IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 CRL.A.No. 1130 of 2007(A) ------------------------- SC.273/2003 of I ADDL. SESSIONS COURT, KOLLAM CP.194/2000 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... APPELLANT(S): APPELLANT ----------------------- RETNAKARAN, C.NO.964, CENTRAL PRISON, TRIVANDRUM. BY ADV. NOORJIE NOUSHAD(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. ------------------------------- Crl. Appeal No. 1130 of 2007 ------------------------------- Dated this the 20th day of December, 2011 J U D G M E N T Basant, J. Was the learned Sessions Judge justified in accepting and acting upon the evidence of PWs.1 to 4 who had turned hostile to the prosecution to found a verdict of guilty, conviction and sentence against the appellant under Section 302 IPC ? Is the accused entitled to any benefit of doubt from the totality of circumstances? These questions are raised ably by Mrs. Noorji Noushad, the learned counsel for the appellant, in this appeal. 2. The prosecution alleged that the appellant, a petty worker, in a toddy shop had intentionally caused the death of the deceased, a young man aged about 28 years by inflicting three stab injuries on him at about 7.00 pm. on 30.12.1998 outside but near the toddy shop where he was working as an employee. 3. The investigation commenced with Ext.P1 F.I. statement lodged by PW.1 (allegedly a witness to the occurrence) before the police. PW.13, the Investigating Officer conducted the entire investigation and filed final report/charge sheet alleging the Crl.Appeal No.1130 of 2007 2 commission of the offence under Section 302 IPC against the appellant. The learned Magistrate after complying with all legal formalities committed the case to the Court of Sessions. The appellant denied the charge framed against him by the learned Sessions Judge. Thereupon, the prosecution was directed to adduce evidence. The prosecution examined PWs. 1 to 13 and proved Exts.P1 to P17. M.Os 1 to 5 were also marked. 4. The appellant-accused took up a defence of total denial. According to him, he was not in any way involved in the incident in which the deceased suffered injuries. He did not adduce any defence evidence – oral or documentary. 5. PWs.1 and 2 are allegedly witnesses to the occurrence proper. PW.1 had lodged Ext.P1 FI statement. PW.2 has his shop near the place of occurrence. He is none other than the brother-in-law of the deceased. The prosecution wanted to unfold its case about infliction of injury by the appellant on the deceased by the evidence of PWs. 1 and 2. They both turned hostile to the prosecution. They did not support the prosecution’s case that they had witnessed the occurrence Crl.Appeal No.1130 of 2007 3 proper. However, they advanced a different version contrary to their earlier version before the police that they had both perceived a dying declaration made by the deceased that he suffered the injuries on his person at the hands of the appellant. In that view of the matter, they were not completely hostile to the prosecution though they ate their own words earlier before the police and advanced a totally different version partly supporting the indictment against the appellant herein. 6. PWs. 3 and 4 are witnesses who were examined by the prosecution to prove the alleged motive which the appellant entertained towards the deceased. The deceased was a neighbouring shop keeper. He frequently used to visit the toddy shop of the appellant. On that morning and through the day, there were instances of incident in the toddy shop between the appellant and the deceased and that according to the prosecution had operated as the motive. Both PWs. 3 and 4 turned hostile to the prosecution. However, they supported the core of the case of the prosecution that there was an incident in the morning in which the appellant and the deceased were on Crl.Appeal No.1130 of 2007 4 opposite sides/were at disagreement. 