Full Judgment Text
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CASE NO.:
Appeal (crl.) 230 of 2002
PETITIONER:
Joseph alias Jose
RESPONDENT:
State of Kerala
DATE OF JUDGMENT: 22/04/2003
BENCH:
N. SANTOSH HEGDE & B.P. SINGH.
JUDGMENT:
J U D G M E N T
B.P. Singh, J.
The appellant herein was put up for trial before the
Additional Sessions Judge, Kottayam Division in Sessions Case
No.68 of 1994 charged of an offence punishable under Section 302
I.P.C. for having committed the murder of the deceased Joseph @
Ouseppachen at about 8.15 p.m. on 25th March, 1994. The Trial
Court accepting the evidence produced by the prosecution found
the appellant guilty of culpable homicide. In the facts and
circumstances of this case it held that though the deceased died as
a result of the injuries sustained by him, it could not held that the
appellant stabbed him with the intention of killing him. He,
therefore, convicted the appellant for the offence punishable under
Section 304 I.P.C. Part I and sentenced him to 8 years rigorous
imprisonment. The appellant preferred an appeal before the High
Court of Kerala at Ernakulam being Criminal Appeal No.93 of
1996 A. The High Court by its impugned judgment and order of
20th July, 2001 dismissed the appeal. The appellant has appealed
to this Court by Special Leave.
PW-1, the brother of the deceased lodged the F.I.R. which
was recorded by Sub- Inspector, PW-10 on 25th March, 1994. PW-
1 is not an eye witness but he was told about the incident by PW-2
who according to the prosecution had accompanied the deceased
when the occurrence took place. PW-1 went to the place of
occurrence and found the deceased lying in an injured condition.
He arranged for his removal to the hospital, but on reaching the
hospital the deceased was declared dead. Thereafter he went to the
police station and lodged the report in the night of 25th March,
1994.
The prosecution examined before the Trial Court three
alleged eye witnesses namely PWs - 2, 3 and 4. PWs 2 and 4 did
not support the case of the prosecution. PW-3, however, deposed
as an eye witness and fully supported the case of the prosecution.
The conviction of the appellant is solely based upon the testimony
of PW-3 which finds corroboration from the medical evidence on
record.
PW-1 is not an eye witness. It is not necessary to discuss his
evidence in detail. Suffice it to say that he lodged the F.I.R. but
he did not mention therein the name of PW-3 as an eye witness.
In the F.I.R. reference was made to the effect that PW-2 had
accompanied the deceased on the fateful night when the
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occurrence took place. PW-4 who is no other than the wife of the
accused did not support the prosecution case about having seen the
occurrence.
Counsel for the appellant submitted before us that the
conviction of the appellant which is based solely upon the
testimony of PW-3 is not justified when the circumstances of the
case establish that he had not witnessed the occurrence and had
falsely deposed in favour of the prosecution.
PW-2, Varghese @ Thankachan deposed that the deceased
was his mother’s brother, namely his maternal uncle. He also
knew the accused who lived in the same locality. However, he had
not seen the occurrence leading to the death of deceased. The
witness was declared hostile and was cross-examined at length. In
his cross-examination, he stated that on 25th March, 1994 at about
7.30 p.m. he and the deceased went to a liquor shop where the
deceased consumed arrack. They were in liquor shop for about 10
minutes and thereafter they came out of the shop. The deceased
invited him to his house for a meal. Both of them proceeded
towards the house of the deceased. At that time the deceased had a
burning candle with him. For going to the house of the deceased
one has to pass in front of the house of the accused. While they
were going to the house of the deceased, the deceased told him that
he had to talk to the accused and the deceased thereafter went to
the front-yard of the house of the accused while PW-2 proceeded
ahead. When he had gone about 20 feet ahead he heard a scream
coming from the direction of the house of the accused. He
immediately ran towards the house of the deceased and informed
the family members about the incident. Thereafter with 3-4
persons he went to the place of occurrence and found that the
deceased was lying on the western side of the house of PW-3 with
stab injuries. The deceased had a knife in his hand. He did not see
PW-3 there, nor did the neighbours gather. The deceased was
removed to the hospital where he was declared dead. He denied
having made the statement Ex.P-2 before the police. He admitted
that he went to the house of PW-1, brother of the deceased and
informed him about the occurrence. According to this witness at
about 12 mid night he went with PW-1 to the police station where
the F.I.R. was lodged. He had also accompanied PW-1 to the
hospital. According to this witness at the time of occurrence there
was no light. He had however seen two persons running away
from the house of the accused. He did not know those two
persons. The arrack bottle was in the hand of the deceased when
he was lying injured. The deceased was fully drunk on that day.
