& Ors Vs. State of Kerala & Anr  INSC 169 (18 March 1998)
Mukherjee, Syed Shah Mohammed Quadri M. K. Mukherjee, J.
@ Vakkachan, Rajeev and Joshy, the three appellants before us (arrayed as A1 to
A3, respectively in the trial Court and hereinafter so referred to) along with
four others, (A4 to A7) were put up for trial before an Additional Sessions
Judge, Kottayam to answer charges under Section 143, 147, 148, 449, and 302
read with Section 149 I.P.C. The gravamina of the charges were that on May 28, 1990 at or about 11 P.M. they formed themselves into an unlawful assembly
with the common object of committing the murder of Sasidharan Nair and in
prosecution thereof they trespassed into his house and hacked him to death. The
trial ended in acquittal of all of them; and aggrieved thereby the
respondent-State of Kerala filed an appeal and Smt. Sarojini Amma (mother of
the deceased) filed a revision petition before the High Court. The High Court
also issued a suo motu Rule calling upon the seven acquitted person to show
cause why their acquittal persons to show cause why their acquittal should not
be set aside. All the matters were heard together by the High Court; and by a
common judgment it set aside the acquittal of the three appellants and
convicted them under Sections 302, real with Section 34, and 449 I.P.C, while
affirming the acquittal of others. For the above convictions the High Court
sentenced each of them to suffer imprisonment for life and rigorous imprisonment
for five years respectively, with a direction that the sentences shall run
concurrently. The above judgment of the High Court is under challenge in these
appeals preferred by the appellants under Section 2 of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act read with Section 379 Cr.P.C.
Briefly stated, the prosecution case is as under:-
The deceased Sasidharan Nair was a petty trader and lived in Pulickel of Pallikkathodu
Police Station. He was also a reporter for `Thaniniram' daily published from Kottayam.
On May 19, 1990 a new item appeared in the daily [Ext. P. 31 (a)] in which
serious imputations were made against high placed police officers of Kottayam
district and one Thadivakkan was a pimp and gunda and had great influence over
corrupt police officers to whom he supplied women and wine and under cover of
their protection carried on his immoral activities unabashedly in Palai town. Thadivakkan,
who was none other than A1, was upset and enraged by the above defamatory publication.
He, therefore, along with the other six accused person went to the house of the
deceased armed with deadly weapons to kill him on the fateful night.
three appellants entered into the room where the deceased was sleeping with his
wife (P.W.2) and child and started assaulting him. While A2 and A3 dealt blows
upon him with stick and iron rod, A1 stabbed him with a knife. On that very
night while on the way to the Medical College Hospital, Kottayam, he succumbed to his injuries.
P.W.1. (Ninan Varghese), a neighbour of the deceased, who had rushed to the
scene of offence on hearing the commotion, was told by the deceased that Urulikunnam
Vakkachan had stabbed him with knife. Next morning he went to Pallikkathodu
Police Station and gave a report of the incident (Ext. P.1) which was recorded
by P.W. 30 (Thomas), a Sub-Inspector of police; and thereupon a case was
registered against A1 and three unidentified persons. P.W.54 (M. Samuel),
Deputy Superintendent of Police, took up investigation and went to the Medical College Hospital where the dead body of Sasi was
lying. After holding inquest he sent the dead body to the Forensic Science
Department for post-mortem examination which was conducted by P.W.51 (Dr. Velayudhan).
P.W.54 then went to the house of the deceased and seized among other articles,
a knife (M.O.1), a blood smeared cross beam of bed stead (M.O.2), a show, a
blood stained lungi and some scalp hairs. He continued with the investigation
till May 31, 1990 and then entrusted it to P.W.52 (Abraham
Mathew), Circle Inspector of Pampadi, who seized a car bearing registration No.
KEK 3114 in which the accused had gone to commit the murder. Investigation was
again taken over by P.W.54 and he arrested A2 and A3. At the instance of A2 a
stick (M.O.3) was seized from a bamboo cluster on the side of the Pallikkathodu-Chengalam Road.
on he arrested A1 on June
7, 1990. On completion
of investigation P.W. 54 submitted charge sheet against the accused persons.
appellants pleaded not guilty to the charges levelled against them and
contended that they had been falsely implicated at the instance of the police.
A1, on being examined under Section 313 Cr. P.C., stated that P.W.50 (Sreekumar),
the driver of car No. KEK 3114, had made a false statement before the
Magistrate (recorded under Section 164 Cr. P.C.) due to threst by the police.
According to him prior to the examination of P.W.50 in Court his brother was
caught by the police at Thiruvalla with some ganja in his car and to get his
brother exonerated from that case he gave false evidence at the instance of
support of its case the prosecution examined 54 witnesses and the appellants
none. However, the appellants exhibited some documents in support of their defence.
give an ocular version of the incident the prosecution sought to rely upon the
evidence of P.Ws2 and 3, the wife and mother of the deceased respectively, both
of whom had during investigation claimed to have witnessed the entire incident.
P.W.2, however, did not support the prosecution case and was declared hostile.
She testified that she woke up from sleep on hearing noise and saw some persons
going away from their room after attacking her husband. In the next breath she
stated that she did not see the incident nor could she identify the intruders
as there was no light either in her room or in the neighbouring room where her
mother-in-law was sleeping.
P.W.3 (Sarojini Amma), however, fully supported the case of the prosecution.
