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NON-REPORTABLE   IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 952  OF 2010

BABY @ SEBASTIAN & ANR.             ………APPELLANTS

Vs.

CIRCLE INSPECTOR OF POLICE, ADIMALY  ……RESPONDENT

J U D G M E N T

V.GOPALA GOWDA, J.       

1.1.   This  criminal  appeal  is  directed  against  the

impugned  judgment  and  order  dated  09.06.2009  in

Crl. Appeal No. 1898 of 2005 passed by the High

Court of Kerala at Ernakulam whereby it has allowed

the said criminal appeal filed by the respondent

herein,  by  setting  aside  the  order  of  acquittal

passed by the Court of the Addl. Sessions Judge,

Thodupuzha, in Sessions Case No.461 of 2001. The

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High Court convicted both the appellants for the

offence  punishable  under  Section  302  read  with

Section 34 of Indian Penal Code, 1860 (for short

‘IPC’)  and  has  sentenced  them  to  undergo

imprisonment for life with a fine of Rs.25,000/-

each.  In  default  of  payment  of  fine  they  shall

suffer rigorous imprisonment for two years each.  

2.2. Brief facts of the case are stated hereunder to

appreciate  the  rival  legal  contentions  urged  on

behalf of the parties:  

   The case of the prosecution is that one young

man named Jojo (since deceased), an auto rickshaw

driver by profession, was in romantic relationship

with a minor girl named Smitha (PW-2) daughter of

the  appellant no.1.  The relationship  between the

two was vehemently opposed by the girl’s family.

The  appellant  no.1  completely  ruled  out  the

possibility  of  marriage  between  the  two  and

allegedly  extended threats  to Jojo.  After having

found the strong opposition from the girl’s family

with  regard  to  their  marriage,  Jojo  and  Smitha

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(PW-2) planned to elope on 19.07.2000 at about 11

pm.  Accordingly,  both  started  at  about  11.45  pm

from  Mammattikkanam  Kara.  Both  the  appellants

sensed their plan and with a view to foil the same,

they  followed  and  intercepted  Jojo  and  Smitha

(PW-2).  

3.3. Thereafter,  allegedly  the  appellant  no.1  caught

hold of the neck of Jojo and pushed him down into

the  paddy  field  which  was  filled  with  mud  and

water. He sat on his body and the appellant no.2

caught hold of his neck from back side and immersed

his  face  in  the  muddy  water  again  and  again,

thereby strangulated and killed him. Manoj (PW-1)

residing a little away from the scene of occurrence

informed the matter to one Ravi. Ravi, Secretary of

the  local  Gram  Panchayat  in  turn  informed  the

matter to Idukki police Station, Rajakkad.  

4.4. Soon after, the Sub-Inspector (PW-31) reached the

place of occurrence and recorded the statement of

PW-1.  Thereafter,  FIR  No.  102  of  2000  was

registered  against  three  persons  viz.,  appellant

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nos.1, 2 and one Thressiamma for offence punishable

under Section 302 read with Section 34 of IPC.  

5.5. However, Thressiamma was discharged by the learned

Sessions Judge of all the charges against her. The

trial court commenced the trial against both the

appellants. During trial, the prosecution examined

32 witnesses to prove beyond reasonable doubt the

guilt of both the appellants on the charges. The

Trial Court after proper appreciation of evidence

on  record  by  its  judgment  and  order  dated

13.11.2003 acquitted both the appellants of all the

charges  levelled  against  them  holding  that  the

prosecution  case  against  the  appellants/accused

persons is not free from reasonable doubt.

6.6.  Aggrieved by the decision of the Trial Court the

respondent-State  approached  the  High  Court  of

Kerala at Ernakulam by filing Criminal Appeal No.

1898 of 2005. The High Court by its judgment and

order dated 09.06.2009 allowed the criminal appeal

by setting aside the acquittal order passed by the

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Trial Court.  The High Court has convicted both the

appellants under Section 302 read with Section 34

of IPC and sentenced them to undergo imprisonment

for life with a fine of Rs. 25,000/- each. Hence,

this appeal.

