Sajeer @ Habeeb vs State Of Kerala on 27 November, 2024

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Kerala High Court

Sajeer @ Habeeb vs State Of Kerala on 27 November, 2024

The judgment of conviction and order of sentence passed against accused Nos.2 to 4 in S.C. No.1530/2012 on the file of Additional Sessions Court-VI, Thiruvananthapuram, for offences punishable under Sections 120B, 341, 324, and 302 r/w Section 34 of the Indian Penal Code are under challenge in this appeal.

2. The facts of the case in brief are as follows:

Accused Nos. 1, 2 and 4 were harboring a grudge against one Syedali for allegedly murdering their uncle. Motivated by this feud, they entered into a criminal conspiracy with accused No. 3, a relative, to murder Syedali. In pursuance of this conspiracy and in furtherance of their common intention, on 06.09.2010 at 2:15 p.m., when Syedali exited a purdah shop where he had gone with his sister, niece, and nephew, and was speaking to his mother on the phone in front of the shop, the 1st Crl. A. No.1376 of 2018 4 2024:KER:89018 accused rushed towards him, shouting threats to kill him, and stabbed him in the left flank, causing grievous injuries. As Syedali fled into a mobile shop to escape, accused Nos. 1 to 4 chased him. Once inside the mobile shop, accused Nos. 3 and 4 restrained him, while the 2nd accused struck him on the head with a soda bottle taken from a nearby juice shop. Subsequently, accused Nos. 1 and 2 inflicted further injuries on Syedali by striking his head and neck with a knife and the broken soda bottle. PW2, Syedali's sister, attempted to intervene to save her brother. However, one of the assailants kicked her down, causing injuries. Syedali, however, succumbed to his injuries on the spot. The accused are therefore alleged to have committed offences punishable under Sections 120B, 341, 324, 354, and 302 r/w Section 34 of the IPC.

3. On completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court-II, Thiruvananthapuram. As the case was one triable exclusively by the Court of Sessions, the learned Magistrate after complying with all the necessary formalities committed the case to the Court of Session, Thiruvananthapuram. After taking cognizance, the learned Sessions Judge Crl. A. No.1376 of 2018 5 2024:KER:89018 made over the case for trial and disposal to Additional Sessions Court-VI, Thiruvananthapuram. In the course of the trial, the 1st accused died, and hence charge against him was abated. After trial, accused Nos.2 to 4 were found guilty for offences punishable under Sections 120B, 341, 324 and 302 r/w Section 34 of the IPC and convicted and they were sentenced to undergo imprisonment for life and to pay a fine of Rs.2,00,000/- (Rupees two lakhs only) each with a default clause to undergo rigorous imprisonment for one year for offence punishable under Section 302 r/w Section 34 of the IPC. Additionally, the accused were sentenced to rigorous imprisonment for life each for offence punishable under Section 120B of the IPC. Furthermore, the accused were slapped with separate sentences for offences punishable under Sections 341 and 324 r/w Section 34 of the IPC. However, the substantive sentences were ordered to be run concurrently. The said judgment of conviction and order of sentence is under challenge in this appeal.

4. The prosecution in its bid to prove the charge levelled against the accused examined 34 witnesses as PW1 to PW34. Exts.P1 to P92 were exhibited and marked and MO1 to MO21 were produced and Crl. A. No.1376 of 2018 6 2024:KER:89018 identified. After completion of prosecution evidence when the accused were questioned under Section 313 of the Cr.P.C., they denied all the incriminating materials brought out against them in evidence. On finding that the accused could not be acquitted under Section 232 of the Cr.P.C., they were called upon to enter their evidence. On the side of the defence, DW1 to DW5 were examined and marked Exts.D1 to D6 including the contradictions brought out in the statements of prosecution witnesses.