P.W.3 stated that the deceased was her only son with whom she and her husband
were staying at the elevant time. On that fateful day her son came home around 9 P.M., had his food and went to sleep. She remained awake,
keeping a lamp burning in her room as was her wont.
time later she heard of people running. She then heard the screams of P.W.2 and
Sasi. She rushed towards his room with the lamp, and raising the curtain in
between their room saw three persons standing inside, one standing at the
doorstep and behind him two others who were flashing torches. Of the three who
were inside, two were seen beating her son on his head with stick and Iron rod.
She cried out and implored them not to kill him; and when he tried to get up
one of the assailants stabbed him with a knife on his right shoulder. Again he
tried to stab, but her son warded off the blow with his hand. Thereafter the
assailants escaped through the northern door. She heard P.W.2 to ask her
husband about the intruders and he named Urulikunnan Vakkachan. She and P.W.2
then cried aloud to alert the neighbours. Immediately, P.W.1 (Ninan), P.W.4 (Radhamoni),
P.W.6 (Joseph @ Ouseph), P.W.7 (Aravindakshan), P.W.8 (Moni), P.W.9 (James) and
P.W.10 (Ayyappan) and others rushed to the house. P.W.1 was heard to ask her
son whether he could identify the assailants. Again she heard him saying that
he was stabbed by Urulikunnan Vakkachan. Around 1.00 A.M. he was taken to the
Medical College Hospital in a vehicle and in the early morning she heard that
he died. She identified A1 as the person who had stabbed her son and A2 and A3
as those who assaulted him with stick and iron rod.
could not identify those outside the room, but said that there was sufficient
light in the room, shed by the lamp she held and by the torches the intruders
had, to identify the persons who hit and stabbed her son.
P.W.1, who, amongst the neighbours, came to the house of the deceased first on
hearing the cries, stated that he saw Sasi lying in a pool of blood. He,
however, did not support the version of P.W.3 that Sasi named one of the
assailants. On the contrary, he stated that he asked Sasi as to what happened
but he did not say anything. As regards lodging of the F.I.R (Ext.P.1) his
version was that he had gone to the police station on the following morning and
given an information about the incident but the Sub Inspector (P.W.30) did not
record it. According to him, he left the police station after half an hour. He,
however stated that in the afternoon he again went to the police station on
being summoned by P.W.30 and made to sign on a paper but he did not know what
was written therein. At that state of his deposition he was declared hostile
and cross- examined with reference to the F.I.R. he lodged, wherein he had
stated, inter alia, that Sasi told him that Irumbikkunnam Vakkachan stabbed him
with a knife and that he (Sasi) should be taken at once to hospital.
P.W.4, another neighbour, however, supported the prosecution case. She stated
that on hearing the screams and cries from the house of Sasi she rushed there
along with her husband (P.W.7). Reaching there she saw Sasi rolling in blood in
the western room of his house. Appaichettan (P.W.1) then asked sasi as to what
had happened to him. He said that Irumbikunnam Vakkachan stabbed him with
knife. According to her, at that time besides Sasi's wife and mother some neighbours
were near him. Then Sasi asked for water from his mother and told that he would
die and he should be taken to the hospital. She further stated that Sasi's
mother and wife told them that 3 persons had entered into the room and
assaulted Sasi, and another person had been showing light from the door. She
testified that when she reached there, she saw a burning kerosene lamp in the
hand of Sasi's mother and that in its light she saw Sasi lying bathed in blood.
other neighbours who were examined, namely, P.Ws.5 to 10 did not support the
prosecution case fully and hence some of them were declared hostile.
next witness whom the prosecution much relied upon is P.W.50, the driver of the
tourist car KEK 3114 in which, according to the prosecution, the accused
persons had gone to commit the murder. He stated in details as to what had
happened in the night of May
28, 1990. He said A1
hired the taxi to go to Pallikkathodu and, as arranged, at 7.00 P.M. A5 came
and got into it. He drove along the T.B. Road as directed by him and on the way from near the Star Studio, A6 and A7
boarded the car. Then he took it to Seema Lodge, from where A1 got in. The car
was taken to Paika side and on the way from near Kurusupally, A4 got into it.
The car again was taken to the house of A1, from where A2 and A3 also boarded.
8.00 p.m. they reached Pallikkathodu road
junction and then went to Kayyoori Junction, where all alighted. A1, A3 and A7
went towards the house of Kayyoori Appachan, but returned soon. They then
proceeded to Pallikkathodu and then to Chengalam road. After covering a
distance of 2 furlongs he stopped the car and except A6, all of them got out.
A1 and another were seen ging along a pathway but returned soon and got into
the car, which was later stopped at Sarvathra junction. All except A7 alighted
there. A2 and A3 had sticks (M.O.3 and M.O.4) and A4 and A5 had torches. A7
then asked him to drive the car around the place. After sometime he brought
back the vehicle to Sarvathra junction. A little later all the six persons who
had gone out returned and got into the car. According to him he felt the smell
of blood when they came. He then drove off the vehicle to Palal as directed by
them. On the way he switched on the light inside the car and saw stains of
blood on the shirt and dhothi of A1 and asked him what the matter was about,
when he replied that they had gone to thrash a person. He also heard some of
them saying that the knife and shoe were lost in the place.
he dropped them near their respective places. Before leaving A1 told him to
collect the fare from his shop the next day and not to disclose anything to
anyone. He, however, contacted P.W.31 (Suresh), his brother the same night and told
what had happened. On the following day they met Kunjumon, the owner of the
car, and as per his advice he and his brother went to the Pampadi Police
Station and disclosed the incident.
