Vijay kumar Vs. State of Kerala  INSC 100 (24 February 1993)
A.S. (J) Anand, A.S. (J) Singh N.P. (J)
1993 AIR 2641 1994 SCC Supl. (2) 156 JT 1993 Supl. 502
an occurrence which took place on May 4, 1981 at about 10.30 p.m., the
appellants were arrayed by the police and put up for trial in Sessions Case No.
97 of 1981 for offences under Sections 302, 452 and 34 Indian Penal Code.
that occurrence, the appellants were alleged by the prosecution to have
trespassed into the house of Chandran at Muttada and while appellant 1
inflicted chop wounds on the hands and left leg of Chandran with a chopper,
appellant 2 had flashed a torchlight thus aiding the first appellant while the
third appellant stood guard at the entrance of the house with an iron rod. The
deceased Chandran, after the receipt of injuries, was removed to the hospital
by his 157 brother PW 1 in the taxi of PW 14 Gopakumar. Chandran succumbed to
the injuries after being admitted in Ward No. 5 of the hospital during the
night. The learned Sessions Judge after appraisal of the evidence and
consideration of the material on the record, acquitted the appellants of all
the charges by its judgment dated June 25, 1982. On an appeal by the State to the
High Court, the judgment of acquittal was set aside and the appellants were
High Court convicted them for an offence under Section 304 Part 1 and sentenced
each one of the appellants to rigorous imprisonment for a term of ten years.
They were also convicted for an offence under Section 450 IPC and sentenced to
suffer rigorous imprisonment for a period of one year each. Both these
sentences were, however, directed to run concurrently. The appellants are in
appeal before us.
trial court found that the evidence with regard to the lodging of the first
information report both as regards the time and place was shrouded in mystery.
After analysing the evidence, the trial court observed:
15 was the then Head Constable of the Peroorkada Police Station. It was he who
recorded Ext. P-1 F.I. Statement of PW 1 and registered the case. He would
swear that on May 5,
1981 at 2.30 a.m. he received a phone message from the Sub-Inspector.
Immediately he went to the Medical College Police Station.
reaching the Police Station, he came to understand that a person with cut
injuries was brought from Muttada and that he died at 3 p.m. in the hospital and that his body had been removed to the
mortuary. Then he proceeded to the mortuary where he saw PW 1 and recorded Ex.
P-1 F.I. Statement. After recording Ex. P-1, he returned to the Police Station
and registered the case after preparing Ex. P-9 FIR. It is seen from Ex. P-9
that PW 15 has recorded the full details about the incident and the names of
the accused as also the nature of the injury sustained by Chandran. According
to PW 15, all these details were furnished by the Sub- Inspector of Police over
the phone. But when the Sub-Inspector was examined as PW 16 he would say that
he did not give any such. information to PW 15. It still remains a mystery as
to who furnished these details to PW 15. These facts and circumstances show
that the prosecution is suppressing some material facts from the court and the
only possible inference is that the incident would not have happened in the
manner alleged by the prosecution. PW 17 is the investigating officer."
After having doubted the manner in which and the place at which the first
information statement was made, the trial court also dealt with the evidence of
PW 1 and commented upon the circumstances emerging from his evidence which give
a lie to the prosecution version with regard to the recording of the first
information statement, in the hospital at the instance of PW 1, the brother of
the deceased. The trial court noticed :
would also say that by about 3 o'clock,
immediately before the death of Chandran, a head constable came there. At that
time Chandran was lying in Ward No. 5. PW 1 told the head constable about the
incident and the latter reduced the same to writing. PW 1 proved Ex. P-1 as the
statement so recorded.
leading question put by the Addl. Public Prosecutor, PW 1 answered that he gave
Ex. P- 1 F.I. Statement while Chandran's body was lying in the mortuary. In his
cross- examination he would say that when the police came to the hospital, a mahazar
was prepared on the body of Chandran. When he was asked whether his statement
was recorded after the 158 preparation of the said mahazar, he would say that
his statement was recorded only on the next day after the dead body was brought
home and that the said statement is Ext. P-1.
version of PW 1 is contrary to the prosecution case and against his own earlier
version. Again PW 1 would say that he saw the police for the first time only on
the next day at 10.30
a.m. near the
mortuary. This also is against his own version given in his
examination-in-chief. In the next sentence PW 1 would say that at 3 a.m. he saw a head constable attached to the Peroorkada Police
Station in Ward No. 5 near the bed of Chandran. He is definite that he did not
do anything except helping them while they were in the mortuary. He would
categorically state that even though he mentioned to the head constable about
the incident, he did not do anything except listening to it. According to him,
his house as well as Chandran's house are facing towards east which is also
against the prosecution case. From a reading of his testimony it is not
possible to find that Ext. P- 1 F.I. Statement was recorded by PW 15 at the Medical College Hospital on the night of May 4, 1981 itself or that PW 1 was able to see and identify the
accused at the scene of occurrence." The indictments by the trial court
were severe on the bona fides of the investigation and the trial court was
justified in coming to the conclusion that the prosecution had suppressed the
manner in which the first information statement was recorded and therefore the
possibility that it had been recorded after due deliberation could not be ruled
out. The circumstances emerging from the discussion of the trial court would
show that the discrepancies and the contradictions amongst the evidence of the
witness in the matter of recording of the first information report were of a
serious nature and discredited the prosecution case and cast serious doubts on
the conduct of the investigation.
learned Judges of the High Court, however, dealt with this aspect of the matter
in the following manner:
fact that there is some minor discrepancy as regards the time and place at
which the FIR was lodged is of no significance. After all the witness deposed
in court more than a year later. The FIS contains the relevant details fully
corroborating on the material particulars what the witnesses spoke. The names
of the accused are mentioned in the FIS.
contains a clear and cogent narrative of the incident. It is not correct to
disbelieve the prosecution case because of such minor insignificant
are unable to agree and appreciate the approach of the High Court in treating
the discrepancies as insignificant or of no consequence. Since, the High Court
was upsetting the order of an acquittal, it was expected that it would furnish
reasons to show as to how the findings recorded by the trial court were either
perverse or unreasonable and not sustainable on the basis of the material on
the record. No such attempt was made by the High Court. The opinion of the High
Court that the discrepancy with regard to the time of visit of the Police
Officer or the place where FIS was recorded was of no significance or
consequence does not appear to us to be correct. The very fact that PW 15 had
stated that whatever he had recorded in the first information report as regards
the occurrence was on the basis of the information given to him by the Sub Inspector
and not on the information allegedly furnished to him by PW 1, would go to show
that reliance could not be placed on the said first information statement.
very basis of the prosecution case, therefore, had been rendered 159 doubtful
and on account of the tainted nature of the investigation, it would not be safe
to rely upon the evidence led by the prosecution, which the trial court found
as not inspiring confidence. We are, therefore, of the view that the High Court
was not justified in setting aside the well considered judgment of the Sessions
Court and reversing the order of acquittal ignoring serious flaws in the
prosecution case. The appeal, therefore, succeeds and is allowed. The
conviction and sentence recorded by the High Court against the appellants are
set aside and they are hereby acquitted. Their bail bonds shall stand
the view that we have taken, we need not express any opinion on the question
whether the High Court was justified in sentencing the appellants to a term of
imprisonment, after recording their conviction, without affording them an
opportunity of hearing on the question of sentence as envisaged by Section 235
of Criminal Procedure Code.