BABY @ SEBASTIAN vs. CIRCLE INSPECTOR OF POLICE ADIMALY

1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 952 OF 2010 BABY @ SEBASTIAN & ANR. ………APPELLANTS Vs. CIRCLE INSPECTOR OF POLICE, ADIMALY ……RESPONDENT J U D G M E N T V.GOPALA GOWDA, J. 1. 1. This criminal appeal is directed against the JUDGMENT impugned judgment and order dated 09.06.2009 in Crl. Appeal No. 1898 of 2005 passed by the High Court of Kerala at Ernakulam whereby it has allowed the said criminal appeal filed by the respondent herein, by setting aside the order of acquittal passed by the Court of the Addl. Sessions Judge, Thodupuzha, in Sessions Case No.461 of 2001. The Page 1 2 High Court convicted both the appellants for the offence punishable under Section 302 read with

imprisonment for life with a fine of Rs.25,000/- each. In default of payment of fine they shall suffer rigorous imprisonment for two years each. 2. Brief facts of the case are stated hereunder to 2. appreciate the rival legal contentions urged on behalf of the parties: The case of the prosecution is that one young man named Jojo (since deceased), an auto rickshaw driver by profession, was in romantic relationship JUDGMENT with a minor girl named Smitha (PW-2) daughter of the appellant no.1. The relationship between the two was vehemently opposed by the girl’s family. The appellant no.1 completely ruled out the possibility of marriage between the two and allegedly extended threats to Jojo. After having found the strong opposition from the girl’s family with regard to their marriage, Jojo and Smitha Page 2 3 (PW-2) planned to elope on 19.07.2000 at about 11 pm. Accordingly, both started at about 11.45 pm

they followed and intercepted Jojo and Smitha (PW-2). 3. Thereafter, allegedly the appellant no.1 caught 3. hold of the neck of Jojo and pushed him down into the paddy field which was filled with mud and water. He sat on his body and the appellant no.2 caught hold of his neck from back side and immersed his face in the muddy water again and again, thereby strangulated and killed him. Manoj (PW-1) JUDGMENT residing a little away from the scene of occurrence informed the matter to one Ravi. Ravi, Secretary of the local Gram Panchayat in turn informed the matter to Idukki police Station, Rajakkad. 4. 4. Soon after, the Sub-Inspector (PW-31) reached the place of occurrence and recorded the statement of PW-1. Thereafter, FIR No. 102 of 2000 was registered against three persons viz., appellant Page 3 4 nos.1, 2 and one Thressiamma for offence punishable under Section 302 read with Section 34 of IPC.

trial court commenced the trial against both the appellants. During trial, the prosecution examined 32 witnesses to prove beyond reasonable doubt the guilt of both the appellants on the charges. The Trial Court after proper appreciation of evidence on record by its judgment and order dated 13.11.2003 acquitted both the appellants of all the charges levelled against them holding that the prosecution case against the appellants/accused JUDGMENT persons is not free from reasonable doubt. 6. 6. Aggrieved by the decision of the Trial Court the respondent-State approached the High Court of Kerala at Ernakulam by filing Criminal Appeal No. 1898 of 2005. The High Court by its judgment and order dated 09.06.2009 allowed the criminal appeal by setting aside the acquittal order passed by the Page 4 5 Trial Court. The High Court has convicted both the appellants under Section 302 read with Section 34

this appeal. 7. 7. Mr. M. Karpaga Vinayagam, the learned senior counsel on behalf of both the appellants contended that the High Court has erred in convicting both the appellants without adhering to the well settled proposition of law regarding appeal against acquittal that the order of acquittal shall not be generally interfered with by the appellate court in exercise of its jurisdiction because of the JUDGMENT presumption of innocence of the accused who were acquitted by the Trial Court by recording cogent and valid reasons on proper appreciation of evidence on record. It was further submitted by him that the above said legal principle has to be followed by the appellate court considering the appeal against the judgment of acquittal, the same can be interfered with only when there are Page 5 6 compelling and substantial reasons namely, the findings and reasons recorded on the charge are

