REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1234 OF 2006

N.H. Muhammed Afras   ....Appellant

Versus

State of Kerala ....Respondent

CRIMINAL APPEAL NO. 1248  OF 2006

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

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1. Challenge in these appeals is to the judgment of a Division Bench of

the  Kerala  High  Court  disposing  of  two  separate  appeals  by a  common

order. The two appeals were filed by the present appellants who faced trial

for commission of offence punishable under Section 302 read with Section

34 of the Indian Penal Code, 1860 (in short the ‘IPC’).  They were found

guilty and convicted by learned Sessions Judge Kasaragod.

2. Background facts in a nutshell are as follows:

Babu (PW 1) on 3.9.1996 at about 9.30 pm closed his Bakery shop

and proceeded towards his  house in  his  scooter.   When he reached near

B.Ed Centre,  Nellikkunnu,  he saw a person  lying  on  the road  and three

persons were standing near him and among the three persons, two persons,

namely Ashraf (A1) & Afras (A2), stabbed the person lying on the road with

knife. He saw the incident with the help of the Head Light of his scooter.

He was able to identify that the persons were Ashraf (Al) & Afras (A2).

When they saw PW 1, they ran away from the place of occurrence.

Immediately he went to the shop of Ganghadharan, PW3, a local councillor

and informed this to him. Both of them came to the scene of occurrence.

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PW3 was able to identify the person lying and told PW1 that he was one

Jayachandran known to him. Since the police picket  was posted near the

place of occurrence, as there were frequent communal clashes, PW3 went to

the police picket post and informed them of the incident and then PW4 the

police officer and others came to the scene of incident and took the injured

to the Kasargod Taluk Hospital along with PW3. The Doctor at the hospital

examined the injured and declared him dead. Thereafter, PW1 went to the

Kasargod  Police  Station  and  lodged  the  complaint  Ex.Pl.   A  case  was

registered  by  Inspector  of  Police  (PW17)  as  Crime No.606  of  1996  for

offence  under  Section  302  read  with  Section  34  IPC  at  10.45  pm  on

3.9.1996  against  two  known  (Al  &  A2)  and  one  unknown  person.  On

4.9.1996, PW17 conducted inquest  and prepared inquest  report  (Ex.P13).

On 4.9.1996 doctor (PW15) conducted post mortem and issued postmortem

certificate Ex.P9. On 12.9.1996 A1 & A2 were arrested by PW 17. M.O. 1

knife  was  recovered  from A1.  After  completion  of  investigation  charge

sheet  was filed on 7.4.1997 for the offence under Section 302 read with

Section 34 IPC against both the accused. On behalf of the prosecution PWs

1  to  17  were  examined  Ex.P1  to  P16  were  marked.   The  accused  were

questioned under Section 313 of the Code of Criminal Procedure, 1973 (in

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short ‘Cr.P.C.’).   They denied the allegations.  On their behalf DW1, the

SHO was examined and Ex.D1 and Ex.D4 were marked.  CI Court Exhibit

was also marked.

After  completion  of  investigation,  charge  sheet  was  filed.  As  the

accused persons  pleaded innocence,  trial  was held.   As noted above,  the

prosecution  based  its  version  primarily  rested  on  the  evidence  of  Babu-

PW1.  The appellants highlighted before the trial court that the evidence of

PW1 is not believable.  It is highly improbable that he would identify two

persons in the light of the scooter with whom he was not acquainted. If the

names  of  the  accused  persons  were  known  to  the  witnesses,  more

particularly, the police constable who is supposed to have accompanied the

deceased, he would have certainly not stated that the deceased had suffered

injuries  at  the  hands  of  unidentified  persons.   There  was  considerable

unexplained delay in dispatch of the special report.  The distance from the

police station to the Court is hardly 250 yards but the report was received

after more than 24 hours after the FIR was purportedly lodged.  The trial

court referred to all the aspects to hold that they were all of no substance.  In

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appeal  the  stand  was  reiterated  but  the  High  Court  by  the  impugned

judgment rejected the same.

