It is trite that an F.I.R. is not substantive evidence (unless of course it is admitted under Section 32(1) of the Evidence Act) and can be used to corroborate or contradict the maker thereof; and therefore, the question of corroborating P.W.1 by his purported statements, as contained in Ext. P.1 could not arise. Inspite thereof the trial Court observed `.......the first informant statement is further supported by the evidence of P.W.1' and used the statements contained therein (Ext.P.1) as substantive evidence to discredit P.Ws.3 and 4. It must, therefore, be said that the approach of the trial Court in dealing with the F.I.R. was legally impermissible. We are also surprised to find that the trial Court disbelieved P.Ws.3 and 4, relying upon the statements contained in an inquest report, to the extent they relate to what the Investigating Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 Cr.P.C.
Print Page
Supreme Court of India
George & Ors vs State Of Kerala & Anr on 18 March, 1998
George @ Vakkachan, Rajeev and Joshy, the three appellants before us (arrayed as A1 to A3, respectively in the trial Court and hereinafter so referred to) along with four others, (A4 to A7) were put up for trial before an Additional Sessions Judge, Kottayam to answer charges under Section 143, 147, 148, 449, and 302 read with Section 149 I.P.C. The gravamina of the charges were that on May 28, 1990 at or about 11 P.M. they formed themselves into an unlawful assembly with the common object of committing the murder of Sasidharan Nair and in prosecution thereof they trespassed into his house and hacked him to death. The trial ended in acquittal of all of them; and aggrieved thereby the respondent-State of Kerala filed an appeal and Smt. Sarojini Amma (mother of the deceased) filed a revision petition before the High Court. The High Court also issued a suo motu Rule calling upon the seven acquitted person to show cause why their acquittal persons to show cause why their acquittal should not be set aside. All the matters were heard together by the High Court; and by a common judgment it set aside the acquittal of the three appellants and convicted them under Sections 302, real with Section 34, and 449 I.P.C, while affirming the acquittal of others. For the above convictions the High Court sentenced each of them to suffer imprisonment for life and rigorous imprisonment for five years respectively, with a direction that the sentences shall run concurrently. The above judgment of the High Court is under challenge in these appeals preferred by the appellants under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act read with Section 379 Cr.P.C.
(2) Briefly stated, the prosecution case is as under:- (a) The deceased Sasidharan Nair was a petty trader and lived in Pulickel of Pallikkathodu Police Station. He was also a reporter for `Thaniniram' daily published from Kottayam. On May 19, 1990 a new item appeared in the daily [Ext. P. 31 (a)] in which serious imputations were made against high placed police officers of Kottayam district and one Thadivakkan was a pimp and gunda and had great influence over corrupt police officers to whom he supplied women and wine and under cover of their protection carried on his immoral activities unabashedly in Palai town. Thadivakkan, who was none other than A1, was upset and enraged by the above defamatory publication. He, therefore, along with the other six accused person went to the house of the deceased armed with deadly weapons to kill him on the fateful night. The three appellants entered into the room where the deceased was sleeping with his wife (P.W.2) and child and started assaulting him. While A2 and A3 dealt blows upon him with stick and iron rod, A1 stabbed him with a knife. On that very night while on the way to the Medical College Hospital, Kottayam, he succumbed to his injuries. (b) P.W.1. (Ninan Varghese), a neighbour of the deceased, who had rushed to the scene of offence on hearing the commotion, was told by the deceased that Urulikunnam Vakkachan had stabbed him with knife. Next morning he went to Pallikkathodu Police Station and gave a report of the incident (Ext. P.1) which was recorded by P.W. 30 (Thomas), a Sub-Inspector of police; and thereupon a case was registered against A1 and three unidentified persons. P.W.54 (M. Samuel), Deputy Superintendent of Police, took up investigation and went to the Medical College Hospital where the dead body of Sasi was lying. After holding inquest he sent the dead body to the Forensic Science Department for post-mortem examination which was conducted by P.W.51 (Dr. Velayudhan).