7. The learned Sessions Judge notwithstanding the hostility of PWs 1 to 4 came to the conclusion that such portion of the testimony of PWs 1 to 4 which can safely be accepted and acted upon is sufficient to support the charge leveled against the appellant by the prosecution. The learned Sessions Judge held that even if the version of PWs. 1 and 2 before the police in the course of the investigation were rejected and even if their present version of the deceased having made extra judicial confession were eschewed, there was sufficient evidence still available to support the indictment against the appellant. In that view of the matter, the learned Sessions Judge proceeded to pass the impugned judgment holding the appellant guilty of the charge under Section 302 IPC. 8. We have heard the learned counsel for the appellant, Mrs.Noorji Noushad and the learned Prosecutor. The learned counsel for the appellant submits that the court below was absolutely wrong in placing reliance on the oral evidence of PWs. 1 to 4. No part of their testimony could be salvaged and Crl.Appeal No.1130 of 2007 5 made use of by the court safely, contends the learned counsel for the appellant. The court below ought to have noted that PWs. 1 to 4 had turned hostile not to support the appellant in any manner, but because they had a conscientious inability to support the case of the prosecution. The learned counsel further submits that the evidence of recovery of M.O.1 weapon under Ext.P6, on the basis of the information furnished by the appellant in the course of confession to the Investigating Officer must also have been rejected, lock, stock and barrel by the learned sessions Judge. To sum up, the learned counsel for the appellant contends that there was nothing in the testimony of PWs. 1 to 4 which survives and was available for the Court to found its verdict of guilty and conviction against the appellant. 9. The learned Prosecutor on the other hand contends that mere hostility of prosecution witnesses is by itself not a sufficient reason to throw over board the case of the prosecution in a mechanical manner. An anxious consideration of the oral evidence of PWs. 1 to 4 must convincingly suggest to the Court that they were trying to some how save the appellant from the Crl.Appeal No.1130 of 2007 6 indictment against him. The incident had taken place on 30.12.1998. The appellant was arrested initially on 1.1.1999. He was enlarged on bail on 22.4.1999. Even though the final report was filed in 2000, the appellant was not available for trial and the committal proceedings dragged on indefinitely. He was arrested later on 3.8.2002 and the case was committed to the Court of Sessions. He was released on bail again on 20.9.2002. He started absconding again. Long later, he was arrested on 26.9.2005 and it was thereafter that the trial proceeded. He continues in custody from such date. 10. The learned Prosecutor contends that the hostility of PWs. 1 to 4 is understandable in these circumstances. It is common knowledge that the delay in the trial prompts witnesses to turn hostile. Righteous indignation against the crime and the criminal which is the prevailing at or immediately after the occurrence gives way to misplaced sympathy and undeserved charity as time passes by. Here is an eminently classic case where the hostility of PWs. 1 to 4 is attributable to such undeserved sympathy and charity in favour of the appellant. Crl.Appeal No.1130 of 2007 7 But notwithstanding the clever hostility of PWs. 1 to 4, sufficient indisputable data are available from their evidence that the learned Sessions Judge had alertly used those circumstances to come to a safe and firm conclusion of guilt against the appellant. The course adopted by the learned Sessions Judge does not deserve to be faulted. The yearning shown by the learned Sessions Judge to pursue the search for truth even after the hostility of the principal witnesses deserve appreciation, contends the learned Prosecutor. 11. We have considered all the relevant inputs. An appellate judgment is and must be read in continuation of the judgment of the trial court. In that view of the matter we do not deem it necessary to re-narrate the oral and documentary evidence relied on by the prosecution. Suffice it to say that the learned counsel has taken us in detail through the oral evidence of PWs. 1 to 13. We have been taken through the contents of Exts.P1 to P17 also in detail. The charge framed by the Sessions Court and the answers given by the appellant in his Section 313 examination have also been read to us in detail. We shall advert Crl.Appeal No.1130 of 2007 8 to relevant materials specifically if and wherever necessary. 