http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: CHACKO ,  JACOB

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       29/04/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANVATI.J.      This appeal,  filed under  Section 2(a)  of the Supreme Court (Enlargement  of Criminal Appellate Jurisdiction) Act, 1973 and  under Section  379 of the Criminal Procedure Code, 1973 is  directed against  the judgment of the High Court of Kerala in  Criminal  Appeal  No.  58/1985.  The  High  Court convicted the  appellant for  the offences  punishable under Section 302  read with  34 IPC, 324 IPC and 27 of the Indian Arms Act.      The appellant was tried along with three other accused. The charge against them was that on 24.12.1981 at about 9.30 p.m. they  had gone  to  the  house  of  Pullery  John  (the deceased) and  challenged t  he inmates of the house to come out. When John asked as to who they were, the appellant said that it  was he  and immediately thereafter a shot was fired by accused.  Thambi which injured John and caused his death. P.Ws 1 t 5 were present in the verandha of the house at that time. P.W.  2 flashed  his torch  to find  ut  wh  were  the assailants. Immediately  thereafter appellant  fired a  shot which caused injuries to P.W. 1, 2 and 4. As a result of the cries raised  by the  witnesses and  the  neighbours  coming there all the accused ran away from that place.      The trial court disbelieved the evidence of P.Ws 1 to 6 on the  grounds that  their relation  with the  accused were inimical, they  had made  consistent improvements  and their evidence stood  contradicted by  their police statements and the F.I.R. In the F.I.R. Exhibit P.1, presence of P.W. 5 was not referred  to and  it was stated that both the shots were fired by the appellant. Therefore, the trial court held that in all  probability  the  accused  were  implicated  falsely because of previous enmity.      Aggrieved by  their acquittal  the State filed Criminal Appeal No.  58/1985. The  Original informant  also  filed  a revision petition to the High Court against their acquittal. The appeal  and t  he revision  petition were heard together and were  disposed of  by a  common judgment. The High Court found appreciation  of the  evidence by  the Sessions  Court unreasonable and  it also  noticed  that  various  important aspects were  not at  all considered by the trial court. The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

trial court  without considering  the evidence of P.W. 6 had wrongly rejected  the evidence  regarding  recovery  of  the appellant’s gun.  The explanation given by the eye witnesses as regards  the contradiction that both the shots were fired by the  appellant was not considered by the trial court. The High Court  after re-appreciating the evidence held that the evidence of  P.Ws   1 to 4 deserved to be accepted as it was consistent and  their presence  at the place of incident was natural. Accepting  their evidence  the High Court held that all the  accused had  gone  together  t  the  house  of  the deceased, at that time the appellant and accused Thambi were armed with  guns, and after reaching there the appellant had challenged John  to come  out. It  further held  that  these circumstances clearly  established that  the  appellant  and Thambi were  acting in furtherance of their common intention of committing  murder of  John and  causing  hurt  to  other members of  his family. The High Court, therefore, set aside the acquittal  of the  appellant  and  Thambi  but  did  not convict Thambi  as he  had died  during the pendencey of the appeal. The High Court convicted the appellant alone for the offences stated  above. As  no over  act  was  done  by  the remaining two accused their acquittal was confirmed.      Aggrieved by  his conviction  and the order of sentence the appellant has preferred this appeal. It was contended by the learned  counsel for  the appellant that the evidence of eye witnesses ought not to have been believed as all of them stood contradicted  by their  police statements wherein they had stated  that both  the shots were fired by the appellant whereas before  the Court  they deposed  that the first shot was fired  by Thambi  and  second  shot  was  fired  by  the appellant. They  had changed  their version  in view  of the report of  the ballistic  expert which  shows that  the  two shots were  fired from  two different  guns. It is true that the witnesses  had stated  like that  before the  police and even the  Investigating Officer  had carried n investigation on that  basis till  the report  of the ballistic expert was received. What the Sessions Court had failed to consider and what the High Court has accepted is the explanation given by the witnesses  that when  the first  shots was  fired it was dark and  the witnesses  had not  seen who  had fired it but when P.W. 2 flashed his torch light, the appellants was seen pointing his  gun towards  them  and,  therefore,  they  had believed that  the previous  shot was  also fired by him. In view of  this explanation  it was  not proper  for the trial curt to  discard their  evidence on  the ground  that  their evidence stood contradicted by their previous statements and that indicated  that they  were trying  to implicate falsely both those  accused. Neither  before  the  trial  court  nor before the  High Court identity of the accused including the appellant was  challenged. P.Ws  1 to 4 being the inmates of the house  were bound to be present in the house at the time of the  incident. P.Ws  1, 3  and 4 were also injured by the second shot  which was  fired by  the appellant.  Therefore, there was no good reason for discarding their evidence.      It  was   next  urged   that  the   High  Court  having disbelieved the  evidence of  P.Ws 1  to 4  as  regards  the remaining two  accused ought not to have accepted it against Thambi   and   the   appellant   without   any   independent corroboration.  It  was  also  contended  that  even  though independent witnesses  were available they were not examined by the  prosecution and, therefore, also the appellant ought not to  have been convicted on the basis of the testimony of the interested  witnesses only.  If  the  prosecution  after examined the injured eye witnesses thought it unnecessary to examining other  witnesses it cannot be inferred that it did

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

so with  an oblique  motive.  No  conjection  was  taken  by defence when  they were  dropped. No  such point  was raised before the  High Court. The appellant, therefore, cannot now make any grievance in this behalf. The remaining two accused were given benefit of doubt on the ground that possibly they had gone along with the appellant as they were his employees and were  told to  accompany him.  They might not have known where and  for which  purpose the appellant was taking them. The reasoning  of the  High Court  with respect to them does not appear to be correct but there being no acquittal appeal against them,  we need  not pursue  this point  any further. Their acquittal,  therefore, cannot  be regarded  as a  good ground for  holding  that  the  eye  witnesses  had  falsely implicated them and therefore their evidence did not deserve to be accepted without independent corroboration.      As  we  do  not  find  any  substance  in  any  of  the contentions raised  by the learned counsel for the appellant this appeal  is dismissed.  As the appellant was released on bail by  this Court  his bail is cancelled and he is ordered to surrender  to custody  to serve out the remaining part of his sentence.