Allowed

Muhammed Rafi v. State of Kerala

Kerala HC30 Aug 2016CRL.A/307/2009

Case brief

AI extract

What is this about?

In a criminal appeal challenging conviction under Sections 143, 148, 447, and 324 IPC read with Section 149 IPC, the high court acquitted the appellant due to lack of corroboration for the sole eyewitness PW-2, who failed to inspire confidence and whose evidence regarding injuries was flawed.

What did the court decide?

The conviction and sentence passed by the court below are set aside and the appellant is acquitted.

Muhammed Rafi 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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TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938

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CRL.A.No. 307 of 2009 ( )

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SC 124/2007 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CP 27/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR

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APPELLANT(S)/ACCUED :

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MUHAMMED RAFI, S/O.IMBICHI BAVA ENINTEPURAKA HOUSE, MANGALAM AMSOM DESOM

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BY ADVS.SRI.C.V.MANUVILSAN

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SRI.P.K.KHALEEMUDHEEN SRI.P.G.SURESH SMT.K.VIDYA

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RESPONDENT(S)/RESPONDENT :

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STATE OF KERALA, REPRESENTED BYTHE SUB INSEPCTOR OF POLICE, TIRUR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

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BY PUBLIC PROSECUTOR SRI. C.S.HRITWIK

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

B. KEMAL PASHA, J

=================

Crl.Appeal No.307 of 2009 ================= Dated this the 30^th day of August, 2016

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The appellant is the first accused in Sessions Case No.124 of 2007 of the Additional Sessions Court (Adhoc-III), Manjeri, who stands convicted under Sections 143, 148, 447 and 324 IPC read with Section 149 IPC and sentenced to undergo simple imprisonment for one month each for the offences under Sections 143, 148 and 447 read with Section 149 IPC and simple imprisonment for three months and to pay a fine of `5,000/-, in default to undergo simple imprisonment for 15 more days for the offence under Section 324 IPC.

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The appellant along with A2 to A5 were

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Crl.A.No.307 of 2009 2

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charge sheeted by the Sub Inspector of Police, Tirur

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for the offences punishable under Sections 143, 147, 148, 447, 323, 324 and 308 IPC read with Section 149 IPC. A2 to A5 were not available for trial and therefore, the case against them was split up. The case against the appellant, who is A1, alone was proceeded with.

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The prosecution case is that on 11.01.2006 at 8.30 p.m., the accused formed themselves into an unlawful assembly armed with deadly weapons like iron-rod, committed trespass into the courtyard of the house of PW-2 and A1 beat PW-2 with the iron-rod and the other accused slapped and stamped PW-2.

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On the side of the prosecution, PW-1 to PW5 were examined, Exhibits-P1 to P5 were marked and MO-1 was identified. On the side of the accused, Exhibits-D1 to D4 series were marked.

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Heard the learned counsel for the appellant

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Crl.A.No.307 of 2009 3

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and the learned Public Prosecutor.

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The learned counsel for the appellant has

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argued that there is no evidence in the case, before the court below, to enter in a conviction and the court below ought not to have convicted and sentenced the appellant.

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It seems that even the facts narrated by the court below, with regard to the prosecution case, are not correct. PW-2 is the so called injured. Even though Exhibit-P5 wound certificate has been marked, the Doctor concerned, who had attended PW-2 was not examined. Exhibit-P5 was marked through PW-5, who was recalled and examined. When Exhibit-P5 has not been properly proved, that cannot be relied on. The contents of the wound certificate has no separate existence other than the opinion evidence of the person, who prepares the wound certificate. When the Doctor concerned was not examined, or any of the

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Crl.A.No.307 of 2009 4

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person, who could identify the signature of the Doctor concerned was not examined, Exhibit-P5 cannot be relied on for any purpose at all.

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According to PW-2, A1 beat him on his head

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with an iron-rod. He identified the iron-rod as MO-1. Further, according to him, the injuries were inflicted on him by other accused by using stick, sword etc. According to PW-2, he had undergone treatment at the Hospital as in-patient for 13 days. At the same time, PW-4, who had registered Exhibit-P4 First Information Report, has deposed that the scene of occurrence was pointed out by PW-2. Exhibit-P3 is the scene mahazar, which shows that the same was prepared on 12.01.2006, i.e., on the very next day. In Exhibit-P3, it has been mentioned that the scene of occurrence was pointed out by PW-2. The versions of PW-2 that he was in hospital as in-patient for 13 days cannot be believed. There is no evidence to show that he had

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Crl.A.No.307 of 2009 5

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undergone such a treatment.

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Even though, according to PW-2, the other

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members of his family had also occasion to witness the incident, no such witnesses were examined. The only available evidence in the matter is the evidence of PW-2. It has clearly come out that PW-2 is not trustworthy. When there is only the sole testimony of a witness for proving an incident, the rule of evidence requires corroboration. There is no corroborative piece of evidence available in the matter. It is not at all safe to convict the appellant on the basis of the sole testimony of PW-2. The court below has committed a grave error in convicting the appellant and sentencing him on the basis of the sole testimony of PW-2. The evidence of PW-2 does not inspire confidence. Apart from that, in the light of the evidence of PW-4, the evidence of PW-2 is not believable. There is no evidence even to show that PW-2 had sustained any

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Crl.A.No.307 of 2009

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injury. Matters being so, the conviction and sentence passed by the court below are liable to be set aside.

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In the result, this Crl.Appeal is allowed. The conviction and the sentence passed by the court below are set aside and the appellant is acquitted.

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Sd/- B. KEMAL PASHA, JUDGE.

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DSV/31/8/16

Muhammed Rafi v. State of Kerala

Case brief

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Muhammed Rafi v. State of Kerala

Case brief

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