7.7. Mr.  M.  Karpaga  Vinayagam,  the  learned  senior

counsel on behalf of both the appellants contended

that the High Court has erred in convicting both

the appellants without adhering to the well settled

proposition  of  law  regarding  appeal  against

acquittal that the order of acquittal shall not be

generally interfered with by the appellate court in

exercise  of  its  jurisdiction  because  of  the

presumption of innocence of the accused who were

acquitted by the Trial Court by recording cogent

and  valid  reasons  on  proper  appreciation  of

evidence on record. It was further submitted by him

that  the  above  said  legal  principle  has  to  be

followed  by  the  appellate  court  considering  the

appeal against the judgment of acquittal, the same

can  be  interfered  with  only  when  there  are

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compelling  and  substantial  reasons  namely,  the

findings  and  reasons  recorded  on  the  charge  are

patently  either  perverse  or  erroneous  in  law  in

order  to  prevent  miscarriage  of  justice  in  the

case. In the present case, the Trial Court after

appreciating  the  evidence  on  record  has  rightly

acquitted  both  the  appellants  from  the  charges.

There  exists  no  legal  infirmity  in  the  judgment

passed by the Trial Court. However, the High Court

has  proceeded  on  surmises  and  conjectures  and

reversed the order of acquittal without examining

the  correctness  of  the  findings  and  reasons

recorded by the Trial Court on proper appreciation

of evidence on record. Therefore, he submitted that

the impugned judgment and order passed by the High

Court is unsustainable in law and deserves to be

set aside in the interest of justice by this Court

in exercise of its appellate jurisdiction.  

8.8. It  was  further  contended  by  the  learned  senior

counsel that the High Court has grossly erred in

convicting  both the  appellants on  the assumption

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that the presence of the appellants at the scene of

occurrence as stated by PW-6 has not been disowned

by him and it stands on a better footing. It was

further submitted by him that PW-1 has not seen the

incident. In fact in his statement recorded under

Section 164 of CrPC before the court he has denied

having  said  to  the  police  that  he  saw  the

appellants  or  any  other  person  at  the  place  of

occurrence. The prosecution has not been able to

discredit  the  version  of  this  witness  and  his

testimony  stands  uncontroverted.  In  such

circumstances the High Court has erred in holding

that the testimony of PW-1 should be disbelieved as

he was trying to help the appellants.

9.9. The learned senior counsel further contended that

the High Court has failed to appreciate the fact

that  the  testimony  of  PW-6  is  full  of

contradictions.  It  was  submitted  that  the  Trial

Court has rightly taken note of the fact that PW-6

after witnessing the incident did not inform the

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same  to  anybody  neither  to  the  police  nor  his

family members rather the next morning he reached

the  place  of  occurrence  and  on  police  enquiring

with the people gathered there as to whether anyone

witnessed the incident, he ventured and told the

police.  The  conduct  of  this  witness  in  not

disclosing  the  fact  that  he  has  witnessed  the

incident  to anybody  either immediately  or within

reasonable  time  from  the  time  of  occurrence  of

crime casts serious suspicion on his veracity and

reliability  of  his  evidence.  In  this  regard  the

learned  senior  counsel  placed  reliance  upon  the

decision of this Court in the case of Chanan Singh

v. State of Haryana1.

10.10. It  was  further  submitted  by  the  learned  senior

counsel that the High Court has erred by placing

reliance  on  the  testimony  of  PW-6  without

appreciating  the testimony  of PW-5  which further

casts a shadow of doubt upon the evidence of PW-6

whose evidence is accepted by the appellate court

1 (1971) 3 SCC 466

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for reversing the order of acquittal of both the

appellants passed by the Trial Court.  

11.11. It  was  further  contended  by  the  learned  senior

counsel that the High Court has failed to look into

the suspicious circumstances surrounding the case

of the prosecution. As per the statement of the

father of the deceased (PW-13), he left his house

with two bags, a gold chain and Rs. 25,000/- with

him. It is the case of the prosecution that all the

said  things  went  missing  and  nothing  has  been

recovered. The possibility of involvement of some

third  person  committing  the  crime  for  money  and

valuables  cannot  be  ruled  out.  Therefore,  the

appellant court should have given benefit of doubt

to  both  the  appellants  in  the  absence  of  any

concrete  and  cogent  evidence  to  prove  their

involvement in the crime.  

12.12. It  was  further  submitted  by  the  learned  senior

counsel  that  the  High  Court  has  not  noted  the

contradictions between the statements of PWs-13 and

16 as to the threat alleged to have been issued by

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the appellants and their family to the deceased.