case. In the present case, the Trial Court after appreciating the evidence on record has rightly acquitted both the appellants from the charges. There exists no legal infirmity in the judgment passed by the Trial Court. However, the High Court has proceeded on surmises and conjectures and reversed the order of acquittal without examining the correctness of the findings and reasons recorded by the Trial Court on proper appreciation JUDGMENT of evidence on record. Therefore, he submitted that the impugned judgment and order passed by the High Court is unsustainable in law and deserves to be set aside in the interest of justice by this Court in exercise of its appellate jurisdiction. 8. 8. It was further contended by the learned senior counsel that the High Court has grossly erred in convicting both the appellants on the assumption Page 6 7 that the presence of the appellants at the scene of occurrence as stated by PW-6 has not been disowned

incident. In fact in his statement recorded under Section 164 of CrPC before the court he has denied having said to the police that he saw the appellants or any other person at the place of occurrence. The prosecution has not been able to discredit the version of this witness and his testimony stands uncontroverted. In such circumstances the High Court has erred in holding that the testimony of PW-1 should be disbelieved as JUDGMENT he was trying to help the appellants. 9. 9. The learned senior counsel further contended that the High Court has failed to appreciate the fact that the testimony of PW-6 is full of contradictions. It was submitted that the Trial Court has rightly taken note of the fact that PW-6 after witnessing the incident did not inform the Page 7 8 same to anybody neither to the police nor his family members rather the next morning he reached

witnessed the incident, he ventured and told the police. The conduct of this witness in not disclosing the fact that he has witnessed the incident to anybody either immediately or within reasonable time from the time of occurrence of crime casts serious suspicion on his veracity and reliability of his evidence. In this regard the learned senior counsel placed reliance upon the decision of this Court in the case of Chanan Singh JUDGMENT 1 v. State of Haryana . 10. 10. It was further submitted by the learned senior counsel that the High Court has erred by placing reliance on the testimony of PW-6 without appreciating the testimony of PW-5 which further casts a shadow of doubt upon the evidence of PW-6 whose evidence is accepted by the appellate court 1 (1971) 3 SCC 466 Page 8 9 for reversing the order of acquittal of both the appellants passed by the Trial Court.

the suspicious circumstances surrounding the case of the prosecution. As per the statement of the father of the deceased (PW-13), he left his house with two bags, a gold chain and Rs. 25,000/- with him. It is the case of the prosecution that all the said things went missing and nothing has been recovered. The possibility of involvement of some third person committing the crime for money and valuables cannot be ruled out. Therefore, the JUDGMENT appellant court should have given benefit of doubt to both the appellants in the absence of any concrete and cogent evidence to prove their involvement in the crime. 12. 12. It was further submitted by the learned senior counsel that the High Court has not noted the contradictions between the statements of PWs-13 and 16 as to the threat alleged to have been issued by Page 9 10 the appellants and their family to the deceased. The High Court should have appreciated the fact

upon by the High Court in the absence of corroboration by other evidence on record. In fact, PW-16, who is an impartial witness has contradicted the statement of PW-13 by stating on oath that no such threats were ever issued by the appellants or any of their family members. 13. 13. The learned senior counsel further contended that the Trial Court has rightly taken note of the facts narrated by PW-17 that he had left the locality JUDGMENT along with his family after the occurrence and shifting his residence to a place 80 kms away. It was further submitted by him that the aforesaid strange behaviour on the part of PW-17 has to be read with in conjunction with the fact that two bags carried by the deceased along with a gold chain and Rs. 25,000/- have gone missing and has not been recovered as stated by the police. PW-17 Page 10 11 did not report the occurrence to anyone and absconded from the place of incident. His statement

considered by the High Court with seriousness and carefully before accepting his evidence. The evidence of PW-17 is completely unreliable to record the finding of the guilt of both the appellants. 14. 14. It was further contended by the learned senior counsel that in the present case, PWs 1,2,3,4,5,7,8,9,10,11,12,18,29,20,21 and 23 did not support the prosecution case and they were declared JUDGMENT as hostile witnesses. Therefore, it was highly inappropriate on the part of the High Court to convict both the appellants on the basis of statements given by such aforesaid witnesses to the police under Section 161 of CrPC alone in the absence of any other corroborative evidence placed on record by the prosecution. In this regard Page 11 12 reliance is placed upon the decision of this Court 2 in Ramswaroop v. State of Rajasthan and Rajendra