(c) P.W.54 then went to the house of the deceased and seized among other articles, a knife (M.O.1), a blood smeared cross beam of bed stead (M.O.2), a show, a blood stained lungi and some scalp hairs. He continued with the investigation till May 31, 1990 and then entrusted it to P.W.52 (Abraham Mathew), Circle Inspector of Pampadi, who seized a car bearing registration No. KEK 3114 in which the accused had gone to commit the murder. Investigation was again taken over by P.W.54 and he arrested A2 and A3. At the instance of A2 a stick (M.O.3) was seized from a bamboo cluster on the side of the Pallikkathodu-Chengalam Road. Later on he arrested A1 on June 7, 1990. On completion of investigation P.W. 54 submitted charge sheet against the accused persons.
3. The appellants pleaded not guilty to the charges levelled against them and contended that they had been falsely implicated at the instance of the police. A1, on being examined under Section 313 Cr. P.C., stated that P.W.50 (Sreekumar), the driver of car No. KEK 3114, had made a false statement before the Magistrate (recorded under Section 164 Cr. P.C.) due to threst by the police. According to him prior to the examination of P.W.50 in Court his brother was caught by the police at Thiruvalla with some ganja in his car and to get his brother exonerated from that case he gave false evidence at the instance of P.W.54.
4. In support of its case the prosecution examined 54 witnessesand the appellants none. However, the appellants exhibited some documents in support of their defence.
5. To give an ocular version of the incident the prosecution sought to rely upon the evidence of P.Ws2 and 3, the wife and mother of the deceased respectively, both of whom had during investigation claimed to have witnessed the entire incident. P.W.2, however, did not support the prosecution case and was declared hostile. She testified that she woke up from sleep on hearing noise and saw some persons going away from their room after attacking her husband. In the next breath she stated that she did not see the incident nor could she identify the intruders as there was no light either in her room or in the neighbouring room where her mother-in-law was sleeping.
6. P.W.3 (Sarojini Amma), however, fully supported the case of the prosecution. P.W.3 stated that the deceased was her only son with whom she and her husband were staying at the elevant time. On that fateful day her son came home around 9 P.M., had his food and went to sleep. She remained awake, keeping a lamp burning in her room as was her wont. Some time later she heard of people running. She then heard the screams of P.W.2 and Sasi. She rushed towards his room with the lamp, and raising the curtain in between their room saw three persons standing inside, one standing at the doorstep and behind him two others who were flashing torches. Of the three who were inside, two were seen beating her son on his head with stick and Iron rod. She cried out and implored them not to kill him; and when he tried to get up one of the assailants stabbed him with a knife on his right shoulder. Again he tried to stab, but her son warded off the blow with his hand. Thereafter the assailants escaped through the northern door. She heard P.W.2 to ask her husband about the intruders and he named Urulikunnan Vakkachan. She and P.W.2 then cried aloud to alert the neighbours. Immediately, P.W.1 (Ninan), P.W.4 (Radhamoni), P.W.6 (Joseph @ Ouseph), P.W.7 (Aravindakshan), P.W.8 (Moni), P.W.9 (James) and P.W.10 (Ayyappan) and others rushed to the house. P.W.1 was heard to ask her son whether he could identify the assailants. Again she heard him saying that he was stabbed by Urulikunnan Vakkachan. Around 1.00 A.M. he was taken to the Medical College Hospital in a vehicle and in the early morning she heard that he died. She identified A1 as the person who had stabbed her son and A2 and A3 as those who assaulted him with stick and iron rod. She could not identify those outside the room, but said that there was sufficient light in the room, shed by the lamp she held and by the torches the intruders had, to identify the persons who hit and stabbed her son.
7. P.W.1, who, amongst the neighbours, came to the house of the deceased first on hearing the cries, stated that he saw Sasi lying in a pool of blood. He, however, did not support the version of P.W.3 that Sasi named one of the assailants. On the contrary, he stated that he asked Sasi as to what happened but he did not say anything. As regards lodging of the F.I.R (Ext.P.1) his version was that he had gone to the police station on the following morning and given an information about the incident but the Sub Inspector (P.W.30) did not record it. According to him, he left the police station after half an hour. He, however stated that in the afternoon he again went to the police station on being summoned by P.W.30 and made to sign on a paper but he did not know what was written therein. At that state of his deposition he was declared hostile and cross- examined with reference to the F.I.R. he lodged, wherein he had stated, inter alia, that Sasi told him that Irumbikkunnam Vakkachan stabbed him with a knife and that he (Sasi) should be taken at once to hospital.