The  High  Court  should  have  appreciated  the  fact

that PW-13 being the father of the deceased is an

interested witness and could not have been relied

upon  by  the  High  Court  in  the  absence  of

corroboration by other evidence on record. In fact,

PW-16, who is an impartial witness has contradicted

the statement of PW-13 by stating on oath that no

such threats were ever issued by the appellants or

any of their family members.

13.13. The learned senior counsel further contended that

the Trial Court has rightly taken note of the facts

narrated by PW-17 that he had left the locality

along  with  his  family  after  the  occurrence  and

shifting his residence to a place 80 kms away. It

was  further  submitted  by  him  that  the  aforesaid

strange behaviour on the part of PW-17 has to be

read with in conjunction with the fact that two

bags  carried  by  the  deceased  along  with  a  gold

chain and Rs. 25,000/- have gone missing and has

not been recovered as stated by the police. PW-17

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did  not  report  the  occurrence  to  anyone  and

absconded from the place of incident. His statement

was  recorded  by  the  police  after  6  days  of  the

incident.  The  aforesaid  fact  should  have  been

considered by the High Court with seriousness and

carefully  before  accepting  his  evidence.  The

evidence  of  PW-17  is  completely  unreliable  to

record  the  finding  of  the  guilt  of  both  the

appellants.

14.14. It  was  further  contended  by  the  learned  senior

counsel  that  in  the  present  case,  PWs

1,2,3,4,5,7,8,9,10,11,12,18,29,20,21 and 23 did not

support the prosecution case and they were declared

as  hostile  witnesses.  Therefore,  it  was  highly

inappropriate  on  the  part  of  the  High  Court  to

convict  both  the  appellants  on  the  basis  of

statements given by such aforesaid witnesses to the

police  under  Section  161  of  CrPC  alone  in  the

absence of any other corroborative evidence placed

on  record  by  the  prosecution.  In  this  regard

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reliance is placed upon the decision of this Court

in  Ramswaroop  v. State of Rajasthan2 and  Rajendra

Singh v. State of U.P.3.

15.15. In  his  further  submissions  the  learned  senior

counsel  assailed  the  fact  of  the  presence  of

injuries on the person of PW-2 and appellant No.2

upon which reliance is placed by the High Court in

reversing the finding of acquittal and convicting

both the appellants in the manner that the nature

of  the  wound  on  the  person  of  PW-2  was  incised

wound  caused  by  the  sharp  object  and  it  is  the

specific case of PW-2 that she sustained injuries

while she was cutting grass. This statement of the

above  witness  has  not  been  demolished  by  the

prosecution. Moreover, there is no recovery of such

sharp edged weapon from the place of occurrence or

from the house of the appellants. It is not even

the case of the prosecution that similar injuries

were  found  on  the  person  of  the  deceased.  As

regards the injuries sustained to appellant no.2, 2 (2004) 13 SCC 134 3 (2007) 7 SCC 378

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the  Court  has  not  even  gone  into  the  nature  of

injuries on his person. He further submitted that

the High Court has grossly erred in relying upon

the version of the prosecution that the injuries

could  have  been  caused  in  the  course  of  fight

between the deceased and the accused persons.

16.16. The learned senior counsel further contended that

the High Court should have re-appreciated the case

of prosecution that the Christmas cards and other

letters alleged to have been written by PW-2 to

Jojo have not been proved to have been sent by PW-2

as the same were never sent to handwriting expert

for examination to prove the fact that it was in

the handwriting of PW-2. In this regard he further

submitted that in the absence of any evidence to

show that the alleged letters and cards were sent

by PW-2 to the deceased-Jojo, the High Court has

erred in relying on the same to hold that both PW-2

and the deceased were in a romantic relationship

and terming the same as the reason for the incident

involving both the appellants.             

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17.17. While concluding his contentions the learned senior

counsel  submitted  that  in  convicting  both  the

appellants the High Court has ignored the settled

principles  of  criminal  law  that  every  person  is

presumed to be innocent until proved otherwise and

the standard of proof in criminal law is ‘proof

beyond  reasonable  doubt’,  in  the  guise  of

protecting the credibility of the judicial system.

It has based its reasoning only to ensure that the

people  in  whom  the  investigating  agencies  has

reposed faith should not be allowed to turn back at

the crucial moment. The High Court has relied upon

those  evidences  which  are  completely  unreliable.

