IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 CRL.A.No. 672 of 2005() ----------------------- SC.519/2003 of ADDL. SESSIONS COURT (ADHOC-1), THODUPUZHA C.P. NO.33/2001 OF JFCM, ADIMALY CRIME NO.26/2001 OF VELLATHOOVAL POLICE STATION. .................... APPELLANT(S): ACCUSED. ------------------------------------- BINU GEORGE, S/O.GEORGE, THONNACMAKAL HOUSE, 5TH MILE BAHGOM, KUKKADAM KARA, KONNATHADY VILLAGE. BY ADV. SRI.B.RAMAN PILLAI SRI.GEORGE PHILIP SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED SRI.DELVIN JACOB MATHEWS RESPONDENT(S): COMPLAINANT. ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 672 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of March, 2009. JUDGMENT Bhavadasan, J, This case reveals the old story of a drunken brawl in a toddy shop followed by stabbing resulting in death. 2. The accused, namely, Binu George and deceased George were friends. They have monetary transactions between them. On the date of the incident, i.e., 27.1.2001 at about 8.15 p.m. they had a scuffle and quarrel in the toddy shop. They were chucked out of the toddy shop. Soon thereafter a few people heard a cry and P.W.1 and others rushed to the spot. P.W.1, who is closely related to the deceased found the deceased lying on the road with a bleeding injury on his chest. The accused was seen standing near with a blood stained knife in his hand. P.W.1 went to Vellathooval Police Station in the night itself and laid Ext.P1 First Information Statement. P.W.15, Station House Officer, who was then in the Station recorded Ext.P1 statement furnished by P.W.1 and on the basis of that statement registered Crime No.26 of 2001 for the offence punishable under Section 302 Indian Penal Code as per Ext.P20 FIR. P.W.15 arrested the accused in the Crl.Appeal. 672/2005. 2 same night itself and based on Ext.P17(a) confession statement said to have been given by the accused tried to recover the knife. He was unable to do so in the night. The next day at the behest of the accused M.O.1 knife was recovered. Inquest over the body of George was conducted and Ext.P14 report was prepared. The body was sent for postmortem. P.W.10, the Doctor, conducted the autopsy and furnished Ext.P15 report. In the meanwhile P.W.15 went to the place of occurrence and prepared Ext.P16 scene mahazar. M.O.4 and M.O.5 clothes said to have been worn by the accused at the time of the incident were recovered as per Ext.P18 mahazar. P.W.15 had got the scene plan prepared. The articles ceased during investigation were sent for chemical examination and Ext.P21 is the report. Investigation was then taken over by P.W.16, who recorded statements of witnesses. His successor in office, P.W.17 completed the investigation, verified the records and laid the charge sheet before the court. 3. Judicial First Class Magistrate, Adimali, before whom the final report was laid took cognizance of the offence. On finding that the case is one exclusively triable by Court of Sessions, the learned Magistrate committed the case to Sessions Court, Thodupuzha. 4. The Sessions Court, Thodupuzha on receipt of records and on the appearance of accused framed charge under Section 302 IPC. The Crl.Appeal. 672/2005. 3 accused pleaded not guilty and preferred to be tried. The trial court therefore examined P.Ws.1 to 17 and marked Exts.P1 to P21. M.Os. 1 to 4 were identified and marked. Since the court found that the accused could not be acquitted under Section 232 of Criminal Procedure Code after questioning him under Section 313 of the Criminal Procedure Code, the accused was asked to enter on defence, who chose to adduce no evidence. However, Exts.D1 and D2 were marked on his side. 5. On an appreciation of the evidence in the case, the trial court found the accused guilty. He was convicted for the offences punishable under Section 302 IPC and was sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of which to undergo simple imprisonment for six more months. 6. The said conviction and sentence is assailed in this appeal. 7. The question that arises for consideration is whether any interference is called for with the conviction and sentence passed by the court below. 8. The facts fall within a narrow compass. The prosecution case is that the accused owed money to the deceased and due to the previous enemity the accused had committed the questionable act. The court below chose to accept the case put forward by the prosecution. Crl.Appeal. 672/2005. 