IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 10TH OCTOBER 2007 / 18TH ASWINA 1929 CRL.A.No. 625 of 2004 ------------------------------- (AGAINST THE ORDER DT. 3/3/04 IN SC NO. 93/2001 OF THE FILES OF ADDL. SESSIONS COURT, MANJERI) APPELLANT: IST ACCUSED. -------------------------------------- ALAVI, S/O.KUNJAHAMMED KURIKKAL, ORUVAMPURATH HOUSE, KILLIKODE, THUVOOR. BY ADV. SRI.P.SAMSUDIN RESPONDENTS: COMPLAINANT. -------------------------------------------- STATE OF EKRALA, REP. BY THE CIRCLE INSPECTOR OF POLICE, PANDIKKAD THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.C. SANTHOSH KUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/09/2007, THE COURT ON 10/10/2007 DELIVERED THE FOLLOWING: J.B. KOSHY & K.HEMA, JJ. ---------------------------- Crl. Appeal No. 625 of 2004 ---------------------------- Dated this the 10th day of October, 2007 Judgment Koshy,J. Accused, two in number, was charge-sheeted for offence punishable under section 302 and 189 read with section 34 of the Indian Penal Code for alleging murdering one Aleema, sister of the first accused. Second accused is the father's younger brother of A1 and deceased. PW1 Amina is the sister of A1. PW11 Aisha is another sister of A1 and deceased. A1 had three other brothers also. Deceased, PW1 and accused were living in the tharawad house with the mother. Motive for the crime, alleged by the prosecution, is gifting of some landed property to the deceased by her father. According to the prosecution, father had assigned 55 cents of property to Aleema to the consternation of Alavi and his three brothers. They had made every attempt to thwart the endeavour of the old man to assign property to the daughters, but, could not succeed. Alavi had strongly resented the act of his father giving property to Aleema Crl. Appeal No. 625/2004 2 and he had declared that Aleema would not be permitted to enjoy her property. On14.2.1999 Aleema brought Firoz (PW10) and Subramanian (PW2), her co-workers in a brick kiln, for doing some work in the property assigned to her. In the morning, A1 Alavi and A2 Hamza Kurikkal came and made an unsuccessful attempt to disrupt the work done by Firoz and Subramanian. At about 4.00 p.m., Alavi and Hamza Kurikkal came there and had a wordy altercation with Aleema who was supervising the work. As instigated by Hamza Kurikkal, Alavi came near Aleema, hold her neck, whipped up a knife and stabbed her on the neck. Thereafter, Alavi felled Aleema down, pinned her to the ground pressing his right knee on her chest. Alavi brandished the knife towards Firoz and Subramanian and threatened them to cause their death if they refused to leave the place. They scampered and Alavi slit his sister's throat with the knife. Ameena (PW1) who came out of the house for ablutions for the prayer saw the incident. She went to the police station situated nearby and gave Ext.P1 F.I. statement. Consequently, Ext.P1 (a) F.I.R. was registered. PW15 Circle Inspector of Police conducted inquest on the body, seized the material objects including MO1 knife, searched the house of Crl. Appeal No. 625/2004 3 accused and recovered the blood stained cloths (MOs 2 and 3) of A1, arrested the accused, questioned the witnesses and recorded their statements. PW16 Circle Inspector of Police completed investigation and filed final report. 2. PW9 doctor conducted autopsy on the body of Aleema on 15.2.1999 and issued Ext.P10 postmortem certificate. He has noted the following injuries in Ext.P10: "1. Incised wound 3.8 x 0.3 c.m. back root of neck slightly oblique upper inner and 1 c.m. left of mid line. 1 c.m. behind the upper inner end on the lower margin. Another incised wound extended downwards and inwards 2 x 0.3 c.m. x 4.5 c.m. muscle plane for 4 c.m. Both ends sharp. 2. Incised wound 5.2 x 0.6 c.m. right side of face, superficial both and sharp on the jaw border right side, back end on the angle of jaw (bevelled downwards). 3. Incised wound 7 x 1 to 2 c.m. right side of neck back end 5.5 c.m. below ear, lobule, front end 1 c.m. below chin 0.5 c.m.right to mid line stissue deep. 4. Incised wound 5.5 x 0.1 x 0.5 c.m. right side of neck oblique upper end 0.8 c.m. below middle of injury No.2. The upper half was superficial and lower half 1 c.m. deep. 5. Incised wound 12 x 5 c.m. front and sides of neck both ends sharp cut left end 1 c.m. below ear lobule and the upper margin on the jaw border with bewelling downwards. Right end 10.5 c.m. below ear lobule. On Crl. Appeal No. 625/2004 4 the right side, 2 c.m. below the upper margin, there was a side cut for 1 c.m. and on the left side 1.5 c.m. below the upper margin had a side cut for 1 c.m. 6. Incised wound 9 x 1 c.m. mid line on the root of neck. 7. Superficial incised wound 2 x 1 c.m. right side of top of chest 8 c.m. outer to mid line. 8. Superficial incised wound 1 x 0.5 c.m. x 1 c.m. outer to injury No.7 in the same line (top of chest). 9. Four contused abrasion 0.5 x 0.5, 0.8 x 0.5, 0.8 x 0.8 c.m. and 1 x 0.8 c.m. from above downwards at a distance of 0.3 c.m., lower one 2 c.m. above injury No.8 on the right side of chest. 