3. In support of the appeal learned counsel for the appellant submitted

that  the  fate  of  the  case  depends  only  on  the  acceptability  of  PW1’s

evidence.   It  is  stated  that  according  to  the  prosecution,  the  earliest

document is Ex. P1.  The complaint is stated to have been given by PW 1.

As per Exh. P1 Jayachandran was stabbed to death by Ashraf and another

man. In his statement under Section 161 Cr.P.C. which was referred to bring

out the contradictions, it was stated that two persons were standing near the

person who was lying on the road and were stabbing him and they were A1

& A2.  He admitted  to  have  stated  earlier  that  he  had  actually  seen  two

persons.  In his evidence in court he stated that he had seen three persons

assaulting  the  person  lying  on  the  road and  it  was  A1 who stabbed  the

victim and A2 who beat  with  stick.   The trial  court  disbelieved PW 1’s

evidence  with  reference  to  the  role  of  A2 beating  the  deceased  and  the

witness with the stick.  PW 17 the Investigating Officer initially denied to

have seen the intimation of the doctor (Ex. C1), but later on admitted that he

had received it.  He also accepted that in the said Exh. C1 it was clearly

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stated that at 10 PM an unidentified body was produced by the police.  In

view of this position, statement of PWs. 1&3 that they had informed PW4

about the identity of the deceased cannot be said to be true.  Added to that

there has been unexplained delay of considerable time gap between the time

when the FIR was supposedly lodged and the time it reached the court at a

short distance of 250 yards.

4. Learned  counsel  for  the  State  on  the  other  hand  supported  the

judgment of the High Court.

5. There  are  several  factors  which,  as  rightly  contented  by  learned

counsel for the appellant, corrode the credibility of the prosecution version.

Firstly,  the  combined  effect  of  the  evidence  of  PW 4,  Exh.C1  and  the

evidence  of  PW17  and  PWs.  1&3  is  that  there  is  marked  contradiction

between the statements of the witnesses and the documents. If in Exh. C1 it

was stated that an unidentified body was brought to the hospital, it is not

explained as to how and why PW 4 the police constable did not  tell  the

doctor  that  the  identity  was  known.   The  modes  of  investigation  of  the

police would be in different directions if an unidentified body is brought

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and when a known person’s body is brought.  It is strange that PW 4 who is

supposed to have known the name of the deceased from PWs 1&3 chose not

to tell the name of the deceased to the Doctor.  Further PW 17’s statement is

full of contradictions.  Initially he denied to have received Exh.C1, but later

on he accepted to have received the same.  Even thereafter he did not offer

any explanation as to how and why it was stated in the Doctor’s intimation

that an unidentified body was brought.  This could have been clarified had

the doctor being examined.  For reasons known to the prosecution, he was

not examined as a witness.  Though the High Court noted that there was no

dispute that the FIR was lodged at 10.45 PM, that is factually incorrect.  In

fact from the very beginning the accused persons have been taking the stand

that the FIR was not lodged at 10.45 PM as claimed, otherwise it would not

have reached the Court which is situated at a distance of 250 yards after

about 15 hours.  No explanation has been offered as to why this delay had

occurred.  Had any explanation been offered by the prosecution the Court

could have considered acceptability or otherwise of the explanation. That

has not been done.  Though ignorance of PW1 about the scooter number,

model  and  other  relevant  factors  may  not  in  all  cases  be  suspicious

circumstances, but in the present case this assumes importance.  

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6. Above  being  the  position,  the  inevitable  conclusion  is  that

prosecution  has  failed  to  establish  the  accusations,  and  appellants  are

entitled to acquittal which we direct.  The appellants be released forthwith

from custody unless required to be in custody in any other case.  The appeal

is allowed.

......................................... ...J.

(Dr. ARIJIT PASAYAT)

……..…………........................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi November 25, 2008

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