5. The FIR in this case was lodged based on the statement given by the sister of the deceased (PW2) to the SHO, Fort Police Station. When the sister of the deceased was examined as PW2, she vividly recounted the incident that led to her brother's death. According to PW2, during the period of occurrence in this case, she along with her mother and siblings were residing together in their family house. On 06.09.2010, between 2 and 2.30 p.m., she along with her daughter and brother Syedali arrived at a Purdah shop in Rubi Nagar to purchase Purdah for her mother. After arriving at the shop, her brother stepped out of the shop to call their mother over the phone to confirm whether she preferred a Muftha or a shawl. While she and her daughter were selecting a Purdah, she heard an Crl. A. No.1376 of 2018 7 2024:KER:89018 unusual sound from outside the shop. Upon hearing the same, she came out of the shop and saw the 1st accused stabbing her brother using a knife. The assailants then wrongfully restrained her brother and the 1st accused dragged her brother to a nearby mobile shop. Then the 2nd accused took a soda bottle and struck her brother's head. Two other persons wrongfully restrained her brother inside the shop. Meanwhile, the 2nd accused broke the soda bottle and stabbed the neck of her brother using the same. When she intervened, the 2nd accused caught hold of her and threw her, causing injuries on the left side of her forehead.

6. After the incident, Shafeek (A1), Sajeer @ Habeeb (A2), Hussain Abbas (A3) and Rafeek (A4) fled towards Padmanabha Theatre. PW2 deposed that she had prior acquaintance with 1st and 2nd accused, as they had visited her house on previous occasions. The 1st accused used a folding knife to stab her brother and MO1 is the said knife. Her brother was restrained by Hussain Abbas and Rafeek (A3 and A4). PW2 duly identified all the accused before the court. According to PW2, the 3rd accused was wearing a khaki shirt at the time of the incident and MO2 is the said shirt. Her brother was wearing a blue colour check shirt and Crl. A. No.1376 of 2018 8 2024:KER:89018 pants, which are MO3 and MO4 respectively. She was wearing an orange colour top and a black bottom at the time of the incident. PW2 identified the churidar top and marked it as MO5. After the incident, she gave a statement to the Police, which is marked as Ext.P1. Her brother was an accused in a murder case, where the victim was the uncle of the accused Nos. 1, 2, and 4 in this case.

7. When the niece of the deceased was examined as PW1, she gave evidence in the following lines:

During the period of the incident, she was a X-standard student at Girl's High School, Manakkad. On 06.09.2010, she along with her mother (PW2), cousin, and uncle arrived at a shop in Ruby Nagar named 'Haleema Purdahs' to buy a Purdah for her grandmother. In order to enquire about the size of Purdah, her uncle stepped out of the shop with her mother's mobile phone. After a few minutes, she heard the distinct clack of sandals echoing from outside the shop. Upon hearing the same, she came out of the shop. Then she saw the accused Nos.1 to 4 wrongfully restraining his uncle and the 1st accused stabbing on her uncle's flank with a knife. The accused stabbed her uncle repeatedly. When her uncle ran into a nearby Crl. A. No.1376 of 2018 9 2024:KER:89018 mobile shop to save his life, the 3rd and 4th accused rushed in and wrongfully restrained her uncle. The 2nd accused struck her uncle's head with a soda bottle taken from the nearby shop. Thereafter, the 2nd accused Habeeb stabbed her uncle's neck with a broken soda bottle causing him to fall inside the shop. When her mother intervened, the 2nd accused pushed her down causing her to sustain an injury on her neck.

After ensuring her uncle's death, the accused fled the scene. The 1st and 2nd accused had previously visited her house along with her uncle. PW1 identified all the accused before the court as well as MO1 to MO5. Her uncle is an accused in the case registered in connection with the murder of the uncle of accused Nos.1, 2 and 4.

8. The Circle Inspector of Police, Fort Police Station, who was the Investigating Officer and examined as PW33, testified as follows:

