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PETITIONER: KOCHU MAITHEEN KANNU SALIM

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       05/03/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      The  appellant   is  challenging  in  this  appeal  his conviction by  the High  Court under Section 302 IPC. He was tried alongwith  his brother Jalal for committing the murder of their  cousin- Ummer  in the  Sessions Case No. 100/86 in the Court of Sessions Judge, Trivendrum but was acquitted on the ground  that the  prosecution had  failed to  prove  its case.      In  order  to  prove  its  case,  the  prosecution  had examined PW  2 -  Surenderan Nair  who stated  that  he  was accompanying the  deceased when  the incident took place and that he  had seen  the assault  made on the deceased by both the accused.  His evidence was sought to be supported by the evidence of  PWs 3  and 4  and also  by PWs  7  and  8.  The prosecution had also relied upon the recovery of MO3 - knife at  the   instance  of   the  appellant.   The  trial  court disbelieved  the evidence of PW 2 as the supporting evidence was not  found to  be reliable and his own version was found inconsistent with the medical evidence. The trial court also held that  as PW  2 had  failed to  explain all the injuries that were  found on  the person  o the deceased it created a doubt regarding his having seen the incident. Evidence of PW 7 and  PW 8 was discarded by the trial court as it was found to be  inconsistent inter  se. The trial court did not place any reliance  on PW 1 who had not only not seen the incident but had denied to have male some statements contained in the FIR lodged  by him.  The evidence  of recover of MO3 - knife was not  believed because  the witness  who had attested the Mahazar, Ex.  p. 10,  was not an independent witness and the find of  human  blood  on  that  knife  after  16  days  was considered doubtful.      The High  Court did  not place  any reliance  upon  the evidence of PWS 1,6,7 and 8. It did not believe the evidence of PWs  1,7 and  8 as  regards the  oral  dying  declaration stated to  have been  made before  them by the deceased. It, however, held  that the  FIR- Ex. P.1 given by PW 1 could be relied upon  and as  it referred  to the presence of PW 2 at the time of the incident and to that extend it supported the evidence of PW 2. It also held that PW 2’s presence deserved

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to be  believed as  it was supported by evidence of PW 4. It also believed  the evidence regarding recovery of MO3- Knife as human blood was found on it.      Mr.  U.R.   Lalit,  learned   senior  counsel  for  the appellant, submitted  that the  High Court  has committed  a grave error in placing reliance upon the evidence of PW 2 on the ground  that the  FIR -  Ex. P.  1  also  supported  his version. he  further submitted  that the High Court has also overlooked certain aspects while considering the evidence of PW 2  and the  reasons given  for accepting his evidence are not proper.  he also  submitted that  the recovery  evidence ought not to have been believed as the attesting witness was not an independent and reliable person.      We  find  considerable  substance  in  the  contentions raised by  Mr. Lalit.  It is difficult to appreciate how the High Court  could consider FIR- Ex.P. 1 as correct when PW 1 himself stated  that certain  statements contained in it are not correct  and PW  1 himself  has not been believed. It is really doubtful whether the FIR was recorded at 9.45 p.m. on 1/12/85 as  stated therein.  The evidence discloses that the investigation in  this case  had started  after 3.00 p.m. on 2/12/85. If  really the  FIR was  recorded at 9.45 p.m. then the  investigation  would  have  started  much  earlier  and statement of PW 2 who was stated to be the eye witness would have been  recorded after  3.00 p.m.  on 2/12/85.  The  High court has not considered this aspect.      The  High   Court  has   also  not  considered  another important aspect,  viz. the conduct of PW 2. According to PW 2, the  deceases came  to his shop requested him to close it and then  both of  them went to the shop of PW 3 to purchase plantains and  thereafter both  of them  were walking on the road and  at that  time the  incident  took  place.  He  has further stated that thereafter he went near the intersection of the road and shouted that Salim and Jalal had given knife blows to Ummer. If his relations with Ummer were so friendly as stated  by him  then in  that case he would not have left Ummer like  that and  gone near  the junction  shouting that Salim and  Jalal had given knife blows to him but would have really taken him to his aunt’s place which was near by or to a hospital  for treatment  or gone to the police station for lodging a complaint. he did neither of these things and just disappeared till  next day  evening. This  conduct has to be regarded as inconsistent with his being with the deceased at the time  of incident. PW 3 from whose shop the deceased and PW 2  are stated to have purchased plantains did not support PW 2.  According to  PW 2, he had informed PWs 7 and 8 about the incident.  But their  evidence  has  been  found  to  be inconsistent both  by the  trial court  and the  High Court. That would  mean that  he  had  not  really  informed  those witnesses. All  this creates  a serious  doubt regarding his having seen the incident.      The High  Court also committed an error in relying upon the evidence  regarding discovery of MO3 - knife. It appears from the  evidence of  the attesting witness - PW 16 that he was a man of the police and not an independent person. if he was  thus   a  selected  person,  it  becomes  difficult  to appreciate how  the evidence  of the Investigation Officer - PW 20  could have  made the discovery evidence reliable. The trial court  has rightly  pointed out  that  no  independent person of  the locality  was associated with the preparation of Mahazar  - Ex.  P. 10  even though  as admitted  by PW 16 himself, there  were number  of houses  near the  place from where the knife was alleged to have been discovered.      Having scrutinised  the evidence,  we are  of the  view that the  High Court  was not  right in  setting  aside  the

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acquittal of  the appellant and convicting him under Section 302 IPC.  We, therefore,  allow this  appeal. The  order  of conviction and  sentence passed against him is set aside and he is acquitted of the charge levelled against him. His bail bonds are ordered to be cancelled.