Therefore, the impugned judgment and order deserves

to be set aside in the interest of justice by this

Court in exercise of its appellate jurisdiction.   

18.18. Per Contra, Ms. Liz Mathew, the learned counsel on

behalf  of  the  respondent  sought  to  justify  the

impugned  judgment  and  order  passed  by  the  High

Court on the ground that the same is well founded

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and is not vitiated in law.  It was submitted by

her that no interference of this Court is required

in exercise of its appellate jurisdiction.

19.19. It was contended by her that the High Court has

rightly appreciated the evidence of PW-6 in proper

perspective  by  holding  that  PW-6  took  time  to

disclose the incident to police for the reason that

he was a stranger to the locality. The observation

of the High Court is only an enunciation of normal

behaviour of any reasonable person which does not

require any other evidence.

20.20. With regard to the identification of the appellants

by PW-6, it was submitted by the learned counsel

that dock identification is substantive evidence.

This witness has clearly identified the appellants

as  perpetrators  of  the  crime.  It  was  further

contended that since this is not a case where the

witness could only have a fleeting glance of the

accused  persons,  the  absence  of  a  test

identification  parade  does  not  shake  the

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prosecution  case  in  any  manner.  It  was  further

submitted by the learned counsel that apart from

some trifling contradictions that may have arisen

on account of the long lapse of time, no material

contradictions have been brought from this witness

to shake the prosecution case despite having been

cross-examined  by the  defence counsel  at length.

The learned counsel further submitted that when the

incident is taking place in a public place, persons

passing by are the best witnesses and therefore,

their  evidence  could  not  be  discarded.  In  this

regard the learned counsel has placed reliance upon

the  decision of  this Court  in  Raju  v. State  of

Maharashtra4, para 6 of which reads thus:

“In the absence of anything elicited in the  cross-examination  to  indicate  that these  two  witnesses  were  interested  in the prosecution of the appellants we are in full agreement with the above-quoted observations of the High Court. The other criticism  levelled  by  the  trial  court that they were chance witnesses is also wholly  unmerited  for  in  respect  of  an incident  that  takes  place  on  a  public road,  the  passers-by  would  be  the  best

4 (1998) 1 SCC 169

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witnesses.  We  have,  therefore,  no hesitation in concluding that the claim of the above two witnesses that they had seen the incident cannot be disputed at all.”

21.21. With  regard  to  the  credibility  of  evidence  of

PW-17, it was submitted by the learned counsel that

PW-17  after witnessing  the incident  narrated the

same to a neighbour. A perusal of the testimony of

this witness reveals no concoction in his version

and  therefore  he  is  completely  reliable.  It  was

further submitted that the reason for this witness

to leave the locality along with his family members

and shifting his residence to a place 80 kms away

from  the  place  of  occurrence  has  been  duly

explained by him in his evidence. Being a tenant in

the premises belonging to the appellants, he moved

out of fear as the appellants had threatened to

kill him. He appeared before the police soon after

the  arrest  of  the  appellants  and  narrated  the

incident.  

22.22. It  was  further  contended  by  the  learned  counsel

that the non-recovery of the baggage, gold chain

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and Rs. 25,000/- which the deceased was carrying

can  at  best  be  stated  to  be  a  defect  in  the

investigation.  There  is  nothing  on  record  to

suggest  that  PW-17  has  any  connection  with  the

missing articles.    

23.23. The  learned  counsel  further  contended  that  the

appellants  were  named  in  all  contemporaneous

documents prepared after the occurrence, especially

the FIR which was lodged soon after the occurrence.

It is settled principle of law that prompt lodging

of FIR precludes the possibility of deliberation to

falsely implicate any person. A prompt FIR in a

criminal case and particularly in a murder case is

a vital and valuable piece of evidence. The learned

counsel has placed reliance upon the decision of

this  Court  in  Meharaj  Singh  v. State  of  Uttar

Pradesh5.

24.24. While  concluding  her  contentions  the  learned

counsel  submitted  that  the  statement  of  PW-6  is

duly  corroborated  by  statement  of  PW-17  and

5 (1994) 5 SCC 188

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admissible  portions  of  testimonies  of  other

witnesses  and  medical  evidence  in  this  regard.

There is no infirmity with the impugned judgment

and order passed by the High Court which requires

interference by this Court.  