Next we come to the evidence of P.W.51, the doctor who held the post-mortem
examination and found 27 ante-mortem injuries on the person of Sasi. Of those
injuries, injury No.1 was a lacerated wound, scalp deep, over the right side of
the head. The underneath brain showed diffused subdural and subarachnoid haemorrhage
with signs of raised intracranial tension. The doctor opined that the injury
was sufficient in the ordinary course of nature to cause death and the deceased
died due to it. He further opined that the above injury could be caused by a
weapon like MO 3 (stick).
No. 6 and 12 were incised wounds: one on the right side of chest cutting
through the muscle plane downwards for a depth of 7 cms and the other on the
front of right upper arm. Those injuries, according to P.W.51, could be caused
by a weapon like MO.1 (knife). Injury Nos. 2 to 5, 9, 10, 16 to 20, 22, 25 and
27 were abrasions. The doctor said that some of the above injuries could be
caused by the tip of Mos. 3 and 4 (iron rod). Injury Nos. 7, 8 and 24 were
abraded contusions which could be caused by a weapon like MO. 3.
Nos. 11, 13, 14, 15, 23 and 26 were contusions and according to the doctor
those injuries could be caused by MO.4.
From the above narration of the prosecution case and the evidence adduced in
support thereof we find that the prosecution sought to prove the following
facts and circumstances to bring home the charges levelled against the accused:
six accused persons came to the house of the deceased on that fateful night and
three of them entered inside his bed room and assaulted him with different
weapons. Those three, who entered into the bed room and actually assaulted him,
were A1, A2 and A3, (the appellants before us);
deceased made an oral dying declaration before P.Ws.l3 and 4 to the effect that
A1 was amongst the assailants;
deceased died owing to the injuries sustained at the hands of the assailants;
appellants along with the other four accused persons came to the house of the
deceased in a car bearing registration No. KEK 3114 and after committing the
murder returned in the same vehicle; and
had a motive to commit the murder as the deceased had, ten days earlier,
reported about his nefarious activities in the `Thaniniram' daily.
From the record we notice that the defence did not dispute that the deceased
was found lying with a number of bleeding injuries on his person in the bed
room on his house in the night of May 28, 1990 and that on the way to the hospital
he succumbed to those injuries. Even otherwise, the evidence of P.W.1, P.W.4
and other neighbours unmistakably proves these facts. The nature of injuries
found on the person of the deceased and the opinion of P.W.51 as to the manner
how the injuries could be sustained also prove, in no uncertain terms, that
more that one person was responsible for the murder. In the context of the
above facts the trial Court proceeded to consider whether the deceased met with
his homicidal death in the manner alleged by the prosecution.
For that purpose the trial Court first took up for discussion the evidence of
P.W.3, the sole eye witness, and rejected her claim that she had seen the
incident by the light of the kerosene lamp which was burning in her room with
the following observations:
explanation offered by PW 3 for keeping the lighted lamp in her room instead of
keeping it in the other room is not reasonable or convincing. Therefore, the
version of PW3 that she had kept a lighted lamp in her room and it is with the
said lamp that she rushed to the scene of occurrence is improbable and
unbelievable. She might have lighted the lamp after hearing the hue and cry
from the nearby room and gone to the scene room with the lamp. But the
assailants would have escaped from there by the time. If that be so she might
not have the opportunity to see the incident or identify the assailants. Even
assuming that PW3 had gone to the scene with a kerosene lamp as spoken to by
her it cannot be said that she was able to see the incident or identify the
to her, the entire incident occurred just after her arrival at the scene of
lamp which is said to have been taken with PW3 is a small one without any
covering glass. If such a lamp is taken to a place of turmoil as in present
case one cannot keep it burning all the while as there is every possibility of
getting it extinguished within no time due to the movement of the lamp in the
hands of the person carrying it. To keep it burning till the end of the
incident one should keep it away from the scene of occurrence. In that case
there may not be sufficient light from the lamp to see the incident or identify
the culprits at the scene of occurrence. More over when there is attack with
deadly weapons such as knife, stick, iron rod etc. one may not dare to go near
instant case it is doubtful as to whether PW3 had gone to the scene at all. If
that be so, there would not have been sufficient light at the scene of
occurrence in which the incident could be seen by this witness especially when
she is of 62 years."
Then, assuming that she had seen the assault, the trial Court posed the
question whether she could identify the assailants and answered the same in the
negative with the following words:
P.W.3 had been holding the lamp at a little distance from the scene of
occurrence she would not have identified the accused especially when they are
utter strangers to her. It is to test the veracity of the witness on the
question of his capacity to identify unknown persons whom the witness may have
seen only once, that the test identification parade is insisted upon. It is to
be noted that to identify the accused during the examination of PW3 before this
Court she had to step down from the box and go near the dock with the
permission of the court. The difficulty shown by the witness in identifying in
the witness box would indicate that she is having defective vision either due
to old age or for some other reason. This witness has stated that no police
office had shown the accused to her at any time. At the same time she has
admitted to have seen the accused in the dock on the day previous to her
examination. It is therefore clear that she had the opportunity of seeing and
identifying the accused (At to A3) before they were identified in court. While
reminding the necessity of test identification parades in cases where the
accused are not known to the witnesses the Kerala (AIR 1979 SC 1127) observed
that where a witness identifies an accused who is not known to him in court for
the first time, his evidence is absolutely valueless unless there has been a
previous identification parade to test his power of observation. If no
identification parade is held then it will be wholly unsafe to rely on his hare
testimony regarding the identification of an accused for the first time in
Court. I am therefore of opinion that the evidence of PW 3 who claims to have
identified A1 to A3 in court for the first time is unreliable in the absence of
test identification parade."
