N.H.Muhammed Afras Vs.
State of Kerala [2008] INSC 2012 (25 November 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1234 OF 2006 N.H.
Muhammed Afras ....Appellant Versus State of Kerala ....Respondent CRIMINAL
APPEAL NO. 1248 OF 2006
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in these appeals is to the judgment of a Division Bench of the Kerala High
Court disposing of two separate appeals by a common order. The two appeals were
filed by the present appellants who faced trial for commission of offence
punishable under Section 302 read with Section 34 of the Indian Penal Code,
1860 (in short the `IPC'). They were found guilty and convicted by learned
Sessions Judge Kasaragod.
2.
Background
facts in a nutshell are as follows:
Babu (PW 1) on
3.9.1996 at about 9.30 pm closed his Bakery shop and proceeded towards his
house in his scooter. When he reached near B.Ed Centre, Nellikkunnu, he saw a
person lying on the road and three persons were standing near him and among the
three persons, two persons, namely Ashraf (A1) & Afras (A2), stabbed the
person lying on the road with knife. He saw the incident with the help of the
Head Light of his scooter.
He was able to
identify that the persons were Ashraf (Al) & Afras (A2).
When they saw PW 1,
they ran away from the place of occurrence.
Immediately he went
to the shop of Ganghadharan, PW3, a local councillor and informed this to him.
Both of them came to the scene of occurrence.
PW3 was able to
identify the person lying and told PW1 that he was one Jayachandran known to
him. Since the police picket was posted near the place of occurrence, as there
were frequent communal clashes, PW3 went to the police picket post and informed
them of the incident and then PW4 the police officer and others came to the
scene of incident and took the injured to the Kasargod Taluk Hospital along
with PW3. The Doctor at the hospital examined the injured and declared him
dead. Thereafter, PW1 went to the Kasargod Police Station and lodged the
complaint Ex.Pl. A case was registered by Inspector of Police (PW17) as Crime
No.606 of 1996 for offence under Section 302 read with Section 34 IPC at 10.45
pm on 3.9.1996 against two known (Al & A2) and one unknown person. On 4.9.1996,
PW17 conducted inquest and prepared inquest report (Ex.P13).
On 4.9.1996 doctor
(PW15) conducted post mortem and issued postmortem certificate Ex.P9. On
12.9.1996 A1 & A2 were arrested by PW 17. M.O. 1 knife was recovered from
A1. After completion of investigation charge sheet was filed on 7.4.1997 for
the offence under Section 302 read with Section 34 IPC against both the
accused. On behalf of the prosecution PWs 1 to 17 were examined Ex.P1 to P16
were marked. The accused were questioned under Section 313 of the Code of
Criminal Procedure, 1973 (in short `Cr.P.C.'). They denied the allegations. On
their behalf DW1, the SHO was examined and Ex.D1 and Ex.D4 were marked. CI
Court Exhibit was also marked.
After completion of
investigation, charge sheet was filed. As the accused persons pleaded
innocence, trial was held. As noted above, the prosecution based its version
primarily rested on the evidence of Babu- PW1. The appellants highlighted
before the trial court that the evidence of PW1 is not believable. It is highly
improbable that he would identify two persons in the light of the scooter with
whom he was not acquainted. If the names of the accused persons were known to
the witnesses, more particularly, the police constable who is supposed to have accompanied
the deceased, he would have certainly not stated that the deceased had suffered
injuries at the hands of unidentified persons. There was considerable
unexplained delay in dispatch of the special report. The distance from the
police station to the Court is hardly 250 yards but the report was received
after more than 24 hours after the FIR was purportedly lodged. The trial court
referred to all the aspects to hold that they were all of no substance. In
appeal the stand was reiterated but the High Court by the impugned judgment
rejected the same.
3.
In
support of the appeal learned counsel for the appellant submitted that the fate
of the case depends only on the acceptability of PW1's evidence. It is stated
that according to the prosecution, the earliest document is Ex. P1. The
complaint is stated to have been given by PW 1.
As per Exh. P1
Jayachandran was stabbed to death by Ashraf and another man. In his statement
under Section 161 Cr.P.C. which was referred to bring out the contradictions,
it was stated that two persons were standing near the person who was lying on
the road and were stabbing him and they were A1 & A2. He admitted to have
stated earlier that he had actually seen two persons. In his evidence in court
he stated that he had seen three persons assaulting the person lying on the
road and it was A1 who stabbed the victim and A2 who beat with stick. The trial
court disbelieved PW 1's evidence with reference to the role of A2 beating the
deceased and the witness with the stick. PW 17 the Investigating Officer
initially denied to have seen the intimation of the doctor (Ex. C1), but later
on admitted that he had received it. He also accepted that in the said Exh. C1
it was clearly stated that at 10 PM an unidentified body was produced by the police.
In view of this position, statement of PWs. 1&3 that they had informed PW4
about the identity of the deceased cannot be said to be true. Added to that
there has been unexplained delay of considerable time gap between the time when
the FIR was supposedly lodged and the time it reached the court at a short
distance of 250 yards.
4.
Learned
counsel for the State on the other hand supported the judgment of the High
Court.
5.
There
are several factors which, as rightly contented by learned counsel for the
appellant, corrode the credibility of the prosecution version.
Firstly, the combined
effect of the evidence of PW 4, Exh.C1 and the evidence of PW17 and PWs.
1&3 is that there is marked contradiction between the statements of the
witnesses and the documents. If in Exh. C1 it was stated that an unidentified
body was brought to the hospital, it is not explained as to how and why PW 4
the police constable did not tell the doctor that the identity was known. The
modes of investigation of the police would be in different directions if an
unidentified body is brought and when a known person's body is brought. It is
strange that PW 4 who is supposed to have known the name of the deceased from
PWs 1&3 chose not to tell the name of the deceased to the Doctor. Further
PW 17's statement is full of contradictions. Initially he denied to have
received Exh.C1, but later on he accepted to have received the same. Even
thereafter he did not offer any explanation as to how and why it was stated in
the Doctor's intimation that an unidentified body was brought. This could have
been clarified had the doctor being examined. For reasons known to the
prosecution, he was not examined as a witness. Though the High Court noted that
there was no dispute that the FIR was lodged at 10.45 PM, that is factually
incorrect. In fact from the very beginning the accused persons have been taking
the stand that the FIR was not lodged at 10.45 PM as claimed, otherwise it
would not have reached the Court which is situated at a distance of 250 yards
after about 15 hours. No explanation has been offered as to why this delay had
occurred. Had any explanation been offered by the prosecution the Court could
have considered acceptability or otherwise of the explanation. That has not
been done. Though ignorance of PW1 about the scooter number, model and other
relevant factors may not in all cases be suspicious circumstances, but in the
present case this assumes importance.
6.
Above
being the position, the inevitable conclusion is that prosecution has failed to
establish the accusations, and appellants are entitled to acquittal which we
direct. The appellants be released forthwith from custody unless required to be
in custody in any other case. The appeal is allowed.
.........................................
...J. (Dr. ARIJIT PASAYAT)
............................................J
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