10. Abraded contusion 6 x 5 c.m. on the shoulder front and outer aspect. 11. Superficial linear abrasion 12 c.m. oblique front of upper arm to forearm outer lower end 18 c.m., above wrist. On the outer margin. 12. Incised wound 1.5 x 0.5 x 0.5 c.m. middle of front of terminal phalanx right ring finger. 13. Incised wound 1 x 0.5 x 0.5 c.m. at the distal interphalangeal joint of middle finger right side. 14. Incised wound 0.5 x 0.3 x 0.3 c.m. middle front of terminal phalanx of index finger right. 15. Incised wound 2 x 0.4 x 0.4 c.m. inner aspect of middle of right thumb. Crl. Appeal No. 625/2004 5 16. Incised wound 1 x 0.5 x 0.5 c.m. in the wep space of index and thumb 4 c.m. below root of index finger right side." Underneath the external injuries 5 and 6 mentioned in the postmortem certificate, trachea, oesophagus muscles and vessels were cut and retracted. The cartilage between cervical vertebrae 3rd. 4th showed a cut injury for 1 c.m. The opinion of the doctor as to the cause of death is that the deceased died due to cut injury to the neck. When he was in the box, he was shown the MO1 knife. He stated that the injuries found on the person of the deceased could be caused with a weapon like mO1. The testimony of PW9 coupled with the postmortem certificate would clearly establish that the deceased died due to cut injury to the neck. 3. Prosecution examined PW1, sister of the deceased, who gave Ext.P1 first information statement, PWs 2 and 10, colleagues, employed by the deceased in her property given by her father, as occurrence witnesses, but, all those witnesses stated that they have not seen the actual murder. The court relied on circumstantial evidence coupled with contradicted parts of depositions and evidence given by PWs 1, 2 and 10 though declared Crl. Appeal No. 625/2004 6 hostile. According to the trial court, the following facts are established by evidence: "1. The brothers of Aleema had made attempts to thwart the idea of giving properties to the sisters. Ext.P3 would clearly establish that. 2. That A1 was nurturing ill-will against Aleema because of the assignment of property in her favour. The evidence of PW11, another sister establishes that. 3. The brothers could not countenance assignment of property to the deceased. PWs 6 and 7 village officers could not complete the work of measurement because of the stiff opposition of the brothers on the previous day. 4. PWs 2 and 10 admitted their presence at the site on the fateful day. PW2 testified that without completing the work he returned. PW10 testified that he saw A1 felling Aleema on the ground. A1 whipped up a knife threatened him and PW2 with dire consequences and they scampered. PW10 had heard agonised cry from behind while they were fleeing. 5. The weapon used to slit the threat of Aleema was recovered from the place of occurrence. 6. PW10 identified all material objects including the knife and wearing apparels of A1. 7. The Investigating officer recovered the blood stained both towel from the parapet of the well. Crl. Appeal No. 625/2004 7 8. The Investigating officer recovered blood stained shirt and lunki of A1 from the house." 4. According to the learned Sessions Judge, the above factors point out to the guilt of the first accused and first accused (appellant) alone. There was no evidence regarding the role of second accused. Before analysing the evidence adduced in the case, we may refer to the defence adduced by the accused. After the close of prosecution evidence, the accused were questioned under section 313 Cr. P.C. He denied having committed any offence. A1 filed a statement alleging that he was living with his mother and the deceased in the same house, that he was not nurturing ill-will against the deceased, that he is totally innocent, that he is unaware as to what happened on the fateful day and that he has no role in it. The shirt, lunki and both towel marked in this case do not belong to him. He has nothing to do with the knife produced by the prosecution. The witnesses Subramanian and Firoz are friends of the deceased and they have perjured in this court. The charge sheet was filed without proper investigation and without apprehending the real accused. Crl. Appeal No. 625/2004 8 5. Considering the inquest report, injuries noticed in Ext.P10 postmortem certificate and deposition of PW9 doctor, it is not disputed that Aleema was murdered and cut injury on the neck was fatal. It is a clear case of homicide. PW9 doctor also deposed that antemortem injuries found in the body can be caused with a weapon like MO1 knife. Even appellant hasno case that it is not a case of homicide. The dispute is who caused the murder? 