4 9. Learned counsel appearing for the appellant pointed out that the lower court has erred both on facts and in law. Learned counsel draw attention of this court to the fact that P.Ws. 2 to 6, the prosecution witnesses, during the course of evidence have turned hostile and their evidence is of no help. According to learned counsel admittedly P.W.1 had not seen the incident as such. Learned counsel pointed out that the court below had placed considerable reliance on the statements given by the witness under Section 161 of Cr.P.C. That is erroneous in law. According to the learned counsel the scrutiny of the evidence in the case will reveal that the incident has not occurred as alleged by the prosecution. There is clear evidence to show that even after the accused and the deceased had come out of the toddy shop there was quarrel and scuffle between them. This vital factor has been omitted to be noticed by the trial court. According to the learned counsel the possibility of some one else doing the objectionable act cannot be ruled out altogether. A reading of the evidence of P.W.8, wife of the deceased will show that the theory of enemity between the accused and the deceased is without basis and foundation. Learned counsel contended that by no stretch of imagination it could be said that the evidence available in the case would relate to the irresistable conclusion that it was the accused, who alone had committed the act. Crl.Appeal. 672/2005. 5 10. As an alternative the learned counsel pointed out that even assuming that the prosecution has succeeded in establishing that the act was committed by the accused, it can be seen that, at worst, the offence can fall under Section 304 Part II of IPC. There was only a single stab injury and also that there was no premeditation on the part of the accused to commit the act. 11. Learned Public Prosecutor on the other hand pointed out that the court below has considered the evidence in detail and after analysing the same has come to the conclusion that the act has been established. Learned Public Prosecutor points out that the court below has rightly noticed that the case is based on circumstantial evidence and after considering the evidence has come to the conclusion that the circumstances proved by the prosecution pointed to an irresistable conclusion that it was the accused who had committed the act. May be there was only a single stab injury caused by the accused, but that by itself is no ground to bring down the offence from Section 302 to 304. According to the learned Public Prosecutor one cannot omit to notice that the injury was on the vital part of the body and had penetrated into heart. According to learned Public Prosecutor no grounds are made out to interfere with the judgment of the court below. Crl.Appeal. 672/2005. 6 12. Evidently the case is built on circumstantial evidence. There was no direct evidence regarding the incident. P.W.1, the author of first information, admittedly had come after the incident had occurred. He had found the deceased lying in a pool of blood with the accused standing nearby with a knife in his hand. 13. It is well settled that while appreciating circumstantial evidence the courts have been cautioned that the court must adopt a very cautious approach and should record the conviction only if all the links in the chain are complete, pointing to the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating the circumstantial evidence and if the evidence relied on reasonably capable of two inferences, one in favour of the accused must be accepted. The circumstances relied on must have been fully established and must be consistent only with the hypothesis of guilt. But, that is not to say that the prosecution has to meet any hypothesis put forward by the prosecution and has to answer them however far fetched and fanciful it might be, nor does it mean that the prosecution evidence must be rejected on the slightest doubt because law permits rejection, if the doubt is reasonable and not otherwise. It is not every lingering or fanciful doubt that can be Crl.Appeal. 672/2005. 7 regarded as a reasonable doubt. A doubt to be reasonable must be such that a reasonable person would entertain. Doubt of fleeting nature approximating to vague hunches cannot pass muster as reasonable doubt. Usually three tests are applied in such cases. They are, (1) The circumstances from which the inference of guilt is sought to be drawn, must be cogently and fully established. (2) Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused. (3) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. 14. Learned counsel referred to various other decisions including the decision reported in Chattar Singh v. State of Haryana (AIR 2009 SC 378), wherein after referring to various decisions it was held as follows: “A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be Crl.Appeal. 672/2005. 8 based on circumstantial evidence, must be fully established. They are : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable or any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 15. As already noticed, P.W.1 who furnished the first information statement has not seen the incident. He is closely related to the deceased. According to him, he runs a STD booth in the area. He was in the STD booth on the relevant date and at the relevant time. According to him, at about 8 p.m. from about 100 meters he heard a cry “.............................”. He ran to that place. The sound came from near the Crl.Appeal. 672/2005. 