12. Before we proceed to consider the oral evidence of PWs. 1 to 4, it will be apposite to remind ourselves that the doctrine, falsus in uno, falsus in omnibus, has no application in India. It is trite, and it is unnecessary to refer to precedents on that aspect, that the evidence of a hostile witness does not deserve to be thrown to the dustbin immediately and mechanically. The common Indian witness is prone to exaggerate. He is prone at times not to reveal the truth entirely to court. A prudent Indian mind, whose standards every Judge is mandated under Section 3 to follow, cannot lightly throw his hands up, as soon as his confronts hostility of the witnesses. It is true that the system of truth discovery in administration of criminal justice depends a lot on the sanctity of oath. Experience reveals that so deplorable is the perceived sanctity of oath among the polity that it can be a frustrating experience for the truth seeker to arrive a truth in the wake of such hostile witnesses. We need only remind ourselves that hostility of a witness is no excuse for a court to discard such testimony in an Crl.Appeal No.1130 of 2007 9 omnibus manner. The evidence will have to be subjected to careful and cautious scrutiny to ascertain whether any part of the testimony of such a hostile witness can or deserves to be accepted. If any portion of such testimony deserves acceptance, notwithstanding such hostility, it is perfectly permissible for a court to rely on such testimony which is inspiring. 13. We first of all take note of the evidence of PWs. 3 and 4. PWs. 3 and 4 are examined primarily to prove the alleged strain in the relationship between the appellant on the one hand and the deceased on the other, on account of the events which transpired on that day. PWs. 3 and 4 did speak about such strained relationship and the events which occurred on that day which contributed to such strain in the relationship. It is true that PWs. 3 and 4 have been declared hostile. It is true that they did not support the prosecution case entirely. It is true that according to the prosecution they have suppressed certain aspects of the truth from the court on oath. All these notwithstanding, we are convinced that the evidence of PWs. 3 and 4 is sufficient to come to a conclusion that there was a Crl.Appeal No.1130 of 2007 10 strain in the relationship between the appellant and the deceased consequent to events that transpired earlier on that day. 14. Was such strain sufficient to operate as a motive for murder ? This query is raised. It would be an unproductive venture for any Court to caliberate motive as sufficient or not sufficient to prompt a person to commit murder. The evidence clearly shows that on that morning, persons including the deceased had gone to the toddy shop where the appellant was working and there was exchange of words between the appellant and the deceased. Not a semblance of doubt is left in the mind of the court notwithstanding the hostility of PWs. 3 and 4 about the existence of such strain in the relationship. Of course, the prosecution wanted to highlight that strain and wanted to place before the court the events that had happened in the course of the day also. But consequent to the hostility of PWs. 3 and 4 the prosecution was not able to place before court the entire circumstances. Exts.P3 and P4 contradictions were marked when PWs.3 and 4 were examined by the Prosecutor in Crl.Appeal No.1130 of 2007 11 the course of cross examination. They only help the court to conclude that PWs. 3 and 4 were not willing to go the whole hog with the prosecution to unfold its case. At any rate, their hostility cannot leave behind any semblance to doubt on the question that there was strain in the relationship between the appellant and the deceased on account of events that transpired on that day from morning - prior to the occurrence. 15. We now come to the evidence of PWs. 1 and 2. PW.1 claims to be the employee elsewhere. He came to the shop of PW.2 to purchase some articles. It is then that he allegedly witnessed the occurrence in which the appellant planted stab injuries on the deceased. PW.2 is the brother-in- law – wife’s sister’s husband of the deceased. According to the prosecution, he had also witnessed the incident in which the appellant planted the injuries on the deceased with M.O.1 knife. The prosecution wanted to rely on Ext.P1 FI statement lodged by PW.1 before the police at 5.30 am. on the next morning. The First Information Report was registered on the basis of Ext.P1 F.I statement and Ext.P1(b) FIR had reached the learned Crl.Appeal No.1130 of 2007 12 Magistrate at 11.30 am. on 31.12.1998. The gap of time from the incident (7 pm. on 30.12.1998 to 5.30 am on 31.12.1998) is sought to be explained by the prosecution on the ground that PWs. 1 and 2 had gone with the injured/deceased to the Doctor. He was pronounced dead later and it is thereafter that PW.1 went to the police to lodge Ext.P1 F.I statement. The contents of Ext.P1 F.I statement is relied on by the prosecution to show that PW.1 is deliberately deviating from his earlier version. PW.1, we note, is a literate person, he having studied up to the Pre-degree class. This is important while the court appreciates the hostility of PW.1 in the light of his admitted signed statement, Ext.P1, promptly lodged before the police. 