6. In every crime committed, there will be a motive for the crime. But, it is a difficult task for the prosecution to prove motive with precision. When there is direct evidence, proof of motive may become irrelevant. Here, since the alleged occurrence witnesses turned hostile, proof of motive is very important. Even in circumstantial evidence, failure of proving motive alone is not fatal, if there were all sufficient circumstantial evidence to prove the guilt of the accused beyond reasonable doubt. But, to kill a sister by the brother is not a simple thing and there will be adequate motive even though existence of a strong motive by itself is enough to convict the accused as guilty (See: State of MP and others v. Paltan Mallah and others - ((2005 (3) Crl. Appeal No. 625/2004 9 SCC 169 para 9). Now, in this case, PW1, sister of the accused and deceased, who is not living in the tharawad has deposed that with regard to the assignment of the property in favour of Aleema by her father there was dispute between A1 and the deceased. A1 used to quarrel with the deceased in this regard. She has admitted that she had filed Ext.P3 petition before the police. The deceased and PW1 are also signatories to the petition. She testified that the police called the brothers and sisters to the police station to square up the matter. PW6 Vasudevan, Special Village Officer, PW7 Gopinathan, Additional Village Officer and PW8 Prabhakaran, Village Officer, Thuvoor have also given evidence with regard to the dispute between the deceased and her brothers. PW6 testified that Aleema had made an application for a site plan for securing a bank loan. PWs.6 and 7 went to the property on 13.2.1999, that is, the previous day of the incident, for measuring out the two plots given to Aleema by her father. However they could not complete measurements because the brothers of Aleema obstructed it. But, they stated that objection was made by all brothers and not the accused alone. PW8 Village Officer issued Ext.P9 to show that Aleema was having property as Crl. Appeal No. 625/2004 10 deposed by the prosecution. But, evidence of PW11 is practically unchallenged and there was no serious cross examination. Evidence of PW11 also proved that A1 used to quarrel with the deceased regarding the property. We are of the opinion that motive is proved. 7. With regard to incident, prosecution examined PWs.1, 2 and 10 as occurrence witnesses. But, all of them became hostile. But deposition of a witness who was declared hostile and departure from his previous statement need not be discarded as such. When a prosecution witness depart from the previous statement, prosecution can be allowed to put questions to accused. Section 154 speaks of permitting a party to put to his own witness 'questions which might be put in cross- examination'. It is not necessarily tantamount to 'cross-examining' the witness. 'Cross-examination', strictly speaking means cross-examination by the adverse party as distinct from the party calling the witness. (Section 137, Evidence Act). That is why section 154 uses the phrase 'put any questions to him which might be put in cross-examination by the adverse party'. Therefore, neither the party calling him, nor the adverse party is, in law, precluded from relying on any part of Crl. Appeal No. 625/2004 11 the statement of such a witness. It was held in in Bhe Ram v. State of Haryana (AIR 1980 SC 957) that the maxim 'Falsus in Uno Falsus in Omnibus' does not apply to criminal case and it is the duty of the court to separate the grain from the chaff instead of rejecting the same on the ground of contradiction. In Kalegura Padma Rao and another v. State of A.P. (2007 AIR SCW 1447) it was observed as follows at paragraph 13 and 14: "13. To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana ((2002) 3 SCC 76). Stress was laid by the accused-appellants on the non- acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of 'falsus in uno falsus in omnibus' (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim 'falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar. The maxim 'falsus in uno falsus in Crl. Appeal No. 625/2004 12 omnibus' has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but, it is not what may be called 'a mandatory rule of evidence'. (See: Nisar Ali v. The State of UP (AIR 1957 SC 366). 14. The above proposition was elaborately discussed in Sucha Singh and another v. State of Punjab (2003 (6) JT SC 348) and Israr v. State of UP ((2005) 9 SCC 616)." In Narayan Nathu Naik v. Maharashtra State (AIR 1971 SC 1656), Apex Court relied on the evidence of the prosecution witnesses who had partly resiled from their previous statements, to the extent they supported the prosecution, for corroborating the other witnesses. In Bhagwan Singh v. State of Haryana (AIR 1976 SC 202), a three member of the Apex Court relied on the hostile witness. Contention of the accused and answers given by the Apex Court are contained in paragraphs 7 and 8 of the judgment which is as follows: 7. In this case, the Public Prosecutor obtained permission from the Court to cross- examine P.W.Jagat Singh since he did not specifically refer to the two co-accused in his examination-in-chief. Mr.Debabrata Mukherjee, on behalf of the appellant, Crl. Appeal No. 625/2004 13 submits that since the prosecution case rests principally upon Jagat Singh's testimony, the whole edifice is destroyed on that witness being declared hostile and the appellant is entitled to an acquittal. 