The oral dying declaration of the deceased about which P.Ws.3 and 4 testified
was discarded by the trial Court as, according to it, the same was tainted with
infirmities and inherent improbabilities. In drawing the above interference it
observed that Ext.P.1 which was lodged by P.W.1 and wherein he had stated about
the above dying declaration was a suspicious document and, therefore, the story
of the dying declaration allegedly made in presence of P.Ws.1,3 and 4 was also
suspicious. The other reason for disbelieving the testimonies of P.Ws.3 and 4
in this regard was that the neighbours who accompanied P.W.4 to the house of
the deceased had categorically stated that the deceased did not say anything
when P.W.1 asked him about the incident and consequently they could not have
heard the deceased saying that he was stabbed by the appellant. The third and
the last reason to disbelieve the dying declaration was that P.W.3 did not
disclose about it to any of the persons who had assembled there.
The trial Court then took up for consideration the evidence of P.W.50 and
disbelieved his evidence primarily on the ground that through in the trip sheet
of the vehicle (Ext. P.54 a) the place of departure and place of arrival were
shown, the name of the person who performed the journey was not there. Besides,
the trial Court observed, P.W.31 (Suresh) was shown as the registered owner of
the vehicle in Ext. P.54 but P.W.50 was the registered owner. In absence of any
other evidence the trial Court held that it could not be said on the basis of
Ext. P.54 that it was A1 who performed the journey on May 28, 1990. While on this point, the trial
Court also found that the contention of A1 that under police coercion P.W.50
was compelled to give a statement before the Magistrate under Section 164 Cr.P.C.
(Ext.P.42) was probable.
trial Court lastly dealt with the motive ascribed to A1 for committing the
murder in the light of the contention raised on his behalf that Thadivakkan
referred to in Ext. P.31 was not A1 (Urulikunnam Vekkachan) and held it to be
insufficient and weak. The reason therefor is as under:- "It is true that
there is no evidence on record to show that Thadi Vakkan referred to in
Ext.P.31 (a) as Urulikunnam Vekkachan. Even assuming it to be so it cannot be
said that Ext P.31 would cause any provocation to A1.
other hand the image of the person who is referred to as Thadi Vakkan on
account of his alleged association with the high police officers in Kottayam
District is boosted by the publication of Ext.
(a) news item. At the same time the reputation of the high police officials in Kottayam
District (referred as Superintendents in the news item) has been tarnished by
the said publication. Therefore the persons who are really aggrieved by Ext. P.31(a)
are the high police officials in Kottayam District." With the above
findings and observations the trial Court acquitted all the accused persons.
Coming now to the impugned judgment, we notice that the High Court first
detailed the evidence of P.W.3 so far as it related to her having witnessed the
incident and identified the assailants and then made the following
62 years old at the time of the incident, her faculties were intact and vision
normal/unimpaired. No doubt the intruders were strangers to her; but she
claimed to have identified them in the light shed by her lamp as also the
torches, during those moments her son was belaboured and attacked and reached
to the scene in a spontaneous and natural manner. She had given a graphic
account of what had taken place in the room, which had hardly the shades of a
scene not only shocked her but had left its imprint upon her mind, that she
recalled effortlessly at the trial."
The High Court then adverted to the reasons canvassed by the trial Court for
disbelieving P.W.3 (quoted earlier) and made the following comments:
was nothing to suspect that she kept a light burning since she said that she
usually went to sleep between 12 - 1.00 a.m.
Yes! that accorded with the practice of some old people who sleep late. That
there was no lamp in the room where the deceased slept was understandable since
his wife and child slept by his side.
court below has observed that as she rushed to the room the lamp she had
perhaps would have been blown off since it was uncovered and that if would have
been impossible for her to have seen anything in the total darkness that
existed. The said observation seemed to have come out of distrust of her
version and amounted to a piece of imaginative exercise that was inappropriate.
The manner in which her evidence had been dealt with leaves much to be desired.
gone through it in detail, we have no doubt about her veracity that the court
below suspected without jurisdiction."
The High Court next dealt with the evidence of P.Ws. 3 and 4 regarding the
dying declaration and concluded that there was no reason to disbelieve them. In
repelling the contention reiterated before it on behalf of A1 that he was not
the person referred to in the dying declaration, the High Court observed that
the evidence on record including that of P.Ws. 50 and 54 clearly established
that the person named in the dying declaration and in Ext. P.31 was one and the
same, namely A1. The High Court also held that the comments of the trial Court
that the name of A1 was subsequently inserted by the Investigating Officer in
the inquest report to implicate A1 was without any basis whatsoever. The High
Court lastly held that the evidence of P.W.50 that the accused had travelled in
his car to Sarvarthra junction, was wholly reliable. Since however, there was
no legal evidence to prove overt acts of A4 to A7, the High Court gave them the
benefit of doubt, while setting aside the acquittal of the appellants.
Mr. U.R. Lalit, the learned counsel appearing for the appellants, first
submitted that the impugned judgment was rendered in utter disregard of the
well established principle that for setting aside an order of acquittal it is
not enough for an appellate Court to take a different view of the evidence and
there must also be substantial and compelling reasons for it to hold that the
Court below was wrong. In support of his submission he relied upon the
following passage from the judgment of this Court in Ramesh Babulal Doshi vs.