9 shop of Kanthari Kochettan. He found a crowd of people there. He found the accused standing near with a blood stained knife. He found the deceased lying on the ground with bleeding injury on the left side of his chest. He would say that he along with P.W.2 removed the deceased to the hospital. On the way to the hospital the deceased breathed his last. On reaching the hospital, namely, Morning Star Hospital, doctor pronounced him dead. According to him, the accused owed money to the deceased. He says that he happened to hear in that regard, there was a quarrel between the accused and the deceased on the date of the incident in the toddy shop. 16. Even though P.Ws. 2 to P.W.6 were examined, they betrayed the prosecution. All of them turned hostile to the prosecution and refused to support the prosecution case. 17. It was therefore contended by the learned counsel for the appellant that the evidences of those witnesses are of no use. 18. It is difficult to accept the above proposition. Even assuming that the witnesses are turned hostile, if there are statements made by them which supports the prosecution, those can be relied on by the prosecution for proving the incident. It is well settled that the principle of 'falsus in uno falsus in omnibus' is not applicable in India. In the decision reported in Triloki Nath v. State of U.P. (AIR 2006 SC 321) it was held as Crl.Appeal. 672/2005. 10 follows: “ 'Falsus in uno, Falsus in omnibus' is not a run of evidence in criminal trial and it is the duty of the court to disengage the truth from falsehood, to sift the grain from the chaff.” 19. P.W.3, driver by profession, denied having seen the incident. According to him, when he was standing in the jeep stand he heard a sound from near the toddy shop. According to him, when he reached there, he saw the deceased lying on the ground with a bleeding injury. He would say that P.W.2 was present at the relevant time. He however denied having seen the accused in the place of occurrence. He would say that he had queried as to what had happened, he heard someone saying that the accused had stabbed him. He brought a vehicle and the deceased was carried to the hospital. He disowned a few statements given to the police during investigation. 20. P.W.4 would say that on the date of the incident there was a quarrel between the deceased and the accused in the toddy shop. The time was at about 8 p.m. He says that he separated them. George left the place and soon thereafter the accused followed him. A little later, while he went out of the toddy shop he found the deceased lying on the ground and the Crl.Appeal. 672/2005. 11 accused standing nearby. He also disowned several statements given by him to the police. 21. Evidence of P.W.6 shows that he had not seen the incident. However, he would say that on the date of the incident at about 7.45 the deceased had come to the toddy shop. At that time the accused was not there. A short while thereafter the accused too came to the toddy shop. He would say that there was a scuffle and push and pull between the deceased and the accused. They were separated. Thereafter deceased George left the place followed by the accused. He denied having seen the rest of the acts. 22. As already noticed, there is no direct evidence regarding the incident. The evidence of P.W.7 also shows that while he was returning home, he had occasion to see a crowd near the shop run by Kanthari Kochettan and the inquisitiveness took him to the spot. He found the deceased, who, according to him, is closely related to him, lying on the ground with the bleeding injury on his chest. He would say that he had occasion to see the accused standing on the road with a knife. The knife had blood on it. 23. Even though most of the witnesses turned hostile, certain incriminating statements are available from their evidence. Of course, none Crl.Appeal. 672/2005. 12 of them, including P.W.1, claim to have seen the incident. But evidence of P.Ws. 2 to 7 clearly indicate that there was a quarrel and scuffle between the deceased and the accused in the toddy shop. It is true that the reason for the same is not veryclear from the evidence. The evidence also discloses that the accused owed money to the deceased. The evidence already referred to indicate that when there was a scuffle between the accused and the deceased, they were separated and sent out of the toddy shop. The evidence also discloses that initially the deceased left the shop followed by the accused. On a perusal of the evidence, it can be seen that it was soon thereafter the cry was heard and people had gathered at the spot. The evidence referred to would clearly show that when people gathered at the place , they saw the deceased lying on the ground with a bleeding injury on the left side of his chest. Some of the witnesses have spoken to the fact that they had occasion to see the accused standing with the blood stained knife nearby. The following facts therefore has been clearly established. i) There was a quarrel between the deceased and the accused in the toddy shop. ii) They were separated by the employee in the toddy shop. iii). Goerge left the place first. iv). He was followed by the accused. Crl.Appeal. 672/2005. 