counsel assailed the fact of the presence of injuries on the person of PW-2 and appellant No.2 upon which reliance is placed by the High Court in reversing the finding of acquittal and convicting both the appellants in the manner that the nature of the wound on the person of PW-2 was incised wound caused by the sharp object and it is the specific case of PW-2 that she sustained injuries while she was cutting grass. This statement of the JUDGMENT above witness has not been demolished by the prosecution. Moreover, there is no recovery of such sharp edged weapon from the place of occurrence or from the house of the appellants. It is not even the case of the prosecution that similar injuries were found on the person of the deceased. As regards the injuries sustained to appellant no.2, 2 (2004) 13 SCC 134 3 (2007) 7 SCC 378 Page 12 13 the Court has not even gone into the nature of injuries on his person. He further submitted that

could have been caused in the course of fight between the deceased and the accused persons. 16. The learned senior counsel further contended that 16. the High Court should have re-appreciated the case of prosecution that the Christmas cards and other letters alleged to have been written by PW-2 to Jojo have not been proved to have been sent by PW-2 as the same were never sent to handwriting expert for examination to prove the fact that it was in JUDGMENT the handwriting of PW-2. In this regard he further submitted that in the absence of any evidence to show that the alleged letters and cards were sent by PW-2 to the deceased-Jojo, the High Court has erred in relying on the same to hold that both PW-2 and the deceased were in a romantic relationship and terming the same as the reason for the incident involving both the appellants. Page 13 14 17. 17. While concluding his contentions the learned senior counsel submitted that in convicting both the

presumed to be innocent until proved otherwise and the standard of proof in criminal law is ‘proof beyond reasonable doubt’, in the guise of protecting the credibility of the judicial system. It has based its reasoning only to ensure that the people in whom the investigating agencies has reposed faith should not be allowed to turn back at the crucial moment. The High Court has relied upon those evidences which are completely unreliable. JUDGMENT Therefore, the impugned judgment and order deserves to be set aside in the interest of justice by this Court in exercise of its appellate jurisdiction. 18. 18. Per Contra, Ms. Liz Mathew, the learned counsel on behalf of the respondent sought to justify the impugned judgment and order passed by the High Court on the ground that the same is well founded Page 14 15 and is not vitiated in law. It was submitted by her that no interference of this Court is required

rightly appreciated the evidence of PW-6 in proper perspective by holding that PW-6 took time to disclose the incident to police for the reason that he was a stranger to the locality. The observation of the High Court is only an enunciation of normal behaviour of any reasonable person which does not require any other evidence. 20. 20. With regard to the identification of the appellants by PW-6, it was submitted by the learned counsel JUDGMENT that dock identification is substantive evidence. This witness has clearly identified the appellants as perpetrators of the crime. It was further contended that since this is not a case where the witness could only have a fleeting glance of the accused persons, the absence of a test identification parade does not shake the Page 15 16 prosecution case in any manner. It was further submitted by the learned counsel that apart from

contradictions have been brought from this witness to shake the prosecution case despite having been cross-examined by the defence counsel at length. The learned counsel further submitted that when the incident is taking place in a public place, persons passing by are the best witnesses and therefore, their evidence could not be discarded. In this regard the learned counsel has placed reliance upon the decision of this Court in Raju v . State of JUDGMENT 4 Maharashtra , para 6 of which reads thus:

4 (1998) 1 SCC 169 Page 16 17

from the place of occurrence has been duly JUDGMENT explained by him in his evidence. Being a tenant in the premises belonging to the appellants, he moved out of fear as the appellants had threatened to kill him. He appeared before the police soon after the arrest of the appellants and narrated the incident. 22. It was further contended by the learned counsel 22. that the non-recovery of the baggage, gold chain Page 17 18 and Rs. 25,000/- which the deceased was carrying can at best be stated to be a defect in the

missing articles. 23. 23. The learned counsel further contended that the appellants were named in all contemporaneous documents prepared after the occurrence, especially the FIR which was lodged soon after the occurrence. It is settled principle of law that prompt lodging of FIR precludes the possibility of deliberation to falsely implicate any person. A prompt FIR in a criminal case and particularly in a murder case is JUDGMENT a vital and valuable piece of evidence. The learned counsel has placed reliance upon the decision of this Court in Meharaj Singh v . State of Uttar 5 Pradesh . 24. While concluding her contentions the learned 24. counsel submitted that the statement of PW-6 is duly corroborated by statement of PW-17 and 5 (1994) 5 SCC 188 Page 18 19 admissible portions of testimonies of other witnesses and medical evidence in this regard.

