Allowed

Sabu and Others v. State of Kerala

Kerala HC18 Aug 2016CRL.A/2010/2009

Case brief

AI extract

What is this about?

Reference opinion under Section 392 Cr.P.C. on a division bench's equally divided opinion in an appeal against conviction for murder. The court held the solitary evidence of the sole eye-witness neither wholly reliable nor wholly unreliable and, absent corroboration, insufficient; it also faulted the trial court for relying on an unrecorded demeanour. Appeal allowed and appellants acquitted.

What did the court decide?

Appeal allowed; conviction and sentence set aside and the appellants acquitted, to be set at liberty forthwith unless required in any other case.

Sabu and Others Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 18TH DAY OF AUGUST 2016/27TH SRAVANA, 1938

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CRL.A.No. 2010 of 2009 (A)

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AGAINST THE JUDGMENT DATED 28-07-2009 IN SC. NO.115/2009 OF SESSIONS COURT, ERNAKULAM.

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(SC. NO.589/2009 OF ADDITIONAL SESSIONS COURT/SPL. COURT FOR NDPS ACT CASES, THODUPUZHA, RECEIVED BY TRANSFER AS PER ORDER IN

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WP(C).NO.24146/2008 (Y) DATED 19/02/2009 OF THE HON'BLE HIGH COURT OF KERALA AND RENUMBERED AS SESSIONS CASE NO.115 OF 2009).

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APPELLANTS/A1, A3 TO A9:

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SABU, S/O. SIVARAMAN, KALIYICKAL THEKKETHIL, PEERMADE. (A1)

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VINOD, S/O. PONNAYYAN, PILLAVEEDU,

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VADAKKETHIL, PERIYAR VILLAGE. (A3)

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AJITH, S/O.DIVAKARAN, KUTTIKKATTIL VEEDU, PEERMADE KARA. (A4)

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MOHANAN, S/O. KUNJADI, MUDAKARIL VEEDU,

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MANJUMALA VILLAGE. (A5)

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AJAYAGHOSH, S/O.KUNJUKUNJU, KONACKAL VEEDU, MANJUMALA. (A6)

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BENNY, S/O.MARKOSE, VAZHAPARAMBIL VEEDU, THEPPAKULAM KARA. (A7)

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7. RAJAPPAN, S/O.CHELLAPPAN, THUNDIYIL VEEDU, PATHUMURIKARA, KUMALY VILLAGE. (A8.

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....2/-

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CRL.A.No. 2010 of 2009 (A)

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8. BIJU, S/O.RAJAPPAN, RBT ESTATE LAYAM, INJIKADUKARA, PERIYAR VILLAGE. (A9)

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BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE. ADVS. SRI.ANIL K.MOHAMMED, SMT.M.B.SHYNI, SRI.SHYAM ARAVIND, SRI.N.K.SHYJU, SRI.SUJESH MENON V.B., SRI.C.K.SAJEEV, SRI.E.C.BINEESH, SRI.T.ANIL KUMAR, SRI.R.ANIL, SRI.P.K.VARGHESE, SRI.B.RAMAN PILLAI.

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY SR. PUBLIC PROSECUTOR SRI.K.B. UDAYAKUMAR.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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CRL.A.No. 2010 of 2009 (A)

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APPENDIX

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PETITIONER'S ANNEXURES:-

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ANNEXURE A COPY OF THE ORDER DATED 09/02/2010 OF THIS HON'BLE COURT IN CRL.MA. NO.1265/2010 IN CRL.A. NO.2010/2009.

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RESPONDENT'S ANNEXURES:-

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ANNEXURE I (IN CRL.MA. NO.7232/2014): COPY OF THE ORDER OF THE APEX COURT DATED 27/02/2013.

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ANNEXURE I	COPY OF THE WRITTEN TEXT OF THE SPEECH OF SRI.M.M. MANI.
ANNEXURE II	COPY OF THE ORDER DATED 28/05/2012 IN CMP. NO.1213/2012 OF JUDICIAL FIRST CLASS MAGISTRATE-I, PEERMADE.
ANNEXURE III	COPY OF THE ORDER DATED 28/06/2012 IN CRL.MC. NO.2081/2012 OF THE HON'BLE HIGH COURT OF KERALA.
ANNEXURE R1A	COPY OF THE STATEMENT SHOWING THE PAROLE DETAILS OF A1, SABU.
ANNEXURE R1B	COPY OF THE STATEMENT SHOWING THE PAROLE DETAILS OF A3, VINOD.
ANNEXURE R1C	COPY OF THE STATEMENT SHOWING THE PAROLE DETAILS OF A4, AJITH.
ANNEXURE R1D	COPY OF THE STATEMENT SHOWING THE PAROLE DETAILS OF A5, MOHANAN.
ANNEXURE R1E	COPY OF THE STATEMENT SHOWING THE PAROLE DETAILS OF A6, AJAYAGOSH.
ANNEXURE R1F	COPY OF THE STATEMENT SHOWING THE PAROLE DETAILS OF A7, BENNY.
ANNEXURE R1G	COPY OF THE STATEMENT SHOWING THE PAROLE DETAILS OF A8, RAJAPPAN.
ANNEXURE R1H	COPY OF THE STATEMENT SHOWING THE PAROLE DETAILS OF A9, BIJU.