It would thus appear from the evidence of PW-2, who was
declared hostile, that he had not actually witnessed the commission
of offence by the accused.
PW- 3, Shekharan claimed to have witnessed the
occurrence. According to this witness on 25th March, 1994 after
closing his shop he boarded a bus to come home. After alighting
from the bus he started walking towards his house. His house is on
the eastern side of the house of the accused intervened by a
pathway. He deposed that he found the deceased and PW-2
walking ahead of him at a distance of about 20 feet. He also
noticed that the deceased was having a burning candle in his hand
and was using a coconut shell as a cover for the burning candle.
When they reached near the house of the accused he saw the
accused standing in the front yard of his house with a torch. The
accused said something to the deceased and thereafter an
altercation followed. Thereafter the accused stabbed the deceased
with a knife. According to him both of them were drunk and they
both fell down. The accused again stabbed the deceased and then
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went inside his house. The deceased ran through the courtyard of
his house and after going eastwards fell near his house. He went to
the deceased and found that the knife with which he had been
stabbed was stuck in his body. PW-2 came there and removed the
knife and put it down there. Thereafter PW-2 went running to
inform the brother of the deceased about the occurrence and the
witness went inside his house and closed the door. The deceased
was taken in a jeep to the hospital later.
At the time of occurrence a kerosene oil lamp was burning
in the house of the witness and there was also light from candle in
the house of the accused. There was no supply of electricity at the
time of occurrence. The supply of electricity was restored only at
about 10-10.30 p.m.. According to this witness the occurrence
took place between 7 and 8.30 p.m. The witness identified the
coconut shell, the candle and the knife which were recovered from
the place of occurrence.
This witness denied the suggestion that he wanted to buy the
house, which was ultimately bought by the accused and therefore
he was not on good terms with the accused. He admitted having
told the police that the accused was a short tempered person and
used to carry a knife and used to stab persons whenever he lost his
temper. He further stated that while walking to his house he had
heard the accused and deceased talking something but he could not
clearly understand what they were talking about. He did not know
on what subject they picked up a quarrel but he had told the police
that the deceased had gone near the accused and told him that he
should not have done that to him. While talking tempers rose high
and they became violent. He had seen 2-3 persons coming to the
place where the accused fell down. He had also seen the knife
cover falling when the accused removed the knife from its cover.
This witness made a significant statement that he had told Baby,
another brother of the deceased (not examined) that he had seen
the occurrence. He had also seen PW-1 on that night and PW-1
also heard what he told Baby. The witness stated that the coconut
shell shown to him did not have traces of either carbon or wax. He
was questioned by the police between 3.30 4.00 p.m. on the next
day. At the time of occurrence there was usual light.
The investing officer Abrham Mathew, Circle Inspector was
examined as PW-13. Though the occurrence took place on 25th
March, 1994, he took charge of the investigation of this case on
26th March, 1994. He went to the hospital and prepared the Inquest
Report of the dead body of the deceased. He had also seized the
clothes worn by the deceased. He then went to the place of
occurrence and prepared mahazar Ext. P-6. He collected blood
stained earth, a candle, a coconut shell, a blood stained towel, a
knife cover and a pair of chappals from the scene of occurrence.
He also recorded the statement of witnesses and got prepared a
sketch plan of the place of occurrence. He arrested the accused on
5th April, 1994. According to this witness the accused was arrested
much later as the witnesses had not stated the correct address of the
accused. He admitted that there was neither any blood stain nor
wax deposit on MO.1, the coconut shell recovered from the place
of occurrence. Though PW-3 stated that he had carried a torch
with him that torch was not recovered. The witnesses had deposed
that there was lantern burning in the house of PW-3 and that was
also not taken into custody. When PW-3 was questioned he did
not say that there was light at the time of occurrence.