State of Gujarat [(1996) Vol. 9 S.C.C.225]:
Court has repeatedly laid down that the mere fact that a view other than the
one taken by the trial Court can be legitimately arrived at by the appellate
Court on reappraisal of the evidence cannot constitute a valid and sufficient
ground to interfere with an order of acquittal unless it comes to the
conclusion that the entire approach of the trial Court in dealing with the
evidence was patently illegal or the conclusions arrived at by it were wholly
untenable. While sitting in judgment over an acquittal the appellate Court is
first required to seek an answer to the question whether the findings of the
trial Court are palpably wrong, manifestly erroneous or demonstrably
unsustainable. If the appellate Court answers the above question in the negative
the order of acquittal is not to be disturbed. Conversely, if the appellate
Court holds, for reasons to be recorded, that the order of acquittal cannot at
all be sustained in view of any of the above infirmities it can then - and then
only - reappraise the evidence to arrive at its own conclusions.
keeping with the above principles we have therefore to first ascertain whether
the findings of the trial Court are sustainable or not."
According to Mr. Lalit, the reasons given by the trial Court to acquit the
appellants could not be said, by any stretch of imagination, to be palpably
wrong or wholly unsustainable so as to entitle the High Court to reverse the
same. On the contrary, he submitted, the judgment of the trial Court was based
on proper and reasonable view of the evidence and reliance on law laid down by
this Court. In elaborating his arguments on this point Mr. Lalit submitted that
it being the admitted case of the prosecution that P.W.3 did not know the
appellants from before, the trial Court was fully justified in rejecting her
testimony regarding identification of the appellants in Court, two years after
the incident, in absence of any Test Identification (T.I.) parade held to test
her power of observation, relying on the judgment of this Court in Kanan vs.
State of Kerala [(1979) 3 S.C.C.319]. Equally justified was the Court in
pressing into service her admission that the appellants were shown to her by
the police on the day before she testified in Court for such rejection, argued
Mr. Lalit. While on this point Mr. Lalit further submitted that the High Court
did not even advert to this aspect of the matter while accepting the evidence
of P.W.3 regarding identification of the appellants in Court as the assailants.
There is some substance in the above contentions of Mr. Lalit; firstly, because
the High Court did not deal with and dispose of the appeal strictly in
accordance with the above quoted principles and secondly, because the aspect of
T.I. parade was not at all considered by the High Court. Our endeavour,
therefore, will be to reassess the evidence, more so, when this is a statutory
appeal, in the light, of the findings of the trial Court.
noticed earlier, the trial Court rejected the claim of P.W.3 that she had seen
the incident in the light of a burning lamp. Apart from the comments made by
the High Court (quoted earlier) for discarding the finding of the trial Court
in this regard- which in out opinion are fully justified - we find that the
relevant statements made by P.W.4 and her husband P.W.7 in their evidence were
not noticed by the trial Court as also by the High Court. In their testimony
both of them, who are the next door neighbours of the deceased, categorically
stated that when they reached there (the house of the deceased) there was a
burning kerosene lamp and that it was in its light that they saw Sasi lying in
a pool of blood. Neither of them was cross-examined on this point nor do we
find any reason whatever to disbelieve them. Indeed, no suggestion, for what it
was worth, was even put to them that they were deposing falsely. Their evidence
not only takes the wind out of the sails of the reasonings of the trial Court
regarding the existence of the lamp - and, for that matter, of its burning at
the material time - but fully corroborates the evidence of P.W.3 that she saw
the assault and identified the assailants with it. Since the reasoning of the
trial Court in this regard is based on non- consideration of material evidence
it must be held to be patently wrong.
brings us to the question whether the ground canvassed by the trial Court for
rejection of her evidence regarding identification of the appellants, whom she,
admittedly, did not know from before, as the assailants are improper or not. So
far as the first ground is concerned, law is well settled that identification
of an accused in Court is the substantive evidence of the person identifying
and his earlier identification in a T.I. parade corroborates the same. In other
words, want of evidence of earlier identification in a T.I. parade does not
affect the admissibility of the evidence of identification in court.
may now consider what will be the effect of failure to hold the T.I. parade. In
Kanta Prasad vs. Delhi Administration [1958 S.C.R. 1218] a two Judge Bench of
this Court observed as under:
would no doubt have been prudent to hold a test identification parade with
respect to witnesses who did not know the accused before the occurrence, but
failure to hold such a parade would not take inadmissible the evidence of
identification in Court. The weight to be attached to such identification would
be a matter for the Courts of fact and it is not for this Court to reassess the
evidence unless exceptional grounds were established necessitating such a course."
(emphasis supplied) (For reasons earlier stated exceptional grounds have been
made out in this case to reassess the evidence.) 27. We may next refer to the
case of Harbhajan Singh vs. State of Jammu & Kashmir [(1975) 4 S.C.C. 480],
decided by a three Judge Bench. In that case Harbhajan Singh (the appellant
therein) alongwith one Gurmukh Singh - both of whom were members of Border
Security Force - absented themselves from their evening parade without
obtaining leave and sauntered into Kangri, armed with two rifles which were
issued to them for the performance of their official duties.
first went to the house of one Kashu Ram, demanded eggs from his wife and
helped themselves to a bottle of rum.
they went to the house of the complainant Munshi Ram. While Gurmukh Singh
mounted guard at the door of his house the appellant went inside. The appellant
caught hold of Munshi Ram's daughter Kamla Devi and began to drag her out of
the house. MUnshi Ram entreated the two intruders to be merciful but Gurmukh
Singh fired a shot at him which fortunately missed its target. In the confusion
that followed Kamli Devi managed to rescue herself and started running back to
her house. Thereupon the appellant fired a shot from his rifle at her as a
result of which she died instantaneously. To prove its case the prosecution
relied upon the evidence of Munshi Ram., his wife and a neighbour.