He took over the investigation of this case on 06.09.2012. As part of the investigation, he visited the crime scene along with a Scientific Assistant and prepared Ext.P20, the scene mahazar. Bloodstains were collected using cotton gauze from the scene of occurrence with the assistance of the Scientific Assistant. Pieces of a broken bottle, two brick Crl. A. No.1376 of 2018 10 2024:KER:89018 pieces, a pair of chappals, and a soda bottle found at the scene were seized. The items seized, as recorded in Ext.P20 mahazar, were identified by PW33 in court. PW33 stated that he conducted an inquest on the deceased's body, which was kept in the mortuary of the Medical College Hospital, Thiruvananthapuram, in the presence of independent witnesses. Ext.P41 is the inquest report. The body was subsequently forwarded for a postmortem examination. He deputed the Assistant Sub Inspector of Police, Fort Police Station, to inquire about an autorickshaw bearing registration No. KL-01W-3867, which the accused allegedly used to reach and flee from the scene. Meanwhile, the 1st and 2nd accused surrendered before the court. Accordingly, he sought permission from the jurisdictional court for their formal arrest. After securing the accused in police custody, he interrogated them. Based on a disclosure statement given by the 1st accused, a mobile phone used by the 2nd accused to summon the 1st accused to the scene was recovered. Ext.P48 is the recovery mahazar for this mobile phone (MO21), and Ext.P48(a) is the relevant portion of the 1st accused's confession recorded in the mahazar. Similarly, based on a confession statement given by the 1st and 2nd accused, a blood-stained Crl. A. No.1376 of 2018 11 2024:KER:89018 knife was recovered from the house of the 2nd accused. This recovery was documented in Ext.P72 mahazar. The relevant portion of the joint confession leading to the recovery of the knife is marked as Ext.P72(a). MO1 is the recovered knife. PW1, the deceased's sister, produced a churidar top, which she had been wearing during the incident at the police station, was seized and recorded in Ext.P42 mahazar. MO5 is the churidar top. Subsequently, he received secret information that the autorickshaw used by the accused to flee from the scene had been abandoned near the Anayara World Market. The autorickshaw was seized as per Ext.P54 mahazar. Upon inspection, a plastic cover was found above the driver's cabin, containing two CDs, an RC book, a permit, a copy of the insurance policy, a purse, and several visiting cards. Additionally, an Election ID card belonging to the 3rd accused was found inside the plastic cover. According to PW33, a blood-stained khaki shirt was also found inside a cover behind the back seat of the autorickshaw. The Election ID card revealed the identity of the 3rd accused as Abbas. Upon confirming his involvement in the crime, he was arrested on 08.09.2010 after completing all necessary formalities. Ext.P68 is the arrest memo. Further investigation revealed that Crl. A. No.1376 of 2018 12 2024:KER:89018 the 3rd accused had purchased the autorickshaw from an auto consultancy at Vellanad. The thondi articles in this case were duly produced before the court, as described in the property lists, and a forwarding note was submitted for sending these items for forensic examination. PW33 confirmed that his successor, PW34, had submitted the final report in this case.

9. The autopsy of the body of the deceased was conducted by Dr. P. Rema, Professor of Forensic Medicine and Police Surgeon at the Medical College Hospital, Thiruvananthapuram. However, she was not examined as a witness in this case due to being indisposed at the time of trial, as she was suffering from Ataxia and was unable to walk or speak. In her place, the Assistant Professor of Forensic Medicine from the same hospital was examined as PW30. During his examination before the court, PW30 deposed that he had been acquainted with Dr. Rema since 2004 and was familiar with her handwriting and signature. He identified Dr. Rema's signature on the postmortem certificate prepared by her, which was marked as Ext.P66. PW30 further stated that he conducts an average of 300 postmortems per year. According to his testimony, Ext.P66 recorded Crl. A. No.1376 of 2018 13 2024:KER:89018 twenty-eight ante-mortem injuries. Referring to Ext.P66, PW30 opined that the cause of death was the injuries sustained to the neck, chest, and abdomen (injury Nos. 1 to 4 and 8 to 11). He further stated that injuries 1 to 8 could have been caused by a thick-walled piece of a soda bottle. PW30 also testified that injuries Nos. 1, 2, 3, 4, and 8 were independently sufficient, in the ordinary course of nature, to cause death. When MO1 (the knife) was shown to him, PW30, after measuring the knife, opined that injuries Nos. 9 to 22 could have been caused by a weapon like MO1. He further stated that injuries Nos. 9, 10, and 11 were also independently sufficient, in the ordinary course of nature, to cause death. A conjoint reading of the evidence of PW30 and the postmortem certificate (Ext.P66) confirms that the death of Syedali was undoubtedly and conclusively homicidal in nature.

10. PW3, an independent witness cited by the prosecution to prove the occurrence, testified that he had only hearsay knowledge about the incident. Although he admitted that during the period of occurrence in this case, he was working at "Zam Zam Juice Parlour" located near Crl. A. No.1376 of 2018 14 2024:KER:89018 Haleema Purdah Centre, he claimed not to have witnessed the incident as he was busy in the shop. However, he was informed by someone that a person had been stabbed to death by some assailants.