16. We come to PW.2 now. As stated earlier, PW.2 is the brother-in-law of the deceased. The core of his version before the police can be ascertained from Ex.P2 contradiction marked by the Prosecutor. Both PWs.1 and 2 had asserted that they had witnessed the occurrence. The incident was in 1998 where as PWs.1 and 2 were examined before the court in July 2006. PWs.1 and 2 when examined in court gave up the version Crl.Appeal No.1130 of 2007 13 that they had actually witnessed the occurrence, but evidently in an attempt to prove self righteousness, they attempted to advance a version that the deceased had made dying declaration to them. Both PWs. 1 and 2 spoke about the dying declaration. 17. In this context, it will be apposite to note that the lodging of Ext.P1 FI statement is admitted by PW.1. PW.2 when examined in court was confronted with his Ext.P2 statement before the police. He denied Ext.P2 statement, but admitted that the contents of Ext.P2 were true. What we intend to note is that hostility of PWs.1 and 2 cannot justifiably generate any doubt, distrust or reservation in the mind of the court against the core of the prosecution case. 18. However, there is no substantive evidence about the ocular perception of the occurrence by PWs. 1 and 2. The contents of Ext.P1 FI statement cannot obviously be used as substantive evidence. PW.2 when confronted with Ext.P2 had admitted the truth of the contents therein, though making of Ext.P2 statement before the police was denied. We do not in these circumstances want to rely on the admission of the Crl.Appeal No.1130 of 2007 14 contents of Ext.P2 by PW.2 as substantive evidence for any purpose. We accept, as done by the learned Sessions Judge, that the evidence of PWs. 1 and 2 cannot enable the court to accept the prosecution’s case about their having witnessed the actual infliction of injury. 19. We now come to the dying declaration allegedly made by the deceased to PWs. 1 and 2. The learned counsel for the appellant argues that it would be absolutely incorrect to place any reliance on such dying declaration spoken to by PWs. 1 and 2. They had no such case before the police. The prosecution has no such case of any dying declaration made by the deceased to PWs. 1 and 2. The alleged cause recorded in Ext.P8 wound certificate by PW.7 doctor does not also rhyme well with the statement of PWs. 1 and 2 that the deceased had made such a statement to PWs. 1 and 2. At any rate, we are satisfied that such additional information volunteered by PWs.1 and 2 which admittedly is not supported by any earlier statements made by them cannot safely be accepted. The oral evidence of PWs. 1 and 2 about the dying declaration made by Crl.Appeal No.1130 of 2007 15 the deceased to them which is totally unsupported by any earlier version of theirs cannot also hence be accepted. 20. But as noted by the learned Sessions Judge, the evidence of PWs. 1 and 2, even if we take away the ocular perception of infliction of injury and the dying declaration allegedly made by the deceased to them, still has certain elements which can safely be accepted. It is that portion of testimony that has really been used by the learned Sessions Judge to come to conclusion in favour of the prosecution. 21. The evidence of PWs. 1 and 2 show that the deceased had suffered injuries at some place between the toddy shop of the appellant and the shop of PW.2. When that injury was suffered by the deceased, the appellant was certainly standing near the deceased. He was holding M.O.1 knife in his possession. He was hurling abuses and threats against the deceased. This part of the testimony of PWs.1 and 2 is very eminently acceptable and is in inconformity with the earlier statements made by them before the police. This can be identified by the absence of any specific contradictions marked Crl.Appeal No.1130 of 2007 16 on these aspects when PWs. 1 and 2 were cross examined. We find no reason for PWs. 1 and 2 to advance any incorrect version on these crucial aspects. It is true that more witnesses have not been cited by the prosecution. The evidence indicates the probability of the presence of other witnesses. But in the light of the evidence of PWs. 1 and 2, the prosecution did not think