Court found that the evidence of those witnesses was amply corroborated in the
circumstances that on the fateful evening the appellant and Gurmukh Singh were
absent at the time of roll call, that on that night when they were arrested
their rifles smelt of fresh gun powder and that the empty cartridge case which
was found at the scene of offence bore distinctive markings showing that the
bullet which killed Kamli Devi was fired from the rifle of the appellant.
evidence of Kesuram also showed that after the appellant and another accused
drank liquor at his house they went to the house of Munshi Ram. An argument
raised on behalf of the appellant therein that the investigating officer ought
to have held an identification parade and that the failure of Munshi Ram to
mention the names of the two accused to the neighbours who came to the scene
immediately after the occurrence showed that his story could not be true, was
rejected by this Court and the appeal dismissed with the following observation:
observed by this Court in Jadunath Singh v. State of U.P., (1971) 2 SCR 917 = (AIR 1971 SC 363 = 1971 Cri LJ
305) absence of test identification is not necessarily fatal. The fact that MUnshi
Ram did not disclose the names of the two accused to the villagers only shows
that the accused were not previously known to him and the story that the
accused referred to each other by their respective names during the course of
the incident contains an element of exaggeration. The case does not rest on the
evidence of Munshi Ram alone and the corroborative circumstances to which we
have referred to above lend enough assurance to the implication to the
appellant." (emphasis supplied)
need not however refer to the other cases on the S.C.C. 76] this Court has,
after considering the earlier cases of this Court, including Kannan (supra), on
which the trial Court relied, Kamta Prasad (supra) Jadunath Singh (supra) and Harbhajan
Singh (supra), and of different High Courts, held that failure to hold the T.I.
parade even after a demand by the accused is not always fatal.
cannot be denied however that though not fatal, absence of the corroborative
evidence of prior identification in a T.I. parade makes the substantive
evidence of identification in Court after a long lapse of time a weak piece of
evidence and no reliance can be placed upon it unless sufficiently and
satisfactorily corroborated by other evidence. We have, therefore, to ascertain
whether the other evidence adduced by the prosecution lends implicit assurance
to the evidence of P.W.3 regarding her identification of the appellants as the
assailants. Before adverting to such evidence it would be necessary to refer to
the other comments made by Mr. Lalit to the `identification' evidence of P.W.3.
Mr Lalit submitted that the evidence of P.Ws.3 and 54 clearly established that
the former had seen the accused in the dock on the day previous to her
examination. That necessarily means, according to Mr. Lalit, the
`identification' evidence of P.W.3 was wholly unreliable. Mr. Lalit further
submitted that when the trial Judge had rejected the evidence of P.W.3 on the
question of identification taking into consideration also the above admission
of P.W.3 it could not be said that the finding of the trial Court was improper
so as to justify the High Court to disturb the same. On perusal of the relevant
portion of the evidence of P.Ws.3 and 54 we are unable to accept the contention
of P.Ws.3 and 54 we are unable to accept the contention of Mr. Lalit nor the
finding of the trial Court in that regard for the same are based on misreading
of the evidence. In her cross examination P.W.3 was asked the following
question: "You have seen the accused standing in the dock, hadn't
you?" and her reply was "had seen." In cross examination of
P.W.54 on this point the following answers were elicited:
records have been produced in the Court to show that the witnesses have recognised
the accused. I have not submitted application for conducting identification
parade for recognising the accused. As the witnesses had identified the accused
it did not occur that there was any need for identification parade." We
are at a loss to understand how the trial Court could come to the conclusion
that P.W.3 had admitted that she had seen the accused a day before she
testified in Court. On the contrary, the above statement of P.W.3 does not in
any way belie or weaken the prosecution case that she had seen the accused on
the day of the incident and thereafter in Court at the time she was being
examined. This apart the answer elicited from P.W.54 only indicates that he
felt (which in our view was wholly wrong) that as the witnesses (which
obviously included P.W.50) had identified the accused he did not think it
necessary to pray for T.I. parade. IN any view of the matter the above
statements do not support the submission of Mr. Lalit nor the conclusion drawn
by the trial Court.
brings us to the dying declaration made by the deceased before P.Ws.3 and 4
which has been pressed into service by the prosecution to corroborate the
ocular version of P.W.3. Before proceeding further we must confess that we have
not able to fathom how the trial Court could rely upon the contents of Ext.
P.1, lodged by P.W.1, and that too for the purpose of discarding the evidence
of P.Ws.3 and 4.
turned hostile and testified that he did not make any statement before the
police but signed on the dotted lines.
trite that an F.I.R. is not substantive evidence (unless of course it is
admitted under Section 32(1) of the Evidence Act) and can be used to
corroborate or contradict the maker thereof; and therefore, the question of
corroborating P.W.1 by his purported statements, as contained in Ext. P.1 could
not arise. Inspite thereof the trial Court observed `.......the first informant
statement is further supported by the evidence of P.W.1' and used the
statements contained therein (Ext.P.1) as substantive evidence to discredit
P.Ws.3 and 4. It must, therefore, be said that the approach of the trial Court
in dealing with the F.I.R. was legally impermissible. We are also surprised to
find that the trial Court disbelieved P.Ws.3 and 4, relying upon the statements
contained in an inquest report, to the extent they relate to what the
Investigating Officer saw and found are admissible but any statement made
therein on the basis of what he heard from others, would be hit by Section 162 Cr.P.C..