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//TRUE COPY//

P.S. TO JUDGE

rs.

[CR]

B. KEMAL PASHA, J.

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................................................................ Crl. Appeal No. 2010 of 2009 ............................................................... Dated this the 18^th day of August, 2016

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Opinion rendered under Section 392 of the Cr.P.C.

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Two learned Judges of this Court, Mr. Justice K.T. Sankaran and Mr. Justice Babu Mathew P. Joseph, are equally divided in their opinion in rendering the judgment in this Appeal. Consequently, the matter has been placed before this Court under Section 392 Cr.P.C. through the order of the Hon'ble the Acting Chief Justice.

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This Court has chosen to hear the appeal afresh. Heard both the learned Senior Counsel for the appellants Sri. M.K. Damodaran and Sri. B. Raman Pillai and also the

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learned Public Prosecutor in extenso .

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Accused Nos.3 to 9 in Sessions Case

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Crl. Appeal No. 2010 of 2009

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-: 2 :-

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No.115/2009 of the Sessions Court, Ernakulam, who stand convicted under Sections 143, 147, 148, 506(ii) and 302 IPC read with Section 149 of the Indian Penal Code, and each of whom stand sentenced to undergo rigorous imprisonment for six months under Section 143 IPC, rigorous imprisonment for one year under Section 147 IPC, rigorous imprisonment for 2 years under Section 148 IPC, rigorous imprisonment for three years under Section 506(ii) and imprisonment for life and to pay a fine of ₹25,000/-, in default, to undergo rigorous imprisonment for one year more under Section 302 IPC, have come up in appeal. Even though the facts have been narrated by the aforesaid two learned Judges, when this Court has opted to hear the matter afresh, this Court is narrating the facts in brief as below.

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Deceased Balasubramanian @ Balu was the Deputy General Secretary of the High Range Plantation Employees Union(HRPEU), Idukki District. It is a trade union

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Crl. Appeal No. 2010 of 2009

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-: 3 :-

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owing allegiance to INTUC, which is the trade union wing of the Indian National Congress. Earlier, Balu was a worker of the Dy.F.I. which is the youth wing of the Communist Party of India(Marxist) [CPI(M)] and he had allegedly defected CPI (M) and joined Indian National Congress. Thereafter, he became the leader of HRPEU.

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In the year, 2003, there occurred the murder of one Ayyappadas, who was one of the office bearers of CPI(M). Balu was arraigned as the first accused in the case. Over and above the aforesaid enmity, Balu along with PW1 and PW3 were instrumental in objecting the proposal to construct a memorial for late Ayyappadas at the river purambokke . It is alleged that on account of all the above, the workers of CPI(M) had nurtured a grudge towards Balu, which became aggravated and consequently, they wanted to exterminate him.

¶60

In October 2004, there were severe labour unrest in the plantation sector in the high range area. The

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Crl. Appeal No. 2010 of 2009

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-: 4 :-

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plantation workers belonged to different trade unions joined together and called for an agitation and struck work. While, such a strike was going on, the HRPEU headed by Balu, PW1 and PW3, had abruptly withdrawn from the strike, which necessitated them to explain the circumstances in which they had to withdraw from the strike. With a view to justifying their action, HRPEU organised various corner meetings and the said Balu was one of their main speakers who could explain the circumstances which compelled them to withdraw from the strike.

¶64

It is alleged that all of a sudden, by about 7.30 p.m., A1 to A9 who had formed themselves into an unlawful assembly armed with deadly weapons arrived there by jeep bearing Reg.No.KL-5H-7428 owned by PW10 and allegedly driven by A9. The jeep came to an abrupt halt just in front of the venue of the corner meeting. A1 to A8, who were armed with deadly weapons, jumped out of the jeep and rushed towards Balu. It is alleged that the first accused inflicted a

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Crl. Appeal No. 2010 of 2009

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-: 5 :-

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cut on Balu with a sword. There occurred a hue and cry and the audience moved away. With a view to escaping from the clutches of the accused, Balu attempted to run away. He was chased by A1 to A4. The second accused inflicted a cut on the back of the head of Balu with a sword. On getting that blow Balu fell in a prone position and he lay prone on the ground. Cuts with swords were indiscriminately inflicted by the accused all over the body of Balu and consequently Balu died.

¶68

It is alleged that apart from causing the death of the deceased, accused Nos.5 to 8, armed with deadly weapons threatened the workers of the HRPEU by uttering that they would be done away with. The jeep of the deceased was also allegedly damaged. After carrying out the successful mission of doing away with the deceased, the accused had allegedly shouted slogans and they left the place by the very same jeep by which they came over there.