8. P.W.4, another neighbour, however, supported the prosecution case. She stated that on hearing the screams and cries from the house of Sasi she rushed there along with her husband (P.W.7). Reaching there she saw Sasi rolling in blood in the western room of his house. Appaichettan (P.W.1) then asked sasi as to what had happened to him. He said that Irumbikunnam Vakkachan stabbed him with knife. According to her, at that time besides Sasi's wife and mother some neighbours were near him. Then Sasi asked for water from his mother and told that he would die and he should be taken to the hospital. She further stated that Sasi's mother and wife told them that 3 persons had entered into the room and assaulted Sasi, and another person had been showing light from the door. She testified that when she reached there, she saw a burning kerosene lamp in the hand of Sasi's mother and that in its light she saw Sasi lying bathed in blood. The other neighbours who were examined, namely, P.Ws.5 to 10 did not support the prosecution case fully and hence some of them were declared hostile.
9. The next witness whom the prosecution much relied upon is P.W.50, the driver of the tourist car KEK 3114 in which, according to the prosecution, the accused persons had gone to commit the murder. He stated in details as to what had happened in the night of May 28, 1990. He said A1 hired the taxi to go to Pallikkathodu and, as arranged, at 7.00 P.M. A5 came and got into it. He drove along the T.B. Road as directed by him and on the way from near the Star Studio, A6 and A7 boarded the car. Then he took it to Seema Lodge, from where A1 got in. The car was taken to Paika side and on the way from near Kurusupally, A4 got into it. The car again was taken to the house of A1, from where A2 and A3 also boarded. Around 8.00 p.m. they reached Pallikkathodu road junction and then went to Kayyoori Junction, where all alighted. A1, A3 and A7 went towards the house of Kayyoori Appachan, but returned soon. They then proceeded to Pallikkathodu and then to Chengalam road. After covering a distance of 2 furlongs he stopped the car and except A6, all of them got out. A1 and another were seen ging along a pathway but returned soon and got into the car, which was later stopped at Sarvathra junction. All except A7 alighted there. A2 and A3 had sticks (M.O.3 and M.O.4) and A4 and A5 had torches. A7 then asked him to drive the car around the place. After sometime he brought back the vehicle to Sarvathra junction. A little later all the six persons who had gone out returned and got into the car. According to him he felt the smell of blood when they came. He then drove off the vehicle to Palal as directed by them. On the way he switched on the light inside the car and saw stains of blood on the shirt and dhothi of A1 and asked him what the matter was about, when he replied that they had gone to thrash a person. He also heard some of them saying that the knife and shoe were lost in the place. Later, he dropped them near their respective places. Before leaving A1 told him to collect the fare from his shop the next day and not to disclose anything to anyone. He, however, contacted P.W.31 (Suresh), his brother the same night and told what had happened. On the following day they met Kunjumon, the owner of the car, and as per his advice he and his brother went to the Pampadi Police Station and disclosed the incident.
10. Next we come to the evidence of P.W.51, the doctor who held the post-mortem examination and found 27 ante-mortem injuries on the person of Sasi. Of those injuries, injury No.1 was a lacerated wound, scalp deep, over the right side of the head. The underneath brain showed diffused subdural and subarachnoid haemorrhage with signs of raised intracranial tension. The doctor opined that the injury was sufficient in the ordinary course of nature to cause death and the deceased died due to it. He further opined that the above injury could be caused by a weapon like MO 3 (stick). Injuries No. 6 and 12 were incised wounds: one on the right side of chest cutting through the muscle plane downwards for a depth of 7 cms and the other on the front of right upper arm. Those injuries, according to P.W.51, could be caused by a weapon like MO.1 (knife). Injury Nos. 2 to 5, 9, 10, 16 to 20, 22, 25 and 27 were abrasions. The doctor said that some of the above injuries could be caused by the tip of Mos. 3 and 4 (iron rod). Injury Nos. 7, 8 and 24 were abraded contusions which could be caused by a weapon like MO. 3. Injury Nos. 11, 13, 14, 15, 23 and 26 were contusions and according to the doctor those injuries could be caused by MO.4.