The whole purpose of preparing an inquest report under Section 174 (1) Cr.P.C.
is to investigate into and draw up a report of the apparent cause of death,
describing such wounds as may be found on the body of the deceased and stating
in what manner, or by what weapon or instrument, if any, such wounds appear to
have been inflicted. In other words, for the purpose of holding the inquest it
is neither necessary nor obligatory on the part of the Investigating Officer to
investigate into or ascertain who were the persons responsible into or
ascertain who were the persons responsible for the death. In dealing with
Section 174 Cr.P.C. in Podda Narayana vs. State of A.P. [(1975) 4 S.C.C.153],
this Court held that the object of the proceedings thereunder is merely to ascertain
whether a person died under suspicious circumstances or met with an unnatural
death and, if so, what was its apparent cause.
to this Court the question regarding the details how the deceased was assaulted
or who assaulted him or under what circumstances he was assaulted is foreign to
the ambit and scope of such proceedings. With the above observation this Court
held that the High Court was right (in that case) that the omissions in the
inquest report were not sufficient to put the prosecution out of Court. In Eqbal
Baiq vs. State of A.P. [(1986) 2 S.C.C.476] this Court
observed, while dealing with a similar question, that the inquest report was
not the statement of any person wherein all the names of the persons accused
were to be mentioned. On this ground also the finding of the trial Court based
on the inquest report cannot be sustained.
Now that we have demonstrated that the principal reasons put forward by the
trial Court for discarding the dying declaration are patently wrong and opposed
to the fundamental principles of criminal jurisprudence, we have to ascertain
for ourselves whether the evidence adduced by the prosecution to prove the same
can be safely relied upon. To prove the dying declaration the prosecution
examined some neighbours of the deceased namely, P.W.1 and P.Ws.4 to 10,
besides his wife (P.W.2) and mother (P.W.3). Of them P.W.1, P.W.5 and P.Ws.8 to
10 - and even P.W.2 - turned hostile and resiled from their statements recorded
under Section 161 Cr.P.C. wherein they had testified about it. However, P.W.3
averred that when the persons who had assaulted Sasi were gone, Vijayamma
(P.W.2) asked him who assaulted and Sasi said that it was Urulikunnam Vakkachan.
The evidence of P.W.3 in this regard is fully corroborated by P.W.4. She stated
that when she accompanied by her husband (P.W.7) reached Sasi's house she saw
him rolling in blood in the western room in their house. P.W.1 then asked Sasi
"What is this Sasi?" Sasi said "Appaichettan" (referring to
P.W.1) I know the man; Urulikunnam Vakkachan stabbed with knife".
to her at that time amongst others Sasi's wife, mother and child were near Sasi.
While discussing the evidence of P.W.4 with reference to the burning of the
kerosene lamp we have found that she is a truthful witness; and indeed, we find
no reason to disbelieve this neighbour of the deceased. The evidence of dying
declaration as testified by these two witnesses was criticised by Mr. Lalit on
the ground that neither the other neighbours nor P.W.2 spoke about the same.
The trial Court also made a similar criticism while disbelieving the evidence
of P.Ws.3 and 4.
not, however, find any substance in this criticism. As earlier stated, except
P.Ws.6 and 7 all others examined by the prosecution resiled from their
statements during investigation and were declared hostile. So far as the other
two neighbours are concerned namely P.W.6 and P.W.7 we find that the former
stated that he did not hear Sasi saying anything and he did not also ask Sasi
about the injuries that he sustained. From the above statement made by this
witness it cannot be said that the evidence of P.Ws.3 and 4 stands contradicted
in any way. Had he testified that neither Sasi nor P.Ws.3 and 4 spoke about the
assailants when asked, it would have, of course, discredited the statements of
P.Ws.3 and 4. It might as well be said that he came at a later stage when Sasi
was not in a position to speak. As regards P.W.7 no question regarding the
dying declaration was put to him neither in examination-in-chief or in cross
examination and consequently his evidence also does not in any way discredit
the prosecution case. Having carefully gone through the evidence of P.Ws.3 and
4 we find no justifiable reason to disbelieve their assertion that Sasi made a
statement that Urulikunnam Vakkachan stabbed him.
Thus said we have to ascertain whether A1 is Urulikunnam Vakkachan mentioned by
the deceased, for much comment has been made by the trial Court as also by Mr. Lalit
on this aspect of the matter. The evidence on record unmistakably proves that
A1 is a resident of Elikkulam village in the district of Kottayam. From the
evidence of P.W.54, we learn that "Urulikunnam" is a Kara (locality)
of that village. P.W.50 who knew A1 from before testified that he (A1) is a resident
of Urulikunnam; and, again, in answer to a question put to him in cross
examination, he said that he knew the residence of the accused. When the above
pieces of evidence are put together and considered in the context of the fact
that it was not even suggested to any of the prosecution witnesses - much less
elicited in their cross examination - that there was any other person by the
name Vakkachan in Urulikunnam, the conclusion is inescapable that the deceased
referred to A1 when he named Urulikunnam Vakkachan as the assailant.