11. When the salesmen from Haleema Purdah Centre were examined as PW4 and PW5, they deposed that during the time of the incident, they were employed as salesmen at the said shop. Both witnesses testified that while they were inside the shop, they heard a commotion and a loud cry from a person. They further stated that as a result of the commotion, people standing outside the shop entered the Purdah shop, which prevented them from stepping outside. Both PW4 and PW5 testified that when they eventually came out of the shop, they found a person lying dead inside a nearby mobile shop in a pool of blood. However, they admitted that shortly before the incident, the deceased had visited their shop along with his sister and a minor girl to purchase a Purdah. They further stated that the incident occurred when the deceased stepped out of the shop to make a phone call to his mother regarding her clothing preference.

Crl. A. No.1376 of 2018 15 2024:KER:89018

12. When a staff in the mobile shop, where the deceased sustained fatal injuries, was examined as PW6, he also deposed that he did not witness the incident in this case. According to him, the incident in this case occurred, when he had gone to a Masjid to offer prayers. However, he admitted that when he returned to the shop, a person was found lying in a pool of blood inside his shop. He further admitted that usually a tray containing soda bottles used to be kept outside the nearby Zam Zam Juice Parlour. PW7 and PW8, the other independent witnesses also did not support the prosecution case, testifying that they had only hearsay knowledge about the incident.

13. PW9, another independent witness deposed that, he was a staff in a hotel named Mubarak located at Ruby Nagar near to Haleema Purdah Centre and a mobile shop. According to PW9, he did not witness the incident in this case, as he was engaged in his duties in the hotel's kitchen. According to him, on the day of the incident, at around 2.00 p.m., he heard a commotion and shortly thereafter he saw a man lying dead inside a mobile shop in a pool of blood. At that time, the sister of the Crl. A. No.1376 of 2018 16 2024:KER:89018 victim and her daughter were present there and both of them were crying.

14. To prove the charge levelled against the accused, the prosecution predominantly relies on the compelling ocular testimony of PW1 and PW2. PW2 is none other than the sister of the deceased and PW1 is her daughter. The evidence tendered by PW1 and PW2 has been assailed by the counsel for the appellants mainly on the ground that, as relatives of the deceased, they are inherently interested witnesses, rendering their testimony suspect and unreliable. However, while considering the appellants' contention in the above regard, it should not be forgotten that there is no rigid or inflexible rule that the evidence of a related witness shall be viewed with suspicion under all circumstances. Nevertheless, while acting on the evidence of a relative witness, the court must act with discerning circumspection and utmost prudence. Therefore, we are of the strong view that the contention of the appellants that the evidence of PW1 and PW2 is liable to be discarded at the threshold solely on the ground that they are relatives of the deceased cannot be accepted.

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15. In State of Andhra Pradesh v. S. Rayappa and others 1, the Supreme Court observed as under:

"Testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons. On the contrary, it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging on for years to come and the witnesses are harassed a lot. They have been threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witness should be examined cautiously."

16. In Kartik Malhar v. State of Bihar 2, it was observed that a close relative who is a natural witness cannot be regarded as an interested witness. The term "interested" postulates that the witness must have some interest in having the accused somehow or the other convicted for some animosity or for some other reasons.



1
    [(2006) 4 SCC 512]
2
    [(1996) 1 SCC 614]
 Crl. A. No.1376 of 2018          18                        2024:KER:89018

17. Keeping in mind the above-mentioned principles enumerated by a series of judicial pronouncements, while analyzing the evidence of PW1 and PW2, it is crucial to note that they testified about an incident in which their close relative had tragically lost his life allegedly at the hands of the accused. There is nothing to indicate that PW1 and PW2 had any previous score to settle against the accused. Even the accused did not have a case that PW1 and PW2 had any animosity or grudge towards them to falsely implicate in a grave and gruesome murder case like this. Therefore, it defies common sense to categorize PW1 and PW2 as interested witnesses and to doubt their testimony solely on the basis of their relationship with the deceased. As observed in Rayappa's case (supra) it could not be believed that PW1 and PW2 would falsely implicate innocent individuals, thereby shielding the true perpetrators who took the life of their close relative, and allowing them to escape unpunished.