25.25. We have heard both the parties at length and have

given  our  conscious  thought  to  the  material

evidence on record and the relevant provisions of

law. The question for our consideration is whether

the  prosecution  evidence  establishes  beyond

reasonable doubt the commission of the offence by

the accused-appellants under Section 302 read with

Section 34 of IPC.  

26.26. This Court in the case of  Bindeshwari Prasad

Singh alias B.P. Singh and Ors.  v. State of

Bihar and Anr.6 has held that in the absence of

manifest illegality and perversity in the trial

court’s findings and reasons resulting in grave

miscarriage of justice, the High Court is not

justified in interfering with the trial court’s

6 (2002) 6 SCC 650

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order in exercise of revisional jurisdiction.

The relevant para 13 reads thus:

“13.  The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification  for  the  High  Court  to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that  the  High  Court  should  not re-appreciate  the  evidence  to  reach  a finding different from the trial court. In  the  absence  of  manifest  illegality resulting  in  grave  miscarriage  of justice,  exercise  of  revisional jurisdiction  in  such  cases  is  not warranted.”

            (emphasis supplied by this Court)    

27.27. Further, this Court in Sunil Kumar Sambu Dayal

Gupta & Anr. v. State of Maharashtra7 has held that presumption of innocence is a human right.

The appellate court should not interfere with

the acquittal order passed by the trial court

merely  because  two  views  are  possible  in  a

given case. The relevant paras 38 and 39 read

thus: “38.  It is a well-established principle of  law,  consistently  re-iterated  and

7 (2010) 13 SCC 657

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followed  by  this  Court  is  that  while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial  Court  were  perverse  or  otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court  had  placed  the  burden  of  proof incorrectly  or  failed  to  take  into consideration  any  admissible  evidence and/or  had  taken  into  consideration evidence  brought  on  record  contrary  to law;  the  appellate  court  should  not ordinarily  set  aside  a  judgment  of acquittal in a case where two views are possible,  though  the  view  of  the appellate court may be the more probable one.  The  trial  court  which  has  the benefit of watching the demeanor of the witnesses  is  the  best  judge  of  the credibility of the witnesses.

39.  Every  accused  is  presumed  to  be innocent unless his guilt is proved. The presumption  of  innocence  is  a  human right.  Subject  to  the  statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The  nature  of  the  offence,  its seriousness and gravity has to be taken into  consideration.  The  appellate  court should  bear  in  mind  the  presumption  of innocence  of  the  accused,  and  further, that the trial court's acquittal bolsters the  presumption  of  his  innocence. Interference  with  the  decision  of  the Trial  Court  in  a  casual  or  cavalier manner where the other view is possible should be avoided, unless there are good

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reasons for such interference.”              (emphasis supplied by this Court)

The said view is further reiterated by this Court

in  the  case  of  Rathinam  @  Rathinam  V. State  of Tamil Nadu & Anr.8 The relevant para 30 reads thus:  

“30.  It  is  now  beyond  dispute  that interference in such an appeal should be made sparingly in a situation where the findings of the High Court are perverse and not possible on the evidence and if two views are possible the one leading to acquittal  should  not  be  disturbed.  The presumption of innocence which is always raised in favour of an accused is further strengthened by an acquittal and bolsters the claim of the accused. The aforesaid time-honoured  principles  have  been recently set out in the judgment of this Court in     Arulvelu and Anr. v. State....”         (emphasis supplied by this Court)

28.28. In  the  instant  case,  the  High  Court  is  not

justified  in  holding  PW-6  and  PW-17  are  as

reliable  witnesses  after  re-appreciating  the

evidence  on  record  when  there  is  absence  of

manifest  illegality  and  perversity  in  the

acquittal order passed by the Trial Court.

29.29. A careful reading of the evidence on record clearly

8 (2011) 11 SCC 140

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highlights  the  material  contradictions  and

discrepancies  in  the  prosecution  evidence

especially  the  testimonies  of  Mathai  (PW-6)  and

Eldose (PW-17) upon which strong reliance has been

placed by the High Court in convicting both the

appellants  by  setting  aside  the  acquittal  order

passed by the Trial Court. From the testimony of

PW-6 one thing is clear that he is a chance witness

who  happened  to  have  witnessed  the  incident  by

chance. It is a well settled legal principle that

the evidence of a chance witness cannot be brushed

aside simply because he is a chance witness but his

presence  at  the  place  of  occurrence  must  be

satisfactorily explained by the prosecution so as

to make his testimony free from doubt and thus,

reliable . This Court in the case of Jarnail Singh

v. State of Punjab9 has elaborately explained the

reliability of a chance witness as under:

“21. In Sachchey Lal Tiwari v. State of U.P. this  Court  while  considering  the evidentiary value of the chance witness

9 (2009) 9 SCC 719

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in a case of murder which had taken place in a street and passerby had deposed that he had witnessed the incident, observed as under:

If the offence is committed in a street only passer-by will be the witness.  His  evidence  cannot  be brushed  aside  lightly  or  viewed with suspicion on the ground that he  was  a  mere  chance  witness. However,  there  must  be  an explanation for his presence there.

The  Court  further  explained  that  the expression  “chance  witness”  is  borrowed from countries where every man's home is considered his castle and every one must have  an  explanation  for  his  presence elsewhere or in another man's castle. It is  quite  unsuitable  an  expression  in  a country like India where people are less formal and more casual, at any rate in the matter of explaining their presence.

22.  The  evidence  of  a  chance  witness requires  a  very  cautious  and  close scrutiny  and  a  chance  witness  must adequately  explain  his  presence  at  the place  of  occurrence     (  Satbir  v.  Surat Singh  ,     Harjinder  Singh  v.  State  of Gujarat  ,     Acharaparambath  Pradeepan  and Anr.  v.  State  of  Kerala     and     Sarvesh Narain  Shukla  v.  Daroga  Singh)  . Deposition  of  a  chance  witness  whose presence at the place of incident remains doubtful  should  be  discarded (vide     Shankarlal  v.  State  of Rajasthan).”  

           (emphasis supplied by this Court)

30.30. However, in the instant case, the presence of PW-6,

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a chance witness, at the place of occurrence is not

free from doubt. PW-6 in his testimony has stated

that  he  along  with  PW-5  while  proceeding  from

Rajakkad to Kuthungal at about 11.45 pm witnessed

the occurrence. He has accounted for his presence

at the place of occurrence by stating thus:

“PW-5  Thomas  asked  me  a  loan  of  Rs. 500/-.  He  requested  for  money  5/6  days back. I had agreed to pay him the money, as soon as I get it from the contractor. Had  not  stated,  when  would  I  get  the money.  After  asking  me  for  a  loan,  he reminded  me  about  it  twice.  Had  told Thomas that we would meet at Rajakkad. I went to Rajakkad, reaching there at 6.00 am  along  with  PW-5  I  went  to  the contractor  K.S’s  office.  The  contractor is  K.S.  Kunju  Mohammed.  Had  met  PW-5 Thomas that day. That was at Rajakkad. We sat at the room of K.S. for an hour. We spent there from 6.00pm to 7.00pm. Since we  could  not  meet  K.S  we  went  to  the cinema at the nearby theatre. After the show was over, we again went to the room of K.S. K.S could not be met. We took food  from  fast  food  (thattukada)  shop. After that when we were going home, we witnessed incident.”  

However,  PW-5  has  not  supported  this  version  of

PW-6. PW-5 in his testimony has stated that he did

not  witness anything.  Further, the  deposition of

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PW-6 is full of contradictions. On the one hand he

says: “...Two  persons  were  standing  in  the field. One among them was searching for something. After a while a head came out of  slush.  A  person  wearing  shirt  again pushed the head into the slush forcibly. A-1 standing in the dock was the person without shirt, and A-2 is the person who was wearing the shirt who pushed the head into the slush) is in the dock.”  

On the other hand, while deposing he says: “...I  had  no  personal  knowledge  when  I left as to who attacked whom.”

31.31. Further, the conduct of PW-6 in not disclosing the

incident  either  to  police  or  to  anyone  in  the

village creates a suspicion and renders his version

of the incident is doubtful. PW-6 according to his

testimony left the place of occurrence quietly and

did not inform about the incident to anyone. The

relevant portion from his testimony reads thus:

“...I did not tell anybody at anybody at the house what all I saw then. I did not make  any  noise  (cry  out);  nor  did  I attempt  to  save  the  drowning  person. Before  telling  the  police,  I  had  not spoken about the event to anybody else. That was on the next day at the scene of occurrence...      xx                xx              xx

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...Except  for  the  statement  to  the police,  I  am  speaking  about  the occurrence only before the court now. If I were not questioned by the police, I would  not  have  spoken  about  the occurrence which I saw to anybody else. I went to the scene of occurrence and stood there. That was on the next day. Police invited those who had seen the occurrence to come forward and state the facts. At this  juncture,  I  went  forward  and explained the facts.”  

