Indian Penal Code, 1860 – Section 302 r/w. 34 – Chance Witness – A careful reading of the evidence on record clearly 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.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[V. GOPALA GOWDA] AND [R.K. AGRAWAL] JJ.
26th July, 2016
CRIMINAL APPEAL NO. 952 OF 2010
BABY @ SEBASTIAN & ANR. ………APPELLANTS
CIRCLE INSPECTOR OF POLICE, ADIMALY ……RESPONDENT
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.
J U D G M E N T
V.GOPALA GOWDA, J.
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 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. 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 (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. 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. 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 nos.1, 2 and one Thressiamma for offence punishable under Section 302 read with Section 34 of IPC.
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. 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 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. 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 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. It was further contended by the learned senior counsel that the High Court has grossly erred in convicting both the appellants on the assumption 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. 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 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