaleel. 37. PW6 had collected the blood sample of PW15 and it was sealed and packed and entrusted to the police on 28.12.2005. PW7 Dr. Anupama had taken the scalp hair of the 1[st] accused and handed over the same in a cover to the police with her signature. Ext.P13 is the cover which bears her signature. The knife was stained with human blood. Of course, the recovery witness turned hostile. There is nothing wrong in taking the evidence of PW15 who has no previous enmity towards the accused in any manner. Ext.P27 is the chemical analysis report. Out of 17 items sent for analysis which includes MO13 and MO14, human blood was found on item Nos. 1 to 13 and 17. 38. As far as A2 is concerned, the specific allegation against him is that he had given MO1 knife to A1 and A1 stabbed the deceased and PW15 using the said weapon. But evidence when perused in its totality would show that A2 did not entertain any 28 Crl.A.(V).No.1418/2012 common intention to commit the offence as alleged by the prosecution. Admittedly, none of the witnesses have a case that A2 committed any overt act other than what is mentioned above. It is in evidence that the deceased had asked A2 whether he was also there for committing the offence. At that time A2 was standing on the road. We do not find any unreasonableness in the conclusion of the trial Court in finding A2 not guilty for the offences charged on the basis of the reasoning we have already stated. 39. When it comes to A1, evidence on record are sufficient to hold him guilty for committing murder of Khaleel. Motive for the commission of the crime is previous enmity developed during election campaign in September 2005. A1 admitted in his 313 statement that the deceased had enmity towards him following the incidents in connection with said election. PW15 who is an injured eyewitness had clearly spoken to the overt acts committed by A1. The said version is corroborated by PW1 to some extent and that of PW2 and PW3. The weapon of offence (MO1) is recovered based on the disclosure statement of A1 and it is found to be blood-stained. MO13 dress of A1 was also found to be stained with human blood. Medical evidence adduced by PW13 and PW19 corroborates the prosecution case put forwarded by PW15. In the result the appeal is allowed in part. 29 Crl.A.(V).No.1418/2012 (i) First accused in S.C.No.256/2009 of the Additional District and Sessions Court (Adhoc) III, Kasaragod is found guilty for having committed the offence under Section 302 of the IPC. (ii) The acquittal of the second accused stands confirmed. (iii) The first accused shall appear in person before this Court on 8.7.2019 at 3.30 pm for hearing on sentence. Post on 8.7.2019. **Sd/-** **A.M.SHAFFIQUE** **JUDGE** **Sd/-** kp True copy P.A. To Judge **ASHOK MENON JUDGE** 30 Crl.A.(V).No.1418/2012 ## **8/7/2019 at 3.30 p.m.** The first accused has appeared in person. By judgment dated 28/6/2019, we have already found him guilty for having committed the offence u/s 302 of IPC. We heard him regarding the sentence. According to him, he is 63 years old. He is a heart patient. He suffers from hypertension and he has got other ailments as well. He has a wife and three children and his mother is aged 90 years. He requests for a compassionate view in the matter. 2. We heard the learned counsel for the 3[rd] respondent as well. He also submitted that taking into account the plight of the accused, the sentence may be reduced. Under Section 302, the punishment is either imprisonment for life or death penalty. Taking into account the factual aspects involved in the matter and especially a case which has arisen against acquittal, the accused is sentenced to undergo imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty thousand only) on default of payment of fine to undergo rigorous imprisonment for a period of three months. The accused shall be entitled for set off, if any, in terms of Section 428 of Cr.P.C. 31 ## Crl.A.(V).No.1418/2012 The Registry shall issue necessary committal warrant against the accused to suffer the imprisonment. Rp **Sd/A.M.SHAFFIQUE JUDGE Sd/ASHOK MENON** True copy **JUDGE** P.A. To Judge.