¶69

On getting information regarding the murder of

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Crl. Appeal No. 2010 of 2009

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-: 6 :-

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the deceased, PW13, who was one of the colleagues of the deceased, reached the spot and saw the dead body. Thereafter, he proceeded to the Peerumedu Police Station, where he furnished Ext.P14 first information statement at 10.30 p.m. before PW52 Additional Sub Inspector of Police. On the basis of Ext.P14, PW52 registered Crime No.206/2004 of the Peerumedu Police Station, through Ext.P14(d) FIR. PW53 Circle Inspector of Police, Peerumedu reached the spot with the police party. He had allegedly sent PW13, who was then present at the spot, to the Police Station for furnishing the first information statement. PW53 then and there conducted the inquest of the body of the deceased and prepared Ext.P36 inquest report. On 21.10.2004 he prepared Ext.P37 scene mahazar and seized properties including the jeep of the deceased.

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On 22.10.2004 while PW53 was in search of the

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accused, he could see the accused coming by the very same jeep bearing Reg.No.KL-5H-7428 from Wagamon side

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Crl. Appeal No. 2010 of 2009

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-: 7 :-

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and proceeding to Elappara side. He obstructed the jeep and placed A1 to A9 under arrest. A1 to A9 divulged the information that the weapons made use of by them were kept in the jeep. PW53 could see the weapons on the rear side of the jeep on its platform. Through Ext.P38 seizure mahazar, MOs.13 to 20 weapons were seized, out of which MOs.13 to 16 are swords. Along with those weapons, the clothes worn by the accused were also seized. A search was conducted at the house of A10 on 28.10.2004. Nothing incriminating could be seized. Thereafter, the investigation of the case was handed over to the Crime Branch.

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PW54 took over the investigation. A10 was placed under arrest on 15.02.2005. PW54 completed the investigation and filed the final report, alleging offences punishable under Sections 120B, 143, 147, 148, 506(ii), 323, 324, 302 and 427 IPC read with Section 149 IPC and Section 4 read with Section 25(1)(b) of the Arms Act.

¶79

On the side of the prosecution, PWs.1 to 54 were

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Crl. Appeal No. 2010 of 2009

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-: 8 :-

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examined, Exts.P1 to P87 were marked and MOs.1 to 61 were identified. The accused were examined under Section 313 Cr.P.C. Since no grounds were made out to acquit the accused under Section 232 Cr.P.C., they were called upon to enter on their defence. No defence evidence was adduced.

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The aggrieved mother of the deceased wanted a Special Public Prosecutor to be appointed in the case. Since her request for the appointment of a Special Public Prosecutor was declined, she approached this court. Even though this court has directed the State Government to consider the appointment of a Special Public Prosecutor, no Special Public Prosecutor was appointed. Initially, the trial was conducted before the Additional Sessions Court, Thodupuzha., where 27 witnesses were examined in the case, out of whom 21 witnesses were cited and examined by the prosecution as eye witnesses to the occurrence. The said so-called eye witnesses were none other than the

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Crl. Appeal No. 2010 of 2009

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-: 9 :-

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friends and colleagues of the deceased. All of them turned hostile to the prosecution, and did not support the prosecution case. Even PW1, PW3 and PW22 who were co-accused along with the deceased, in the murder case of Ayyappadas, had also turned hostile to the prosecution.

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When the aforesaid witnesses turned hostile to the prosecution, the mother of the deceased again approached this court through W.P.(C) No.24146 of 2008 seeking the transfer of the case from the Additional Sessions Court, Thodupuzha to the Court of Sessions, Ernakulam. Vide judgment dated 17.02.2009 in W.P.(C) No.24146/2008, this Court issued the following directions:

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“In the result:

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(a) This writ petition is allowed.

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(b) Following directions are issued for

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the continued prosecution of S.C.No.589/06 pending before the Additional Sessions Court (Special Court for NDPS Act Cases), Thodupuzha:

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Crl. Appeal No. 2010 of 2009

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-: 10 :-

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(i) The trial in S.C.No.589/06 shall now continue before the learned Principal Sessions Judge, Ernakulam.

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(ii) The prosecution shall be conducted by any Prosecutor who has already been appointed as Public Prosecutor by the State of Kerala and both parties are permitted to file a list of such Prosecutors who are reputed for their competency and who have no political commitment/affiliation.

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(iii) The petitioner shall be permitted to appoint a private counsel to assist the Prosecutor under Sec.301 Cr.P.C.

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(iv) If such counsel has any reservations against the proper conduct of the case by the Public Prosecutor, it shall be open to such counsel to bring to the notice of the learned Judge of such inadequacy and appropriate action shall be taken by the learned Judge.

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(v) Such Prosecutor shall consider the matter and shall be at liberty to make application to the court to recall and further

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Crl. Appeal No. 2010 of 2009

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examine any witnesses already examined and such request must be considered by the learned Judge and appropriate orders must be passed. The learned Judge shall also be at liberty to consider whether any witness already examined deserves to be recalled suo motu under Sec.311 Cr.P.C.