18. While evaluating the testimony of PW1 and PW2, the initial consideration is whether their presence at the crime scene at the time of offence is plausible and reasonably probable. Upon examining their Crl. A. No.1376 of 2018 19 2024:KER:89018 testimony, it is noteworthy that PW1 and PW2 consistently stated that the deceased accompanied them to Ruby Nagar where they visited a Purdah shop to purchase Purdah and it was during this visit that the incident occurred. According to PW1, after reaching the Purdah shop she instructed her brother to call their mother to confirm whether she wanted a shawl or Mafta and the incident in this case occurred when her brother stepped out of the shop to make a phone call as instructed by her. Despite rigorous cross-examination by the learned counsel for the accused, PW1 and PW2's presence at the crime scene during the incident remains unchallenged. Moreover, the evidence of PW1 and PW2 are mutually corroborative. The striking correlation between the overt act attributed to the accused by PW1 and PW2 in their testimony and the injuries noted in the postmortem examination of the deceased serves as compelling evidence that PW1 and PW2 were indeed present at the crime scene, rendering their presence beyond doubt.

19. Although the shop owners and staff of nearby shops turned hostile to the prosecution by deposing that they did not witness the Crl. A. No.1376 of 2018 20 2024:KER:89018 incident, none denied its occurrence. More notably, PW4 and PW5 who were the salesmen in the Purdah shop admitted that when they were inside the shop they heard a commotion from outside and later they found a person lying dead in a pool of blood inside a nearby mobile shop. PW4 and PW5 made it specific that, just prior to the said incident the deceased came to the shop along with his sister and a minor girl to purchase Purdah, and the incident in this case happened when the deceased came out of the shop to make a phone call to his mother to enquire about her clothing preference. Similarly, the evidence of PW9, a staff in Mubarak Hotel situated very near to the crime scene shows that on hearing about the incident when he reached the mobile shop he found a man lying in a pool of blood inside the said shop. He further testified that then the sister of the deceased and her child were also there and both of them were crying.

20. The above discussed evidence of PW4, PW5, and PW9 would unequivocally establish the presence of PW1 and PW2 at the scene of occurrence when the incident in this case occurred. We are not unmindful Crl. A. No.1376 of 2018 21 2024:KER:89018 of the fact that PW4 and PW5 were declared hostile to the prosecution and the trial court granted permission to put questions to them as provided under Section 154 of the Indian Evidence Act, 1872. But merely because of the reason that a witness turned hostile, the evidence of such a witness could not be totally eschewed from consideration. In other words, we acknowledge that the law does not necessitate disregarding their entire testimony. On the other hand, the court can very well sift grain from chaff and act on those portions of their evidence which is convincing and inspires the confidence of the court. In Paramjeet Singh @ Pamma v. State of Uttarakhand3 , it was observed that, "Merely because the prosecution chose to treat a witness as hostile and cross-examined him, the evidence of such witness cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof".

Moreover, in Govindappa and Others v. State of Karnataka4 , the Hon'ble Supreme Court observes that, " The deposition of a hostile witness can be relied upon at least up to the extent he supported the case of the 3 [AIR 2011 SC 200] 4 [(2010)6 SCC 533] Crl. A. No.1376 of 2018 22 2024:KER:89018 prosecution and appears to be true and convincing."

21. Moreover, the evidence PW1 reveals that she was wearing an orange churidar top and a black colour bottom at the time of the commission of offence and she identified MO5 as the said churidar top. A conjoint reading of evidence of PW1 and PW33, the investigating officer, shows that the said churidar top was seized by the investigating officer as the same was produced by PW2 before the police station. The FSL report which pertains to the examination of thondi articles in this case, marked as Ext.P59, shows that, in the scientific examination of item No. 7 (MO5) human blood was detected. Of course, the said scientific evidence will also lend added strength to the prosecution case regarding PW2's presence at the scene of occurrence.

22. Similarly, PW1 and PW2 testified that PW2 had sustained an injury on the left side of her forehead allegedly inflicted by one of the accused when she intervened to rescue her brother from further attack. The evidence of PW32, the Sub Inspector of Police, Fort Police Station, who recorded the FIS given by PW2 shows that he had examined the body Crl. A. No.1376 of 2018 23 2024:KER:89018 of PW2 with the help of a Woman Police Constable and during the examination, an injury was noted on the forehead of PW2. In the body note prepared by him, which is marked as Ext.P1(a), it is specifically mentioned that an injury was noted on the forehead of PW2. Considering the above materials and evidence, we have no hesitation in holding that there is overwhelming evidence to prove the presence of PW2 at the scene of occurrence. As it is established from the evidence, PW2 being an injured witness, her evidence has a greater evidentiary value. Unless a compelling reason exists, her evidence is not liable to be discarded. Being an injured witness, the evidence of PW2 has to be accorded special status. In Brahm Swaroop v. State of Uttar Pradesh5 the Hon'ble Supreme Court held as follows:

"The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. The testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. Thus, the evidence of an injured witness should be relied upon unless there are grounds 5 [AIR 2011 SC 280] Crl. A. No.1376 of 2018 24 2024:KER:89018 for the rejection of his evidence on the basis of major contradictions and discrepancies therein."

