Kochu Maitheen
Kannu Salim Vs. State of Kerala [1998] INSC 149 (5 March 1998)
G.T.
Nanavati, V.N. Khare Nanavati, J.
ACT:
HEAD NOTE:
The
appellant is challenging in this appeal his conviction by the High Court under
Section 302 IPC. He was tried alongwith his brother Jalal for committing the
murder of their cousin- Ummer in the Sessions Case No. 100/86 in the Court of
Sessions Judge, Trivendrum but was acquitted on the ground that the prosecution
had failed to prove its case.
In
order to prove its case, the prosecution had examined PW 2 - Surenderan Nair
who stated that he was accompanying the deceased when the incident took place
and that he had seen the assault made on the deceased by both the accused. His
evidence was sought to be supported by the evidence of PWs 3 and 4 and also by PWs
7 and 8. The prosecution had also relied upon the recovery of MO3 - knife at
the instance of the appellant. The trial court disbelieved the evidence of PW 2
as the supporting evidence was not found to be reliable and his own version was
found inconsistent with the medical evidence. The trial court also held that as
PW 2 had failed to explain all the injuries that were found on the person o the
deceased it created a doubt regarding his having seen the incident. Evidence of
PW 7 and PW 8 was discarded by the trial court as it was found to be
inconsistent inter se. The trial court did not place any reliance on PW 1 who
had not only not seen the incident but had denied to have male some statements
contained in the FIR lodged by him. The evidence of recover of MO3 - knife was
not believed because the witness who had attested the Mahazar, Ex. p. 10, was
not an independent witness and the find of human blood on that knife after 16
days was considered doubtful.
The
High Court did not place any reliance upon the evidence of PWS 1,6,7 and 8. It
did not believe the evidence of PWs 1,7 and 8 as regards the oral dying
declaration stated to have been made before them by the deceased. It, however,
held that the FIR- Ex. P.1 given by PW 1 could be relied upon and as it
referred to the presence of PW 2 at the time of the incident and to that extend
it supported the evidence of PW 2. It also held that PW 2's presence deserved
to be believed as it was supported by evidence of PW 4. It also believed the
evidence regarding recovery of MO3- Knife as human blood was found on it.
Mr.
U.R. Lalit, learned senior counsel for the appellant, submitted that the High
Court has committed a grave error in placing reliance upon the evidence of PW 2
on the ground that the FIR - Ex. P. 1 also supported his version. he further
submitted that the High Court has also overlooked certain aspects while
considering the evidence of PW 2 and the reasons given for accepting his
evidence are not proper. he also submitted that the recovery evidence ought not
to have been believed as the attesting witness was not an independent and
reliable person.
We
find considerable substance in the contentions raised by Mr. Lalit. It is
difficult to appreciate how the High Court could consider FIR- Ex.P. 1 as
correct when PW 1 himself stated that certain statements contained in it are
not correct and PW 1 himself has not been believed. It is really doubtful
whether the FIR was recorded at 9.45 p.m. on 1/12/85 as stated therein. The evidence discloses
that the investigation in this case had started after 3.00 p.m. on 2/12/85. If
really the FIR was recorded at 9.45 p.m. then
the investigation would have started much earlier and statement of PW 2 who was
stated to be the eye witness would have been recorded after 3.00 p.m. on 2/12/85. The
High court has not considered this aspect.
The
High Court has also not considered another important aspect, viz. the conduct
of PW 2. According to PW 2, the deceases came to his shop requested him to
close it and then both of them went to the shop of PW 3 to purchase plantains
and thereafter both of them were walking on the road and at that time the
incident took place. He has further stated that thereafter he went near the
intersection of the road and shouted that Salim and Jalal had given knife blows
to Ummer. If his relations with Ummer were so friendly as stated by him then in
that case he would not have left Ummer like that and gone near the junction
shouting that Salim and Jalal had given knife blows to him but would have
really taken him to his aunt's place which was near by or to a hospital for
treatment or gone to the police station for lodging a complaint. he did neither
of these things and just disappeared till next day evening. This conduct has to
be regarded as inconsistent with his being with the deceased at the time of
incident. PW 3 from whose shop the deceased and PW 2 are stated to have
purchased plantains did not support PW 2. According to PW 2, he had informed PWs
7 and 8 about the incident. But their evidence has been found to be
inconsistent both by the trial court and the High Court.
That
would mean that he had not really informed those witnesses. All this creates a
serious doubt regarding his having seen the incident.
The
High Court also committed an error in relying upon the evidence regarding
discovery of MO3 - knife. It appears from the evidence of the attesting witness
- PW 16 that he was a man of the police and not an independent person. if he
was thus a selected person, it becomes difficult to appreciate how the evidence
of the Investigation Officer - PW 20 could have made the discovery evidence
reliable. The trial court has rightly pointed out that no independent person of
the locality was associated with the preparation of Mahazar - Ex. P. 10 even
though as admitted by PW 16 himself, there were number of houses near the place
from where the knife was alleged to have been discovered.
Having
scrutinised the evidence, we are of the view that the High Court was not right
in setting aside the acquittal of the appellant and convicting him under
Section 302 IPC. We, therefore, allow this appeal. The order of conviction and
sentence passed against him is set aside and he is acquitted of the charge levelled
against him. His bail bonds are ordered to be cancelled.
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