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21. Appropriate further directions shall be issued after ascertaining the name of the Public Prosecutors from the panel to be submitted by both sides. Call on 19.2.2009. ”

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Evidently, what was ordered by this Court was not a denova trial, whereas it was only the continued trial. The court below was given the liberty to invoke the powers under Section 311 Cr.P.C. Consequently, PWs.1, 2, 3, 6, 11, 14 and 22 were recalled and further examined. The remaining witnesses to be examined for the prosecution were also examined.

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The court below found the appellants guilty of the offences punishable under Sections 143, 147, 148, 506(ii)

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Crl. Appeal No. 2010 of 2009

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-: 12 :-

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and 302 IPC read with Section 149 of the Indian Penal Code, convicted them thereunder and sentenced them as aforesaid. The court below acquitted A10. Further, the court

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below has acquitted the appellants for the offences punishable under Sections 120B, 323, 324 and 427 IPC and Section 25(1) of the Arms Act.

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After hearing the learned Senior Counsel for the appellants and the learned Public Prosecutor, Hon'ble Mr. Justice K.T. Sankaran has concurred with the conviction and sentence passed by the court below. At the same time, Hon'ble Mr. Justice Babu Mathew P. Joseph, has passed an opinion that the evidence of PW2 is not believable and the conviction entered by the court below on the basis of the sole testimony of PW2 is liable to be set aside, and consequently, the sentences are also liable to be set aside.

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In fact, there is no challenge with regard to the

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cause of death of the deceased. At the same time, whether there is challenge or not, the question as to whether the

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Crl. Appeal No. 2010 of 2009

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-: 13 :-

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death was homicidal or not has to be considered.

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PW45, the Assistant Police Surgeon had conducted the postmortem examination and issued Ext.P54 postmortem certificate. He has noted the following antemortem injuries:

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“Injuries (Ante mortem)

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1. Incised wound 13x1.5x0.7 cm on the middle of back of head, placed obliquely with its left lower end 2 cm above the level of ear lobe. The skull bone underneath showed a cut fracture 8 cm long and 0.2 cm deep.

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1. Incised wound 4x1x0.5 cm placed obliquely on the middle of back of head with its left upper and continuous with the above injury at the midline.

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1. Incised wound 7.5x1x0.5 cm, obliquely placed on the middle of back of head with its left upper end 2 cm below the level of injury No.2. The skull bone underneath showed a cut 4x0.2 cm.

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1. Incised wound 9x0.5x1 cm on the left side of back of head, placed obliquely with its lower outer end 4 cm above the root of neck and 6 cm outer to midline. Skull bone underneath showed cut fracture 3x0.2 cm.

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1. Incised wound 7x0.5x0.5 cm on the right side of back of head, obliquely placed with its lower outer end 2 cm above the ear lobe.

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Brain showed bilateral thin film of subdural and

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Crl. Appeal No. 2010 of 2009

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subarachnoid haemorrhages. Its gyri were flattened and sulci were narrowed.

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1. Incised wound 2.5x0.5x0.2 cm on the outer margin of right ear lobe just below its top.

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1. Incised wound 9.5x0.5x1 cm obliquely placed on the left side of back of trunk and adjoining part of neck with its upper outer and just below the ear.

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1. Incised wound 9x1x1.5 cm obliquely placed on the left side of face extending to the adjoining part of left ear, cutting the ear lobe in to two.

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1. Incised wound 3x0.3x0.5 cm obliquely placed on the left side of face, 1.5 cm below the injury No.(8).

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1. Incised wound 27x7x6 cm horizontally placed on the left side of back of trunk and adjoining part of left shoulder and arm.

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The muscles, shoulder blade bone and head of arm bone, which was fractured and separated were exposed.

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1. Multiple incised wounds varying in size from 7x0.5x0.3 cm to 3x1x0.5 cm seen 0.5 to 1 cm apart, above injury No.10, with their lower ends continuous with it.

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1. Incised wound 17x3x1.5 cm on the back of left shoulder and adjoining part of outer aspect of arm, exposing the fractured arm bone underneath.

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1. Incised wound 21x2x4 cm obliquely placed on the right side of back of trunk and adjoining part of shoulder with lower outer end touching the midline 5 cm below the root of neck.

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1. Incised wound 11x1x0.5 cm, obliquely placed on the

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Crl. Appeal No. 2010 of 2009

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right side of back of trunk, with its upper inner end continuous with injury No.13.

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1. Incised wound 6x0.2x0.2 cm, vertically placed on the right side of back of trunk, with its upper end 8 cm outer to midline and touching the top of shoulder.

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1. Incised wound 5x0.2x0.2 cm on the top of right shoulder, placed obliquely with its lower inner end 2 cm outer to the above injury.

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1. Incised wound 6x0.2x0.3 on the right side of back of shoulder, obliquely placed with its lower inner end 2 cm outer to injury No.16.

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1. Superficial incised wound 17 cm long, placed horizontally across the back of trunk extending from the left shoulder blade to the right shoulder blade.