it necessary to cite or examine other witnesses. We cannot certainly find fault with the prosecution for adopting such a course in the facts and circumstances of this case. The motive on the part of the appellant against the deceased on account of events that transpired earlier is proved by the evidence of PWs. 3 and 4. The fact that PWs. 1 and 2 had seen the deceased with injuries and the appellant near him with M.O.1 is also proved. PWs. 1 and 2 have eaten their words and have not supported the evidence about infliction of injury on the deceased by the appellant. It is significant that they who were willing to oblige the appellant were not able to assert that the deceased had suffered injuries at the hands of any other person. In these circumstances, we find that the evidence of PWs. 1 and 2 - that Crl.Appeal No.1130 of 2007 17 is what survives in the evidence of PWs. 1 and 2 as acceptable and convincing can safely be reckoned as formidable circumstances against the appellant. The court below had done precisely that. 22. The prosecution wanted to rely on the evidence of PW.13 about the recovery of M.O.1 knife from its place of concealment under Ext.P6 seizure mahazar which is attested by PW.6. The evidence suggests that on 1.1.1999 when the appellant was arrested by PW.13 and interrogated, he made a confession statement in which he furnished information to PW.13 about the concealment of M.O.1. M.O.1 was discovered and seized. We find no reason to doubt or suspect the version of PW.13. The evidence of PW.6 and the contents of contemporaneous Ext.P6 seizure mahazar eminently supports the evidence of PW.13. We are conscious of and have been taken through the prevarication by PW.6 about the precise date on which the appellant was arrested and seizure was effected. The cross examination of PW.6 reveals his incompetence to swear by the dates. The date given in Ext.P6, the signature in Crl.Appeal No.1130 of 2007 18 which it is admitted by PW.6 would be a safe indication to draw inspiration for the oral evidence of PW.13 that the appellant was arrested on 1.1.1999. The evidence of recovery of M.O.1 on the basis of information furnished under Section 27 of the Evidence Act eminently supports the evidence spoken to by PWs. 1 and 2 about the circumstances of the appellant being present with M.O.1 near the deceased when the deceased was found with injuries near the shop of PW.2. 23. The learned counsel for the appellant makes much of the inability of the prosecution to show that there were blood stains on M.O.1. We do not attach much significance to this as it is indicated from the evidence that M.O.1 knife must have been thrown into water immediately after the commission of the crime. The absence of blood marks on M.O.1 cannot clinch the issue in these circumstances. 24. Why should PWs. 1 and 2 tender evidence to help the appellant who was in custody all through and who was not even able to engage a counsel of his own, queries the learned counsel for the appellant. Crl.Appeal No.1130 of 2007 19 25. We do not find much significance to that query as it is clear a day light to us from the evidence of PWs. 1 and 2 that they did want to help the appellant by blacking out one part of the testimony and advancing a version which apparently is against the appellant and in favour of the prosecution. The cleverness and ingenuity of the hostile witnesses cannot deliver any advantage to the appellant. PWs. 1 and 2, we are convinced did not went to hurt the interests of the appellant. We assume that the passage of a long period of time induced indulgence and misplaced sympathy in the minds of PWs. 1 and 2 in favour of the appellant. They appear to have pressed into service borrowed ingenuity to make it appear that they were not arrogantly turning hostile the truth. By offering new evidence in the form of a new invented version of a dying declaration, which no Court could have safely accepted, they were evidently attempting to take the system for a ride. Their hostility cannot be permitted to deliver any advantage ipso facto to the appellant. 26. It follows from the above discussions that we Crl.Appeal No.1130 of 2007 20 concur with the conclusion of the court below that though the prosecution has not been able to establish its initial case and though the version of hostile PWs.1 and 2 to render assistance to the prosecution by advancing a theory of dying declaration made by the deceased to them is found to be unconvincing, the other circumstances available is sufficient to come to a safe conclusion about the