From the aforesaid evidence, it is clear that PW-6

has acted in an unnatural manner. In this backdrop

this  Court  is  of  the  opinion  that  the  learned

senior counsel for both the appellants has rightly

pointed out that this unusual behaviour on the part

of PW-6 in not telling anyone about the incident of

murder which he allegedly witnessed certainly casts

a serious doubt upon his testimony. Therefore, the

Trial Court has rightly rejected the evidence of

PW-6 stating that the same is highly unreliable as

it has failed to inspire confidence with regard to

the presence of PW-6 at the place of occurrence at

the time of incident.  Hence, the Trial Court has

rightly held thus:

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“6....His  conduct  in  immediately  not disclosing the fact that he witnessed the murder to anybody casts a suspicion on his veracity...According to PW-6 he had walked 3.5 kms at about midnight and reached the place of occurrence when the incident was happening and without making any attempt to prevent the murder he just proceeded to his house still 3.5 kms away by walk. In the considered opinion of this court the above evidence  of  PW-6  does  not  inspire confidence. It will be highly unsafe to rely upon the evidence of PW-6.”

32.32. As far as evidence of PW-17 is concerned, it is

clear from the material placed on record that he is

not an eye-witness to the incident. The Trial Court

has rightly dealt with the evidence of PW-17 as

under:

“7. PW 17 is the other witness who has given  incriminating  evidence  against  the accused. According to him he had resided at the vicinity of the place of occurrence at  the  relevant  period.  On  the  date  of occurrence namely on 19.7.00 at about 10 pm the deceased came to his house with two bags. The deceased told him that he was going  to  live  together  with  his  lover Smitha (PW2). At about 11 pm he went away with  the  two  bags.  After  sometime  the deceased and PW2 Smitha came there. Then he and his wife were standing near the way near  their  house  as  directed  by  the deceased.  The  deceased  and  PW2  bid farewell and went away and PW 17 and wife

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returned to their house and slept. After about  one  hour  somebody  knocked  on  the door and PW17 opened the door and saw the discharged accused. Thressiamma who is the mother  of  accused  No.1  there.  Then Thressiama told him that they were going to  hospital  with  Shajan  (A2).  She requested PW 17 to come to her house. She further told that their child had eloped with one person and they had killed him. PW 17 went to the house of the accused. Then he saw PW 2 (Smitha) standing there weeping. There was mud on her body. Smitha told  that  Jojo  Chettayi  was  killed  by father and brother. PW 17 immediately went to the paddy field and saw the body of the deceased. He again went to the house of the accused. Then the discharged accused Thressiamma gave some money to accused No. 1.  After  getting  the  money  the  accused persons went away.

8. The  above  is  the  circumstantial evidence  furnished  by  PW  17  Eldhose against  the  accused.  Of  course  the statements  attributed  by  him  to Thressiamma and Smitha cannot be covered by  any  section  of  the  Evidence Act/concerned with the relevancy of facts and  so  the  said  statements  cannot  be considered legal evidence. PW 17 was very vehemently cross examined on behalf of the accused.  He  admitted  that  immediately after the occurrence he himself and family left the place and shifted his residence to a place named Thalakode which is 80 kms away  from  the  place  of  occurrence.  He admitted that for the next 5 days of the occurrence himself and his wife were not present  in  the  house.  Immediately  after that they shifted resident to the place 80

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kms away from the place of occurrence. The suggestion by the defence to this witness is  that  the  deceased  had  two  bags  a considerable amount of money and some gold ornaments  were  with  him  and  PW  17  is involved in the death of the deceased. Of course PW 17 denied the said suggestion. From the evidence of PWs 13 to 15 who are the  father,  mother  and  brother  of  the deceased it is clear that the deceased had some ornaments and a considerable amount of money with him. He had bags also with him. The bags and the money have not been recovered by the investigating agency. The prosecution has no case that the accused persons murdered the deceased for taking these valuable. The strange conduct of PW 17  in  leaving  the  locality  immediately after  the  occurrence  and  shifting  his residence from there to far away place 80 kms  from  the  place  of  occurrence  is suspicious.  Of  course  in  re-examination the prosecution has made desperate attempt to bring out from him that as the accused threatened him he shifted his residence. But  he  has  not  stated  such  a  very important fact before police and the said omission  obviously  amounts  a  material contradicting  and  so  above  version  of threat from the accused cannot be relied upon.  As  already  mentioned  above  the conduct of PW 17 in immediately going into a sort of abscondence for the ensuing 5 day of the murder and there after shifting his  residence  to  a  distance  of  80kms appears  to  be  very  suspicious.  Further admittedly the relatives of accused etc. are residing in the neighbourhood.  PW 17 admitted  that  he  did  not  report  these facts  to  any  of  them.  Considering  all these facts and circumstances  this court