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1. Incised wound 9x1.5x1 cm obliquely placed on the left side of back of trunk, with its lower outer end, 9 cm below the back fold of axilla.

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1. Incised wound 12x0.5x0.7 cm on the outer aspect of left arm with its lower outer end 6 cm above the elbow.

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1. Incised wound 11x 4 cm bone deep, on the back of left forearm, obliquely placed with its lower inner end 8 cm above wrist. The ulnar bone underneath was fractured with its cut ends projecting through the wound.

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1. Incised wound 3x0.2x0.3 cm, horizontally placed on the back of left hand, 3 cm above the root of index finger.

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1. Incised wound 3x0.2x0.2 cm on the outer aspect of left index finger overlying its second knuckle.

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Crl. Appeal No. 2010 of 2009

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-: 16 :-

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1. Superficial incised wound 22 cm long obliquely placed on the middle of back of trunk with its left lower end at the level of top of hip bone.

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1. Incised wound 10x3 cm bone deep on the back and inner aspect of right knee and adjoining part of thigh. The lower end of thigh bone was cut fractured underneath.

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1. Incised wound 3x0.7x0.5 cm obliquely placed on the outer aspect of left knee.

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1. Linear abrasion 6 cm long, obliquely placed on the outer aspect of left knee, just above injury No.26.

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1. Linear abrasion 5 cm long, placed obliquely on the back of left leg, 5 cm below injury No.27.

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1. Incised wound 4x0.5x0.5 cm obliquely placed on the back of left leg, with its upper inner end 4 cm below injury No.28.

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1. Incised wound 14x4 cm bone deep on the back and inner aspect of left leg, placed obliquely with its lower inner end 12 cm above the ankle. The leg bones underneath were cut fractured.

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1. Incised wound 7 x 2.5 cm bone deep on the outer aspect and back of left leg, obliquely placed with its lower outer end 10 cm below the above injury. The leg bones underneath was cut fractured.

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1. Incised wound 1.5x0.5x0.1 cm on the back of right thumb involving the distal half of nail.

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1. Superficial incised wound 0.5x0.3x0.1 cm on the back of right middle finger overlying its last knuckle.”

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According to PW45, injury Nos.1 to 4, 10, 16, 21,

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-: 17 :-

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25, 26, 30 and 31 were fatal injuries, and that the cause of death was due to multiple injuries. Nobody has a case that the above injuries could be self-inflicted. The death was not either suicidal or accidental. Evidently, the death of the deceased was homicidal.

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Both the learned Senior Counsel for the appellants have made a scathing attack on the evidence of PW2 relied on by the court below for entering the conviction. It has been pointed out that at first PW2 had deposed before the Additional Sessions Court, Thodupuzha that he had not witnessed the incident and he had no acquaintance with the accused, and he had never seen the accused earlier to his examination. It has been pointed out that when he was recalled and examined before the court below, at first, PW2 had in clear terms deposed that due to darkness he could not identify the person who had inflicted the cut on the deceased. After deposing like that, he went on to identify the accused in the dock and in some manner has

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Crl. Appeal No. 2010 of 2009

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supported the prosecution. It is argued that his evidence is wholly unreliable. It has been further argued that even if his evidence is neither wholly reliable nor wholly unreliable, the rule of evidence requires sufficient corroboration. It has been argued that in this case, no such corroboration is there and therefore, the conviction is not possible on the basis of the evidence tendered by PW2, with an oscillating mind, that too, in a wavering manner.

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The learned Senior Counsel for the appellants have taken this Court through the entire evidence of PW2 and PW53 and the contents of Exts.P14 and P37. PW2 when examined before the Additional Sessions Court, Thodupuzha on 04.08.2008 had totally turned hostile to the prosecution and deposed that he did not see the incident in which the deceased was attacked. He was declared hostile and the prosecution was permitted to put questions that could be put in cross-examination. He had clearly deposed that he had no acquaintance with the accused and he had

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no occasion to see them.

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When he was recalled and examined on 17.06.2009, he stated that he knew the incident which resulted in the death of the deceased. According to him, the incident had occurred just after 8 p.m., on 20.10.2004 at a place called Choolappattu. He along with the deceased had gone to that place. PW1, PW3 and another person were also with them and they had gone to that place by jeep bearing Reg.No.KL-7Y-5464 belongs to the deceased and PW2 had driven the jeep. PW1 spoke in the meeting first and thereafter, it seems that the deceased was rendering the speech. He parked the jeep at the side of the stage. The park light of the jeep was burning. He remained in the jeep and was hearing the speech. Then a jeep came over there and it went back. Subsequently, an auto rickshaw came over there and the same also returned. After that, the jeep bearing No.KL-5H 7428 came over there and abruptly stopped in front of the venue. The persons, who came by

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the jeep, jumped out of it and inflicted cuts with swords on the deceased who was rendering the speech. More than eight persons were there out of whom four persons were carrying swords. Because it was dark, he could not see as to who was the person who inflicted cuts.