13 v). It was soon thereafter that the incident had occurred. vi). A few people gathered at the spot. vii). The evidence of prosecution witnesses show that when they reach the place they found the deceased lying on the ground with a bleeding injury on the left side of his chest. viii). Some of the witnesses had stated that they had occasion to see the accused standing nearby with a knife, which had blood stains on it. 24. On going through the evidence, it could be seen that the last seen theory is applicable to this case. The said theory needs no elucidation. In the decision reported in Chattar Singh v. State of Haryana (AIR 2009 SC 378) it was held as follows: “So far as the last seen aspect is concerned it is necessary to take note of two decisions of this court. In State of U.P. v. Satish (2005(3) SCC 114) it was noted as follows: “22. The last seen theory come into play where the time- gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the authority of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. Crl.Appeal. 672/2005. 14 In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P.Ws.3 and 5, in addition to the evidence of P.W.2.” 25. One contention needs to be referred to. Learned counsel appearing for the appellant submits that if as a matter of fact it was the accused, who had done the act, he would not have remained in the place. 26. It is virtually impossible to determine as to how a particular person may react in a particular circumstance. Different persons react differently and in different manner. It may be that in the circumstances already noticed there was no actual intention on the part of the accused to stab the deceased. But under the circumstances in which the incident had occurred had made him repentant. The fact remains that he was standing near the deceased and had a blood stained knife with him. 27. The next incriminating circumstance against the accused is the recovery of the knife, namely M.O.1. According to the prosecution, M.O.1 was recovered on the basis of Ext.P17(a) confession statement said to have been made by the accused while in custody. Crl.Appeal. 672/2005. 15 28. The evidence in this regard consists of the testimony of P.W.15, the investigating officer. It is significant to notice that even though the confession statement marked as Ext.P17(a) does contain the authorship of concealment, the statement given by P.W.15 before court does not contain the same. However, that by itself may not be a ground to discard the evidence of P.W.15 regarding the recovery. It is clear from the evidence of the said witness that M.O.1 knife was recovered on the basis of the confession statement given by the accused and as led by him. 29. Even assuming that there is some infirmity in the evidence, at any rate the act of the accused is relevant under Section 8 of the Indian Evidence Act. 30. Ext.P21 is the Chemical examination report. That shows that M.O.1 knife had human blood stains on it. 31. Learned counsel for the appellant took objection to the act of the court below relying on statement by the accused under Section 161 Criminal Procedure Code. A perusal of the judgment does indicate that it is so. Statement given under Section 161 of the Criminal Procedure Code cannot be treated as evidence at all. (See 2007(3) KLT 892). 32. The above fact by itself is not sufficient to disregard the other incriminating items of evidence available on record. The Crl.Appeal. 672/2005. 16 circumstances, which lead to the conclusion that it was the accused, who alone had committed the act, have already been referred to. It is unnecessary to repeat them, except to say that the proved circumstances lead to the irresistible conclusion that it was the accused and the accused alone who had committed the objectionable act. The court below was justified in coming to the conclusion that the vital injury was indeed inflicted by the accused. 33. All that now remains to be considered is what is the offence committed by the accused. According to the learned counsel for the appellant, there was only a single stab injury caused by the accused and the evidence is clear that there is no premeditation or motive to kill the deceased. Learned counsel drew attention of this court to the evidence of P.W.8, who is none other than the wife of the deceased. According to her, her husband and the accused were on pleasant and good terms. Learned counsel for the appellant stressed the fact that on the basis of the evidence it can be seen that even after the accused and the deceased left the toddy shop the quarrel between them continued. None of the witnesses, according to learned counsel, had spoken that before the incident they had seen the accused carrying weapon with him. Learned counsel drew attention of this court to the statement given by the accused Crl.Appeal. 672/2005. 17 when questioned under Section 313 Cr.P.C.. According to the accused, it was George, who was carrying the weapon and in the scuffle he got injured. Learned counsel submits that even if the said contention cannot be accepted, it is very evident that the offence can at best come only under Section 304 Part II of IPC. 34. Learned Public Prosecutor contended that merely because a single stab injury alone had been inflicted by the accused, it does not lead to the conclusion that Section 302 IPC has no application. Learned Public Prosecutor pointed out that the injury was a deep and serious one and at