Dr. S. Gopalakrishnan, Assistant Professor in Forensic
Medicine who conducted the post mortem examination was
examined as PW-9. His evidence establishes the fact that the
deceased had four incised wounds, one on the chest two on the
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abdomen and one on the left fore finger. Apart from these wounds
he had suffered five abrasion and one superficial cut on the inner
aspect of right fore arm. The stomach was full with rice particles
in a semi fluid medium and smell of alcohol was present. The
bladder was full with clear urine. In his opinion, injury nos. 1 and
2 could be caused with a weapon like MO.3, the knife shown to
him. The cause of the death was the stab injury on the chest.
According to him a person suffering injuries like injuries 1 to 3
may fall down and the death could be very rapid. The medical
evidence clearly establishes that the death of the deceased was
homicidal.
It was submitted on behalf of the appellant that the sole
testimony of PW-3 was not of such quality as could be implicitly
relied upon. The evidence on record discloses that there was
hardly sufficient light at the time of occurrence which could enable
him to identify the assailant even if he had seen the occurrence.
However, his submission was that PW-3 had not witnessed the
occurrence at all and he became an eye witness on the next day
when the prosecution failed to find any clue to the murder that had
taken place earlier. According to learned counsel for the appellant
the conviction of the appellant cannot be based on the evidence of
such solitary witness whose very presence at the time of
occurrence was doubtful.
On the other hand counsel for the State submitted that PW-3
being a neighbour whose house was situated just opposite to the
house of the accused, intervened by a narrow path way, his
presence at the time of occurrence was natural. Moreover, there
was sufficient light provided by the candle carried by the deceased
himself as also candle light in the house of the accused and the
lamp burning in the house of the witness, PW-3. It was, therefore,
submitted that PW-3 even though a solitary witness of the offence
was fully reliable and his evidence provided sufficient basis for the
conviction of the appellant.
It is not clear from the record as to when exactly the
occurrence took place. The case of the prosecution is that the
occurrence took place between 7 and 8.30 p.m.. However from the
testimony of PW-1 it appears that PW-2 came running to him at
about 8.30 p.m. and informed him about the occurrence. It also
appears from the testimony of PW-2 that he had gone to the arrack
shop at about 7.30 p.m. with the deceased and that they had sat
there for a while. Thereafter while returning the occurrence took
place. The time of occurrence given by PW-3 is rather vague as
according to him the occurrence took place between 7 and 8.30
p.m.. In this state of evidence on record the High Court assessed
that occurrence may have taken place at about 8.15 p.m. as stated
in paragraph 2 of the judgment. It is an admitted position that at
the time of the occurrence the supply of electricity was switched
off and therefore there was no electrical light available. As
admitted by PW-3 the supply of electricity was restored between
10 and 10.30 p.m.. According to the prosecution light was
available since there was a candle burning inside the house of the
accused and a kerosene oil lamp burning in the house of PW-3. In
our view the candle in the house of PW-3 and the kerosene oil
lamp burning in the house of PW-3 could hardly provide enough
light for one to identify the person committing the offence at the
place of occurrence which was outside the house of the accused by
the side of the pathway. It is the case of the prosecution that the
deceased himself was carrying a candle and was covering the
flame with a coconut shell to prevent it from getting extinguished.
The candle and the coconut shell were recovered from in front of
the house of the accused where stabbing had taken place according
to the prosecution. Surprisingly, the coconut shell had no carbon
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deposit or wax deposit or blood stains on it. This apart, a candle
light in the hand of the accused could hardly provide sufficient
light to facilitate identification. Moreover, PW-3 did not claim
even during investigation that there was sufficient light. In his
evidence he stated that there was usual light. Evidence on record
is therefore indicative of the fact that there was no sufficient light
at the time of occurrence to enable the witness to identify the
accused at some distance.