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Then according to PW2, the person who reached near the deceased first inflicted a cut on the left hand of the deceased. On getting the cut, the deceased jumped out of the stage. At that time, another person who came by the jeep inflicted a cut on the back of the deceased with a sword. The other men among them threatened PW2 and thereby PW2 took to heels. He took shelter at the side of the firewood shed of one Yesu(PW35). On getting the second cut, the deceased fell in front of the shop of PW35. Four persons, who came by the said jeep, repeatedly inflicted cuts on the deceased who was lying on the ground. Balu lay prone on the ground. According to PW2, he had hearsay information that the persons who had inflicted cuts

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on the deceased were workers of the Marxist party. The said persons had made a retreat from the spot after shouting slogans as “CPM zindabad ”. According to PW2, when the assailants started inflicting cuts on Balu, the audience, who were there had ran away from the venue.

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It seems that PW2 has immediately made a somersault and started deposing as follows: “The bulb on the switch board from which the mike was connected was burning”. According to him, the first one who jumped out of the jeep and inflicted cut on the deceased, was the first accused. It is pertinent to note that PW2 has not stated the name of the first accused; whereas he has simply pointed out that the first accused who was in the dock. According to PW2, the second one, who chased the deceased and inflicted cut on him, was not present in the dock. According to him, three persons, out of four persons who inflicted cuts on the deceased while the deceased was lying on the ground, were present in the dock. He identified A3 and A4

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by their names. According to him, A1, A3 and A4 were the three persons out of four persons who inflicted cuts on the deceased. The other persons, who had accompanied them, had threatened the people who had gathered there. He identified A5, A6, A7 and A8 as the said persons. It has to be noted that the witness has not identified them by their names whereas they were simply pointed out by way of identification by PW2. He had identified A9 Biju by name as the person who was the driver of the jeep by which the other accused persons had reached the spot. He had deposed that the head-lights of that jeep was switched off.

¶183

He had further identified MOs.13 to 16 as the swords used by the said four accused, and MOs.17 to 20 as the other weapons being carried by the other accused persons. He has deposed that he was frightened by the party-men and he had deposed before Thodupuzha Court that he had not seen the incident in which the deceased was attacked, because of the fact that he became frightened.

¶184

Crl. Appeal No. 2010 of 2009

¶185

-: 23 :-

¶186

It seems that the court below has relied on the demeanor of PW2 for relying on the evidence of PW2. According to the learned Sessions Judge, he could “ remember that during the course of his examination in court, PW2 was gradually gaining confidence to speak the truth, probably seeing the less charged atmosphere in this Court than the one he experienced in the Court of his first examination. ” Further, the learned Sessions Judge was of the view that having had the advantage of seeing PW2 in the witness box, he had no doubt in his mind that the evidence of PW2 was of such a 'sterling quality'. It seems that the court below had acted upon the demeanor of the witness which the learned Sessions Judge could remember from his memory at the time of passing the judgment. The court below has committed a grave error in not complying with the mandates of Section 280 Cr.P.C. for noting down the demeanor of a witness. As per Section 280 Cr.P.C., when a Presiding Judge records the evidence of a witness, he shall

¶187

Crl. Appeal No. 2010 of 2009

¶188

-: 24 :-

¶189

also record such remarks, if any, as he thinks material respecting the demeanor of such witness whilst under examination. Therefore, for noting down the demeanor of a witness, the court shall record matters respecting such demeanor during the examination of the witness concerned. Here, in the deposition of PW2, the court below has not recorded any such demeanor of the witness. The mandate of Section 280 Cr.P.C. for recording such demeanor is for enabling the appellate court also to note down the demeanor that could be noticed by the court below while recording the evidence. When the learned Sessions Judge has not noted such demeanor, the learned Sessions Judge ought not to have relied on such demeanor merely by stating that he could remember such a demeanor.

¶190

In cross-examination, PW2 admitted that he had not attempted to take the deceased to the hospital, even though the jeep by which he along with the deceased etc. had reached there, was lying there. According to him, on

¶191

Crl. Appeal No. 2010 of 2009 -: 25 :-

¶192

seeing some persons armed with weapons jumping out of the jeep, he became frightened and immediately he took shelter in the firewood shed situated at the western side of the shop of PW35. He could come out of the firewood shed, only when some people came over there from the “layam ” (quarters). It has come out from the admission of PW2 that the Police Station is just half a furlong away from his house. According to him, immediately after the occurrence he went to his house by bus. He has admitted that there was no impediment for him in informing the matter to the police. Further, according to him, at 11 p.m. on the same night, the police had reached his house. Even though he has stated in re-examination that the jeep of the deceased was in a smashed state, he has not spoken as to who were the persons who damaged the jeep.