11. From the above narration of the prosecution case and the evidence adduced in support thereof we find that the prosecution sought to prove the following facts and circumstances to bring home the charges levelled against the accused:
(i) the six accused persons came to the house of the deceased on that fateful night and three of them entered inside his bed room and assaulted him with different weapons. Those three, who entered into the bed room and actually assaulted him, were A1, A2 and A3, (the appellants before us);
(ii) the deceased made an oral dying declaration before P.Ws.l3 and 4 to the effect that A1 was amongst the assailants;
(iii) the deceased died owing to the injuries sustained at the hands of the assailants;
(iv) the appellants along with the other four accused persons came to the house of the deceased in a car bearing registration No. KEK 3114 and after committing the murder returned in the same vehicle; and (v) A1 had a motive to commit the murder as the deceased had, ten days earlier, reported about his nefarious activities in the `Thaniniram' daily.
12. From the record we notice that the defence did not dispute that the deceased was found lying with a number of bleeding injuries on his person in the bed room on his house in the night of May 28, 1990 and that on the way to the hospital he succumbed to those injuries. Even otherwise, the evidence of P.W.1, P.W.4 and other neighbours unmistakably proves these facts. The nature of injuries found on the person of the deceased and the opinion of P.W.51 as to the manner how the injuries could be sustained also prove, in no uncertain terms, that more that one person was responsible for the murder. In the context of the above facts the trial Court proceeded to consider whether the deceased met with his homicidal death in the manner alleged by the prosecution.
13. For that purpose the trial Court first took up for discussion the evidence of P.W.3, the sole eye witness, and rejected her claim that she had seen the incident by the light of the kerosene lamp which was burning in her room with the following observations:
"The explanation offered by PW 3
for keeping the lighted lamp in her
room instead of keeping it in the
other room is not reasonable or
convincing. Therefore, the version
of PW3 that she had kept a lighted
lamp in her room and it is with the
said lamp that she rushed to the
scene of occurrence is improbable
and unbelievable. She might have
lighted the lamp after hearing the
hue and cry from the nearby room
and gone to the scene room with the
lamp. But the assailants would have
escaped from there by the time. If
that be so she might not have the
opportunity to see the incident or
identify the assailants. Even
assuming that PW3 had gone to the
scene with a kerosene lamp as
spoken to by her it cannot be said
that she was able to see the
incident or identify the culprits.
According to her, the entire
incident occurred just after her
arrival at the scene of occurrence.
The lamp which is said to have been
taken with PW3 is a small one
without any covering glass. If such
a lamp is taken to a place of
turmoil as in present case one
cannot keep it burning all the
while as there is every possibility
of getting it extinguished within
no time due to the movement of the
lamp in the hands of the person
carrying it. To keep it burning
till the end of the incident one
should keep it away from the scene
of occurrence. In that case there
may not be sufficient light from
the lamp to see the incident or
identify the culprits at the scene
of occurrence. More over when there
is attack with deadly weapons such
as knife, stick, iron rod etc. one
may not dare to go near the scene.
In the instant case it is doubtful
as to whether PW3 had gone to the
scene at all. If that be so, there
would not have been sufficient
light at the scene of occurrence in
which the incident could be seen by
this witness especially when she is
of 62 years."
14. Then, assuming that she had seen the assault, the trial Court posed the question whether she could identify the assailants and answered the same in the negative with the following words:
"If P.W.3 had been holding the lamp
at a little distance from the scene
of occurrence she would not have
identified the accused especially
when they are utter strangers to
her. It is to test the veracity of
the witness on the question of his
capacity to identify unknown
persons whom the witness may have
seen only once, that the test
identification parade is insisted
upon. It is to be noted that to
identify the accused during the
examination of PW3 before this
Court she had to step down from the
box and go near the dock with the
permission of the court. The
difficulty shown by the witness in
identifying in the witness box
would indicate that she is having
defective vision either due to old
age or for some other reason. This
witness has stated that no police
office had shown the accused to her
at any time. At the same time she
has admitted to have seen the
accused in the dock on the day
previous to her examination. It is
therefore clear that she had the
opportunity of seeing and
identifying the accused (At to A3)
before they were identified in
court. While reminding the
necessity of test identification
parades in cases where the accused
are not known to the witnesses the
Supreme Court in Kanan Vs. State of
Kerala (AIR 1979 SC 1127) observed
that where a witness identifies an
accused who is not known to him in
court for the first time, his
evidence is absolutely valueless
unless there has been a previous
identification parade to test his
power of observation. If no
identification parade is held then
it will be wholly unsafe to rely on
his hare testimony regarding the
identification of an accused for
the first time in Court. I am
therefore of opinion that the
evidence of PW 3 who claims to have
identified A1 to A3 in court for
the first time is unreliable in the
absence of test identification
parade."