Coming to the evidence of PW-3, he did not claim that while
in his house he had seen the occurrence which took place just
outside the house of the accused, who lived across the narrow path
way. According to this witness he had closed his shop and had
come by bus. After alighting from the bus he was proceeding
toward his house when he saw the deceased and PW-2 walking
ahead of him at a distance of about 20 feet. It is thereafter that he
claims to have witnessed the occurrence in front of the house of the
accused. After the assault the deceased ran towards his house and
fell down on the eastern side of the house. The conduct of PW-3
appears to us to be rather unnatural. He did not disclose what he
had seen to anyone that night, and for the first time on the next day
at about 4.00 p.m. he disclosed the fact of his being an eye witness
to the investigating officer. According to him he went to see the
deceased who had fallen down near his house. When he was there,
PW-2 also came and pulled out the knife from the body of the
deceased and kept it there. Thereafter PW-2 rushed to inform the
brother of the deceased. From his deposition it does not appear
that he talked to PW-2 at all about the occurrence. Moreover, PW-
2 has not stated that he met PW-3 when he had gone to the place
where the deceased had fallen. He does not even state that he had
pulled out the knife from the body of the deceased and kept it near
the body of the deceased. What however appears to be rather
unnatural is the fact that thereafter when several persons came to
the place where the injured was lying, he did not disclose to them
about his having seen the occurrence. It is not disputed that after
sometime PW-2 along with the brother of the deceased PW-1 and
some others had come to the place where the deceased was lying
injured which was just near the house of PW-3. No doubt, PW-3
stated that when the brothers of the deceased had come he had told
one of the brothers, namely Baby, that he had seen the occurrence
and he further asserted that when he told this fact to Baby, PW-1
was also present and he had said this in presence and within the
hearing of PW-1. PW-1 does not say that PW-3 had disclosed the
name of the assailant to him or to any other person. What is of
considerable significance is the fact that in the F.I.R. lodged by
PW-1, the name of PW-3 is not mentioned as an eye witness, nor is
it stated that he had disclosed that he had seen the occurrence. It
therefore appears that this witness did not talk about the occurrence
to anyone after the occurrence, and for the first time on the next
day at about 4.00 p.m. he discloses the fact of his being an eye
witness to the investigating officer. His keeping silent for such a
long period and not disclosing the fact that he was an eye witness
to the brothers of the deceased and others, who had come to the
place where the deceased was lying injured just next to his house,
creates a serious doubt in our mind about this witness being an eye
witness. In normal course he, being an eye witness, would have
disclosed this fact at the earliest opportunity. He could have said
so to PW-2 who was the first to come or at least to the others who
came to the place where the injured was lying which included
PW-1. Rather than disclosing to them that he was an eye witness,
the witness remained inside his house and did not communicate
with anyone. There is, therefore, force in the submission of the
counsel for the respondent that on the next day, finding no clue for
the murder, PW-3 was got up as an eye witness.
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There is one other aspect of the prosecution case for which
we find no good explanation. If really the name of the assailant
was known, there was no reason for his being arrested several days
after the occurrence on 5th April, 1994. It is not disputed that the
accused lived near the house of PW-3, and his house is also very
near to the house of the deceased. His address was known to all
and in fact in the F.I.R. itself his name and address had been
disclosed. Despite this he was arrested 10 days later, and it
appears from the deposition of the investigating officer that this
delay was on account of the fact that the correct address of the
appellant was not disclosed by the witnesses. This explanation is
hardly convincing. Counsel for the appellant submitted that in fact
even the statement of PW-3 may have been recorded much later
but was shown to have been recorded on 26th March, 1994. That is
why appellant was arrested many days after the occurrence. It is
not for us to speculate on this aspect of the matter, particularly
when at that stage even PW-2 clamed to be an eye witness, though
he turned hostile at the trial.
For the reasons discussed above, we have serious doubt
about PW-3 having actually witnessed the occurrence. There was
hardly sufficient light to identify the assailant at the time of
occurrence. The conduct of the sole eye witness PW-3 in
remaining silent for a long time, and his failure to disclose the facts
to the persons who had gathered near the place where the deceased
lay injured, creates a serious doubt about the truthfulness of this
witness.
We, therefore, find it unsafe to sustain the conviction of the
appellant on the sole testimony of PW-3. Giving to the appellant
the benefit of doubt, we allow this appeal and set aside the
conviction and sentence of the appellant and direct that he shall be
released forthwith unless required in connection with any other
case.