¶193

On an over all analysis of the entire evidence of

¶194

PW2 noted above, this Court is satisfied that his evidence is not wholly reliable. Even PW1, PW3 and PW22 who were

¶195

Crl. Appeal No. 2010 of 2009 -: 26 :-

¶196

the co-accused along with the deceased in Ayyappadas murder case, have not chosen to support the prosecution. They have totally turned hostile to the prosecution and did not support the prosecution case. Even PW2, who had allegedly worked along with the deceased for 12 years, has not chosen to come to the rescue of the deceased. Even though the jeep was present there, he did not make an attempt to take the deceased to the hospital. He has not chosen to inform the matter to the police, even though the police station is hardly half a furlong away from his house. When it was a corner meeting in which several persons had participated as audience, it cannot be said that the witnesses had no occasion to see the incident. Except the blurred versions of PW2, nobody has come forward to state the true state of affairs. What is available is the solitary evidence of PW2 alone in this case. On going through his deposition, it seems that he had no occasion even to identify the accused clearly at the time of incident. It has come out

¶197

Crl. Appeal No. 2010 of 2009

¶198

-: 27 :-

¶199

from his cross-examination that immediately on seeing the armed persons jumping out of the jeep, he became frightened and he rushed to the firewood shed situated at the side of the shop of PW35 and took shelter inside the firewood shed. He came out of the firewood shed only when other persons had reached the spot, after the accused had allegedly gone away from the spot. He had no occasion to see as to who were the persons who smashed the jeep. Had he been present there, definitely he could have noted down the persons who had smashed the jeep. That itself creates a serious suspicion regarding the possibility of his presence near the scene of occurrence.

¶200

Apart from all the above, it has to be noted that initially, PW1 had chosen not to support the prosecution case. His versions that he had no occasion to see the accused persons and he had no acquaintance with them, stand as such in the evidence. When such versions are there, the prosecution was duty bound to put questions to

¶201

Crl. Appeal No. 2010 of 2009

¶202

-: 28 :-

¶203

PW2, in order to elicit an answer that he had prior acquaintance with the accused and therefore, he could identify the said accused. Here, evidently, apart from the names of A3, A4 and A9, PW2 had not spoken to with regard to the names of the other accused persons. True, that he identified the first accused as the first person who caused a cut injury on the deceased. He has not stated the name of the first accused. Similar is the case with A5 to A8 also.

¶204

In such circumstances, when the prosecution could not bring out that PW2 has prior acquaintance with the accused or that he had occasions to see them prior to the incident, necessarily a Test Identification parade ought to have been conducted; especially when the incident had occurred during night. Regarding the availability of light also, even though PW2 has stated that there was a burning electric bulb affixed on the switch board, the said versions do not find a place in his statement under Section 161

¶205

Crl. Appeal No. 2010 of 2009

¶206

-: 29 :-

¶207

Cr.P.C. which was brought out as a contradiction by way of

¶208

omission. Even though the park light of the jeep of the deceased was allegedly switched on, it is not possible to see the incident of this nature in the light from the park light. The oral evidence of PW2, if taken cumulatively, is as such shabby.

¶209

As rightly pointed out by the learned Senior Counsel for the appellants, even if the evidence of PW2 is accepted, it could only be treated that he is neither wholly reliable nor wholly unreliable. In such case, corroboration of the evidence of PW2 is the normal rule. The rule of evidence requires sufficient corroboration of the evidence of PW2 in such a context, when the close friends and colleagues of the deceased, who were expected to take the position of protectors of the deceased, have turned as predators. When friends are becoming foes, in a case like this, there cannot be any evidence for the prosecution to have a conviction unless sufficient corroboration is there to

¶210

Crl. Appeal No. 2010 of 2009

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-: 30 :-

¶212

the evidence of PW2.

¶213

The learned Senior Counsel for the appellants have invited the attention of this Court to the decision in Govindaraju Alias Govinda v. State by Sriramapuram Police Station and another [(2012) 4 SCC 722], wherein it was held in paragraph 24 as follows:

¶214

“It is a settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In the case of Lallu Manjhi v. State of Jharkhand (2003) 2 SCC 401 (SCC page 405, para 10) this Court had classified the oral testimony of the witnesses into three categories:

¶215

a. wholly reliable;

¶216

b. wholly unreliable; and

¶217

c. neither wholly reliable nor wholly

¶218

Crl. Appeal No. 2010 of 2009

¶219

-: 31 :-

¶220

unreliable.

¶221

In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence.”

¶222

Even if the versions of PW2 are relied on, it is

¶223

evident that it will squarely fall under the 3^rd category mentioned in the decision noted supra . In such case, the rule of evidence mandates corroboration.

¶224

Apart from all the above, it seems that PW53 has

¶225

also closed doors to the prosecution from getting the aid of Section 27 of the Indian Evidence Act. The seizure of the weapons allegedly made by PW53 from the jeep, by which, A1 to A9 were found travelling, even on 22.10.2004, were not the result of any discovery within the meaning of Section 27 of the Indian Evidence Act. When the prosecution is denied such an opportunity to have recourse to the aid of

¶226

Crl. Appeal No. 2010 of 2009

¶227

-: 32 :-

¶228

Section 27 of the Indian Evidence Act, the seizure of said weapons cannot be treated as a corroborative piece of evidence to support the versions of PW2. At the most, it may be said that the seizure of such weapons and the knowledge of A1 to A9 about the so-called weapons kept in the jeep could only be treated for the limited purpose of noting down the subsequent conduct of the accused.