Section 34 of IPC. JUDGMENT 26. 26. This Court in the case of Bindeshwari Prasad Singh alias B.P. Singh and Ors. v. State of 6 Bihar and Anr . has held that in the absence of manifest illegality and perversity in the trial court’s findings and reasons resulting in grave miscarriage of justice, the High Court is not justified in interfering with the trial court’s 6 (2002) 6 SCC 650 Page 19 20 order in exercise of revisional jurisdiction. The relevant para 13 reads thus:

7 (2010) 13 SCC 657 Page 20 21

Page 21 22 reasons for such interference.” (emphasis supplied by this Court)

29. 29. A careful reading of the evidence on record clearly 8 (2011) 11 SCC 140 Page 22 23 highlights the material contradictions and discrepancies in the prosecution evidence

placed by the High Court in convicting both the appellants by setting aside the acquittal order passed by the Trial Court. From the testimony of PW-6 one thing is clear that he is a chance witness who happened to have witnessed the incident by chance. It is a well settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness but his presence at the place of occurrence must be JUDGMENT satisfactorily explained by the prosecution so as to make his testimony free from doubt and thus, reliable . This Court in the case of Jarnail Singh 9 v. State of Punjab has elaborately explained the reliability of a chance witness as under: “21. In Sachchey Lal Tiwari v. State of U.P. this Court while considering the evidentiary value of the chance witness 9 (2009) 9 SCC 719 Page 23 24

30. However, in the instant case, the presence of PW-6, 30. Page 24 25 a chance witness, at the place of occurrence is not free from doubt. PW-6 in his testimony has stated

the occurrence. He has accounted for his presence at the place of occurrence by stating thus: “PW-5 Thomas asked me a loan of Rs. 500/-. He requested for money 5/6 days back. I had agreed to pay him the money, as soon as I get it from the contractor. Had not stated, when would I get the money. After asking me for a loan, he reminded me about it twice. Had told Thomas that we would meet at Rajakkad. I went to Rajakkad, reaching there at 6.00 am along with PW-5 I went to the contractor K.S’s office. The contractor is K.S. Kunju Mohammed. Had met PW-5 Thomas that day. That was at Rajakkad. We sat at the room of K.S. for an hour. We spent there from 6.00pm to 7.00pm. Since we could not meet K.S we went to the cinema at the nearby theatre. After the show was over, we again went to the room of K.S. K.S could not be met. We took food from fast food (thattukada) shop. After that when we were going home, we witnessed incident.” JUDGMENT However, PW-5 has not supported this version of PW-6. PW-5 in his testimony has stated that he did not witness anything. Further, the deposition of Page 25 26 PW-6 is full of contradictions. On the one hand he says:

On the other hand, while deposing he says: “...I had no personal knowledge when I left as to who attacked whom.” 31. 31. Further, the conduct of PW-6 in not disclosing the incident either to police or to anyone in the village creates a suspicion and renders his version of the incident is doubtful. PW-6 according to his JUDGMENT testimony left the place of occurrence quietly and did not inform about the incident to anyone. The relevant portion from his testimony reads thus: “...I did not tell anybody at anybody at the house what all I saw then. I did not make any noise (cry out); nor did I attempt to save the drowning person. Before telling the police, I had not spoken about the event to anybody else. That was on the next day at the scene of occurrence... xx xx xx Page 26 27

From the aforesaid evidence, it is clear that PW-6 has acted in an unnatural manner. In this backdrop this Court is of the opinion that the learned senior counsel for both the appellants has rightly pointed out that this unusual behaviour on the part of PW-6 in not telling anyone about the incident of murder which he allegedly witnessed certainly casts JUDGMENT a serious doubt upon his testimony. Therefore, the Trial Court has rightly rejected the evidence of PW-6 stating that the same is highly unreliable as it has failed to inspire confidence with regard to the presence of PW-6 at the place of occurrence at the time of incident. Hence, the Trial Court has rightly held thus: Page 27 28