8. We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross-examine the witness under Section 154 of the Evidence Act. But the fact that the court gave permission to the Prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence." In Sat Paul v. Delhi Administration (AIR 1976 SC 294), a two member bench of the Hon'ble Apex Court summarised the legal points as follows: "51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after Crl. Appeal No. 625/2004 14 reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit- worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto." Relying on the decision of the Apex Court in State of UP v. Ramesh Prasad Misra and another ((1996) 10 SCC 360), the Apex Court in Gurpreet Sing v. State of Haryana (AIR 2002 SC 3217) held as follows: "20. Incidentally, it is now well- settled that in the event of a portion of evidence not being consistent with the statements given under 161 and the witness stands declared hostile that does not, however, mean and imply total rejection of the evidence. The portion which stands in favour of the prosecution or the accused may be accepted but the same shall be subjected to close scrutiny. It is in this context the observations of this Court in State of UP v. Ramesh Prasad Midsra and another ((1996) 10 SCC 360) seem to be rather apposite and the same is thus set out hereinbelow. "7. The question is whether the first respondent was present at the time of death or was away in the village of DW1, his brother-in-law. It is rather most unfortunate that these witnesses, one of whom was an advocate, having given the statements about the facts within there special knowledge, under section 161 recorded Crl. Appeal No. 625/2004 15 during investigation, have resiled from correctness of the versions in the statements. They have not given any reason as to why the investigating officer could record statements contrary to what they had disclosed. It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but, it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. One clinching circumstance, viz., that PW2 and PW6 had heard some quarrels in the house of the respondents and the deceased was crying out, is not on record as substantive evidence. PW2 and PW6 had n regard for truth; they fabricated the evidence in their cross- examination to help the accused which did not find place in their sectin161 statements that they had seen one man of white complexion and aged between 30 to 35 years, going to the house of the deceased on the fateful night and leaving the house at 8.00 a.m. on the next day." Similar view was taken in Gura Singh v. State of Rajasthan ((2001) 2 SCC 205). 8. It is true that deposition of hostile witness who change his version from the original version has to be viewed with suspicion as it can be said that such witness has no respect for truth. But, in some cases, discrepancy with the earlier statement may be Crl. Appeal No. 625/2004 16 trifle or not serious. His version may not be totally unreliable and it may be partially reliable. It is for the court to find out the truth and parts of evidence of hostile witnesses also can be relied on, if it is corroborated by other evidence or it appears to the court that it is believable. 9. Now, we will come to the evidence of PW1. PW1 gave Ext.P1 first information statement. In the first information statement, PW1 has stated that her elder sister accused her mother and herself who were residing in the tharawad house. Deceased sister was married four times. She divorced and she is residing in the tharawad house with them. Her father's property was given on partition between her four brothers and elder sister deceased Aleema. Aleema was given 55 cents of property. On 14.2.1999, two persons came from the brick company where Aleema was working for doing some work in that property. Her brother, accused, had got enmity towards Aleema because father gave her 55 cents of property and accused used to say that he will not allow her to enjoy the property. While she was praying, she heard a sound and when she looked into, she saw that Aleema was being killed by the accused by cutting in the Crl. Appeal No. 625/2004 17 neck. According to her, the incident occurred on 14.2.1999 at about 4.00 p.m. First information statement is seen given at 6.30 p.m. on the same day without any delay and reached the Magistrate's Court on the next day. She was examined as an eye witness, but, in court, she stated that she has not seen the incident. She stated that she saw the deceased lying with throat slit, but, she cannot say how it happened. She was declared hostile. She admitted her signature in Ext.P1 and stated that she has written in Ext.P1 that the statement was read by her 'മഴ വയച ക ട ' in her own hand and signed the same, but, according to her what is written in Ext.P1 statement is not what is told by her. Police had