¶229

Even going by the evidence of PW2, it is not discernible as to who carried MO13, who carried MO14, who carried MO15 and who carried MO16. Similar is the case with MOs.17 to 20 also. Here is a case, wherein, MOs.13 to 20 were kept in the court, and the same were shown to PW2 and PW2 has simply stated that those were weapons carried by the accused. It cannot be treated as proper identification of such weapons. In order to give a reliable evidence with regard to the identification of such weapons, the prosecution ought to have brought out evidence from PW2 as to the persons who carried the

¶230

Crl. Appeal No. 2010 of 2009

¶231

-: 33 :-

¶232

particular weapon or some identifying features of the weapons. That is the reason why this Court has taken a view that the evidence of PW2 as such is shabby. When such versions are there from PW2, it is not at all safe to rely on the solitary evidence of PW2 to enter into a conviction for the offences of such a serious nature.

¶233

In paragraph 25 of Govindaraju ( supra ), it was held:

¶234

“Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eye-witness, then such evidence has to be wholly reliable

¶235

Crl. Appeal No. 2010 of 2009

¶236

-: 34 :-

¶237

and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty.”

¶238

True that, a conviction can be based on the sole testimony of a witness. At the same time, in such a context, the evidence of such a sole eyewitness should be cogent, reliable and trustworthy. Here, the evidence of PW2 is not cogent and reliable, and he cannot be said to be trustworthy.

¶239

In Joseph v. State of Kerala [(2003) 1 SCC 465], it was held that -

¶240

“When there is a sole witness to the incident, his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as

¶241

Crl. Appeal No. 2010 of 2009

¶242

-: 35 :-

¶243

recorded.”

¶244

40. In Bhimapa Chandappa Hosamani and others

¶245

v. State of Karnataka [(2007) 1 SCC (Cri) 456], it was held:

¶246

“When a conviction is based on the testimony of a single eyewitness, the court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the court finds it safe to base a conviction solely on the testimony of that witness”.

¶247

41. In Rai Sandeep Alias Deepu v. State of NCT of

¶248

Delhi [AIR 2012 SC 3157], the Apex Court had occasion to consider as to who is a “sterling witness”. In Paragraph 15, it was held -

¶249

“In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test

¶250

Crl. Appeal No. 2010 of 2009

¶251

-: 36 :-

¶252

the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence

¶253

Crl. Appeal No. 2010 of 2009

¶254

-: 37 :-

¶255

and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core

¶256

Crl. Appeal No. 2010 of 2009

¶257

-: 38 :-

¶258

version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

¶259

At any stretch of imagination, PW2 cannot be styled as a sterling eyewitness.

¶260

It has been cautioned that in the case of a solitary witness, the evidence of such a witness should be cogent, reliable and in tune with the probabilities and it should inspire implicit confidence. It has also been held that when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable.

¶261

In Alil Mollah and another v. State of West

¶262

Bengal [(1996) 5 SCC 369], it was held in paragraph 6 that:

¶263

“It is now well established that conviction can be based on the testimony of a single eyewitness provided the Court finds from the scrutiny of his evidence that he is a wholly reliable witness. Where, however, the Court is of the opinion that the single eyewitness is only partly reliable,

¶264

Crl. Appeal No. 2010 of 2009

¶265

-: 39 :-

¶266

prudence requires that corroboration of testimony in material particulars should be sought before recording conviction.”

¶267

Even though in this particular case, the prosecution had raised an allegation that PW2 was also injured, PW2 has no case that he became injured in the incident. Had there been a case for PW2 that he became injured in the incident, his presence in the scene could not have been seriously doubted. At the very same time, no evidence has been adduced to show that PW2 became injured in the incident. Not even a question was put to PW2 by the prosecution as to whether he sustained any injuries in the incident.

¶268

From all the above, this Court is satisfied that the evidence of PW2 is not sufficient to warrant a conviction of the appellants for the offences for which they stand convicted and sentenced by the court below. PW2 is not a reliable witness at all. The conviction and sentence passed

¶269

Crl. Appeal No. 2010 of 2009

¶270

-: 40 :-

¶271

by the court below, merely based on the sole testimony of PW2, are not legally sustainable and therefore, the same are liable to be set aside.

¶272

In the result, this Court is of the opinion that the conviction and sentence passed by the court below are not legally sustainable and the same are liable to be set aside and therefore, the appeal has to be allowed. The appellants are only to be acquitted. Being the opinion under Section 392 Cr.P.C., the judgment shall follow on the basis of this opinion. Consequently, this appeal is allowed, and the appellants are acquitted. The appellants shall be set at liberty forthwith, in case their presence in custody is not required in connection with any other case against them.

¶273

B. KEMAL PASHA, JUDGE.

¶274

ul/stu/-

Sabu and Others v. State of Kerala

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Sabu and Others v. State of Kerala

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