32. 32. As far as evidence of PW-17 is concerned, it is clear from the material placed on record that he is not an eye-witness to the incident. The Trial Court has rightly dealt with the evidence of PW-17 as under: “7. PW 17 is the other witness who has given incriminating evidence against the accused. According to him he had resided at the vicinity of the place of occurrence at the relevant period. On the date of occurrence namely on 19.7.00 at about 10 pm the deceased came to his house with two bags. The deceased told him that he was going to live together with his lover Smitha (PW2). At about 11 pm he went away with the two bags. After sometime the deceased and PW2 Smitha came there. Then he and his wife were standing near the way near their house as directed by the deceased. The deceased and PW2 bid farewell and went away and PW 17 and wife JUDGMENT Page 28 29

8. The above is the circumstantial evidence furnished by PW 17 Eldhose against the accused. Of course the statements attributed by him to Thressiamma and Smitha cannot be covered by any section of the Evidence Act/concerned with the relevancy of facts and so the said statements cannot be considered legal evidence. PW 17 was very vehemently cross examined on behalf of the accused. He admitted that immediately after the occurrence he himself and family left the place and shifted his residence to a place named Thalakode which is 80 kms away from the place of occurrence. He admitted that for the next 5 days of the occurrence himself and his wife were not present in the house. Immediately after that they shifted resident to the place 80 JUDGMENT Page 29 30

JUDGMENT Page 30 31

with the approximate time of incident in no way carves out an active role on the part of both the appellants in commission of murder of Jojo. 34. 34. The material evidence on record does not reveal anything which incriminates both the appellants. Further, the depositions of parents of the deceased i.e., PW-13 and PW-14 in no way implicate both the appellants as the offenders. Rest of the prosecution witnesses have turned hostile and have JUDGMENT not supported the prosecution story on material facts to show that both the appellants are involved in the crime as alleged against them. 35. 35. In the instant case, the prosecution has failed to prove the guilt of both the appellants beyond reasonable doubt. Though the prosecution witnesses Nos. 1,2,3,4,5,7,8,9,10,11,12,18,29,20,21 and 23 Page 31 32 have turned hostile, their alleged statements made to the police under Section 161 of CrPC were not

anything about the alleged statements of the above hostile witnesses recorded under Section 161 as held by this Court in three Judge Bench in the case 10 of V.K. Mishra v. State of Uttarakhand . Thus, placing reliance upon their statements under Section 161 by the High Court to record the finding of conviction is erroneous in law. The High Court has failed to appreciate the same in arriving at different conclusion other than the Trial Court JUDGMENT in exercise of its appellate jurisdiction. Therefore, the impugned judgment and order passed by the High Court must be set aside by this Court in exercise of its appellate jurisdiction. 36. 36. For the reasons stated supra, this criminal appeal is allowed. The impugned judgment and order dated 10 (2015) 9 SCC 588 (paras 16-19) Page 32 33 09.06.2009 passed by the High Court of Kerala at Ernakulam in Criminal appeal No. 1898 of 2005 is

accused-appellants are acquitted of all the charges levelled against them. Since both the appellants are in jail, the jail authorities are directed to release them forthwith if they are not required in connection with any other case. …………………………………………………………J. [V. GOPALA GOWDA] …………………………………………………………J. [R.K. AGRAWAL] JUDGMENT New Delhi, th 26 July, 2016 Page 33 34 ITEM NO.1A-For Judgment COURT NO.8 SECTION IIB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

VERSUS CIRCLE INSPECTOR OF POLICE ADIMALY Respondent(s) Date : 26/07/2016 This appeal was called on for pronouncement of JUDGMENT today. For Appellant(s) Mr. M. Karpaga Vinayagam, Sr. Adv. Mrs. V.S. Lakshmi, Adv. Mr. A. Venayagam Balan,Adv. For Respondent(s) Mr. C.K. Sasi, Adv. Ms. Liz Mathew,Adv. Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice R.K. Agrawal. The appeal is allowed in terms of the signed JUDGMENT Non-Reportable judgment. Both the accused-appellants are acquitted of all the charges levelled against them. Since both the appellants are in jail, the jail authorities are directed to release them forthwith if they are not required in connection with any other case. (VINOD KR.JHA) (SUMAN JAIN) COURT MASTER COURT MASTER (Signed Non-Reportable judgment is placed on the file) Page 34