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is  of  the  view  that  it  will  be  highly unsafe to act upon the evidence against the accused furnished by PW 17 Eldhose.”  

                 (emphasis laid by this Court)                      

33.33. Further the fact that the age of injuries present

on the person of PW-2 and appellant no.2 matches

with the approximate time of incident in no way

carves out an active role on the part of both the

appellants in commission of murder of Jojo.    

34.34. The  material  evidence  on  record  does  not  reveal

anything  which  incriminates  both  the  appellants.

Further, the depositions of parents of the deceased

i.e., PW-13 and PW-14 in no way implicate both the

appellants  as  the  offenders.  Rest  of  the

prosecution witnesses have turned hostile and have

not  supported  the  prosecution  story  on  material

facts to show that both the appellants are involved

in the crime as alleged against them.  35.35. In the instant case, the prosecution has failed to

prove  the  guilt  of  both  the  appellants  beyond

reasonable doubt. Though the prosecution witnesses

Nos.  1,2,3,4,5,7,8,9,10,11,12,18,29,20,21  and  23

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have turned hostile, their alleged statements made

to the police under Section 161 of CrPC were not

confronted  to  them  and  marked  as  exhibits  and

further the I.O. has not spoken in his evidence

anything about the alleged statements of the above

hostile  witnesses  recorded  under  Section  161  as

held by this Court in three Judge Bench in the case

of   V.K. Mishra  v. State of Uttarakhand10. Thus,

placing  reliance  upon  their  statements  under

Section 161 by the High Court to record the finding

of conviction is erroneous in law. The High Court

has failed to appreciate the same     in arriving

at different conclusion other than the Trial Court

in  exercise  of  its  appellate  jurisdiction.

Therefore,  the  impugned  judgment  and

order passed by the High Court must be set aside by

this  Court  in  exercise  of  its  appellate

jurisdiction.

36.36. For the reasons stated supra, this criminal appeal

is allowed. The impugned judgment and order dated

10  (2015) 9 SCC 588 (paras 16-19)

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09.06.2009 passed by the High Court of Kerala at

Ernakulam in Criminal appeal No. 1898 of 2005 is

set aside and the judgment and order of acquittal

passed by the Trial Court is restored. Both the

accused-appellants are acquitted of all the charges

levelled  against them.  Since both  the appellants

are in jail, the jail authorities are directed to

release them forthwith if they are not required in

connection with any other case.

       …………………………………………………………J.             [V. GOPALA GOWDA]

              …………………………………………………………J.         [R.K. AGRAWAL]

New Delhi,                                        26th July, 2016  

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ITEM NO.1A-For Judgment    COURT NO.8            SECTION IIB                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal  No(s).  952/2010 BABY @ SEBASTIAN & ANR.                         Appellant(s)                                 VERSUS CIRCLE INSPECTOR OF POLICE ADIMALY             Respondent(s) Date  :  26/07/2016  This  appeal  was  called  on  for pronouncement of JUDGMENT today. For Appellant(s)  Mr. M. Karpaga Vinayagam, Sr. Adv.

Mrs. V.S. Lakshmi, Adv.                      Mr. A. Venayagam Balan,Adv.                       For Respondent(s)  Mr. C.K. Sasi, Adv.                      Ms. Liz Mathew,Adv.                             

Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice R.K. Agrawal.

The appeal is allowed in terms of the signed Non-Reportable judgment.

Both the accused-appellants are acquitted of all the charges levelled against them. Since both the appellants are in jail, the jail authorities are directed to release them forthwith if they are not required in connection with any other case.

        (VINOD KR.JHA)            (SUMAN JAIN)

  COURT MASTER       COURT MASTER     (Signed Non-Reportable judgment is placed on the file)