15. The oral dying declaration of the deceased about which P.Ws.3 and 4 testified was discarded by the trial Court as, according to it, the same was tainted with infirmities and inherent improbabilities. In drawing the above interference it observed that Ext.P.1 which was lodged by P.W.1 and wherein he had stated about the above dying declaration was a suspicious document and, therefore, the story of the dying declaration allegedly made in presence of P.Ws.1,3 and 4 was also suspicious. The other reason for disbelieving the testimonies of P.Ws.3 and 4 in this regard was that the neighbours who accompanied P.W.4 to the house of the deceased had categorically stated that the deceased did not say anything when P.W.1 asked him about the incident and consequently they could not have heard the deceased saying that he was stabbed by the appellant. The third and the last reason to disbelieve the dying declaration was that P.W.3 did not disclose about it to any of the persons who had assembled there.
16. The trial Court then took up for consideration the evidence of P.W.50 and disbelieved his evidence primarily on the ground that through in the trip sheet of the vehicle (Ext. P.54 a) the place of departure and place of arrival were shown, the name of the person who performed the journey was not there. Besides, the trial Court observed, P.W.31 (Suresh) was shown as the registered owner of the vehicle in Ext. P.54 but P.W.50 was the registered owner. In absence of any other evidence the trial Court held that it could not be said on the basis of Ext. P.54 that it was A1 who performed the journey on May 28, 1990. While on this point, the trial Court also found that the contention of A1 that under police coercion P.W.50 was compelled to give a statement before the Magistrate under Section 164 Cr.P.C. (Ext.P.42) was probable.
17. The trial Court lastly dealt with the motive ascribed to A1 for committing the murder in the light of the contention raised on his behalf that Thadivakkan referred to in Ext. P.31 was not A1 (Urulikunnam Vekkachan) and held it to be insufficient and weak. The reason therefor is as under:-
"It is true that there is no
evidence on record to show that
Thadi Vakkan referred to in
Ext.P.31 (a) as Urulikunnam
Vekkachan. Even assuming it to be
so it cannot be said that Ext P.31
would cause any provocation to A1.
On the other hand the image of the
person who is referred to as Thadi
Vakkan on account of his alleged
association with the high police
officers in Kottayam District is
boosted by the publication of Ext.
P.31 (a) news item. At the same
time the reputation of the high
police officials in Kottayam
District (referred as
Superintendents in the news item)
has been tarnished by the said
publication. Therefore the persons
who are really aggrieved by Ext.
P.31(a) are the high police
officials in Kottayam District."
With the above findings and observations the trial Court acquitted all the accused persons.
18. Coming now to the impugned judgment, we notice that the High Court first detailed the evidence of P.W.3 so far as it related to her having witnessed the incident and identified the assailants and then made the following observations: "Though 62 years old at the time of the incident, her faculties were intact and vision normal/unimpaired. No doubt the intruders were strangers to her; but she claimed to have identified them in the light shed by her lamp as also the torches, during those moments her son was belaboured and attacked and reached to the scene in a spontaneous and natural manner. She had given a graphic account of what had taken place in the room, which had hardly the shades of a tutored version. The scene not only shocked her but had left its imprint upon her mind, that she recalled effortlessly at the trial."
19. The High Court then adverted to the reasons canvassed by the trial Court for disbelieving P.W.3 (quoted earlier) and made the following comments:
"There was nothing to suspect that
she kept a light burning since she
said that she usually went to sleep
between 12 - 1.00 a.m. Yes! that
accorded with the practice of some
old people who sleep late. That
there was no lamp in the room where
the deceased slept was
understandable since his wife and
child slept by his side.
The court below has observed
that as she rushed to the room the
lamp she had perhaps would have
been blown off since it was
uncovered and that if would have
been impossible for her to have
seen anything in the total darkness
that existed. The said observation
seemed to have come out of distrust
of her version and amounted to a
piece of imaginative exercise that
was inappropriate. The manner in
which her evidence had been dealt
with leaves much to be desired.
Having gone through it in detail,
we have no doubt about her veracity
that the court below suspected
without jurisdiction."
No comments:
Post a Comment