Mr. Lalit, however, argued that the deceased had named one Thadivakkan, as the
person who was in league with the police and was indulging in nefarious
activities, in his report (Ext. P.31) and not `Urulikunnam Vakkachan' and that
necessarily meant that `Thadivakkan' referred to in that report and `Urulikunnam
Vakkachan' referred to in the dying declaration were not one and the same
person. In other words, according to Mr. Lalit, A1 was not the person mentioned
in the dying declaration. This contention of Mr. Lalit and the finding recorded
by the trial Court to that effect is devoid of merit. The newspaper report
(Ext. P-31a) refers to a person who belongs to Elikkulam village in Kottayam
district and has the sobriquet `Thadivakkan'. There is, therefore, no confusion
in the identity, for while in the report the deceased had given the sobriquet
of the deceased along with the name of the village where he resides, in his
dying declaration he gave out the name by which he is known to all, including
P.W.50, and also addresses himself. Both motive of A1 for committing the murder
as also his identity as one of the participants in the murder thus stand
Even if we were to assume that the person named in the report (Ext.P.31)
referred to someone other than A1 it would not have affected in any way the
prosecution case regarding the identity of A1 as one of the assailants in view
of our earlier findings based on the evidence of P.Ws. 3 and 4, for it would
have only meant that the prosecution failed to prove the motive ascribed to A1
for committing the murder.
it differently, once it is established that A1 was amongst the miscreants the
proof of motive pales into insignificance. Besides, it may as well be, that
being a villager of Elikkulam village with similarity of names, A1 thought that
the news item referred to him and, therefore, he decided to commit the murder
of the reporter, namely the deceased. In any view of the matter, the identity
of A1 as one of the assailants, as stated in the dying declaration of Sasi,
cannot be doubted.
may now turn to the evidence of P.W.50, detailed earlier. From the judgment of
the trial Court we notice that the substantial parts of its comments, (quoted
earlier) are based on his statement recorded under Section 164 Cr.P.C. and not
his evidence in Court. The said statement was treated as substantive evidence;
as would be evident from the following, amongst other observations made by the
learned trial Court:- "If Ext. P.42 (the statement recorded under Section
164 Cr.P.C.) is found to be a genuine statement it can be used as an important
piece of evidence to connect the accused with the crime".
making the above and similar comments the trial Court again ignored a
fundamental rule of criminal jurisprudence that a statement of a witness
recorded under Section 164 Cr.P.C. cannot be used as substantive evidence and
can be used only for the purpose of contradicting or corroborating him. Instead
of appreciating the evidence of P.W.50 from that perspective the trial Court
confined its attention mainly to his statement so recorded and discredited him.
legal infirmity apart, factually also the trial Court committed patent errors.
As earlier noticed, one of the grounds for disbelieving him was that in the
trip sheet the name of the person who performed the journey, namely, A1 was not
shown. If the trial Court had cared to look into the other trip sheets which
form part of Ext. P.54 it would have found that in none of them the name of the
person who hired the car is mentioned. The trial Court was, therefore, not at
all justified in commenting upon such non-mentioning of the name of the hirer
and concluding therefrom that the document was suspect. The comments of the
trial Court that P.W.50 made the statement before the Magistrate (Ext. P.42) to
oblige the police as his brother was arrested in connection with an excise case
is also without any basis whatsoever. In drawing the above inference the trial
Court was much influenced by the fact that the car in question, namely, KEK
3114 was seized by the police May 31, 19920 and that it was released on June
28, 1990. According to the trial Court it was wrongfully detained by the police
for such a long period to compel P.W.50 to make a statement according to its
dictate. Once a car is seized in connection with a case it can be returned
pursuant to the order of a competent Court only and there is nothing on record
to indicate that inspite of such an order the car was not returned so as to
entitle the trial Court to comment that the long detention of the car was
itself a suspicious circumstance. Having gone through the evidence of P.W.50 we
find that each of the reasons canvassed by the trial Court for disbelieving
P.W.50 is either legally unsustainable or factually incorrect.
The evidence of P.W.50 goes to prove that his vehicle was hired by A1 and all
the accused persons including A1 had gone in his vehicle and got down at Sarvathra
junction. His evidence, therefore, is an incriminating circumstance, more so
when we find that the house of the deceased was at a distance of 150 mtrs. from
a comprehensive view of the materials on record we are fully satisfied that the
prosecution has been able to prove beyond all reasonable doubts that A1 was
among the assailants, as testified by P.W.3 and fully corroborated by the dying
declaration made by the deceased before P.Ws.3 and
evidence of P.W.50 also lends assurance to the above conclusion we feel that
they are entitled to the benefit of reasonable doubt, having regard to the fact
that their identification in Court for the first time was not corroborated by
any identification in a T.I. parade earlier held nor by the dying declaration.
It is of course true that the evidence of P.W.50 corroborates the evidence of
P.W.3 regarding their identification but we feel that we will not be justified
in raising a conclusive inference, relying thereupon that they were also
amongst the miscreants.
the prosecution has not ascribed any motive to them for committing the murder.
the conclusions as above we uphold the convictions and sentences of A1 (George
@ Vakkachan) as recorded by the High Court, but set aside the convictions of A2
we direct that A2 (Rajeev) and A3 (Joshy), who are in jail, be released
forthwith unless wanted in connection with any other case. The appeals are thus