Therefore, the only conclusion that can be arrived at is that the evidence of PW1 and PW2 can indeed form a reliable basis for proving the incident alleged in this case, despite their close relationship to the deceased.

23. The motive behind the commission of the offence alleged in this case is that the accused nurtured a grudge to avenge the murder of Sathar, the uncle of the 1st, 2nd, and 4th accused and relative of 3rd accused. PW1 and PW2 admitted that the deceased in this case was an accused in a case registered in connection with the murder of Sathar. The evidence of PW12 reveals that the deceased Syedali was murdered on the date of his release from jail in connection with Sathar's murder. The evidence of PW12 in this regard remains unchallenged in the cross-examination. Therefore, the only reasonable conclusion is that the murder of Syedali was in retaliation for the murder of Sathar, the uncle of 1st, 2nd and 4th accused. Hence, the motive behind the commission of the present offence stands fully proved. We acknowledge that this is a case with direct ocular evidence, and proof of motive holds relatively little Crl. A. No.1376 of 2018 25 2024:KER:89018 significance. Nevertheless, establishing the motive reinforces the prosecution case.

24. Another challenge raised by the defence is regarding the reliability of the identification of the accused made by PW1 and PW2 in court. The counsel for the appellants urges that the investigating officer's failure to conduct a test identification parade is a serious flaw in the investigation, casting doubt on the witnesses' identification of the accused in court for the first time. When considering this contention, it is to be noted that the substantive evidence regarding the identity of the accused, is the identification made by the witnesses in court. If the in-court identification by witnesses is convincing and reliable there is no need to look for corroboration from other sources like identification in a test identification parade. Identification made by a witness in a test identification parade will obviously give corroboration to the in-court identification made by witnesses. Moreover, a test identification parade will definitely help to ensure that the investigation is on the right track. However, relying solely on an accused's first-time identification in court by Crl. A. No.1376 of 2018 26 2024:KER:89018 a witness is inherently weak, unless corroborated by a previous identification in a test identification parade or other evidence. However, there is no absolute rule that every in-court identification should be corroborated by an identification in an earlier test identification parade. In State of Himachal Pradesh v. Lekh Raj6. It was observed that:

"Test identification is considered as a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration."

25. Keeping in mind the aforementioned general principles, while coming to the facts and evidence in the present case, it could be seen that both PW1 and PW2 testified that they had prior acquaintance with the 1st and 2nd accused as both of them had visited their house earlier along with the deceased in this case. Although PW1 and PW2 admitted to having no prior acquaintance with the 3rd and 4th accused, it cannot be overlooked that the offence was committed in broad daylight, rather than under the cover of darkness. The numerous injuries inflicted by the accused suggest 6 [(2000) 1 SCC 247] Crl. A. No.1376 of 2018 27 2024:KER:89018 that the assailants spent a substantial amount of time committing the offence. In such circumstances, it is entirely natural that the faces of the assailants would have been indelibly imprinted in the memories of the witnesses enabling them to recall and identify the assailants at the time of trial. Contrary to the cases involving encounters such as hit-and-run incidents, where the witnesses only get fleeting and a momentary view of the accused, the prime witnesses examined as PW1 and PW2 had sufficient opportunity to witness the incident. Considering all the above said aspects, we have no hesitation in holding that the identification of the accused made by PW1 and PW2 first time in the dock can be acted upon.

26. The evidence of PW33, the investigating officer, reveals that he recovered the MO3 knife based on a disclosure statement made in a joint confession statement given by the 1st and 2nd accused to him. The recovery of the knife was effected from a place to which he was allegedly led by the accused. The evidence establishes that the confession statement was a joint statement and it lacks authorship of concealment. More pertinently, the relevant portion of the confession statement which is Crl. A. No.1376 of 2018 28 2024:KER:89018 separately marked as Ext.P72(a) is not recorded in the first person, but in the words of the investigating officer. In Thampi Sebastian v. State of Kerala7 it was observed that "there is no such thing as "joint discovery", viz, discovery made in consequence of information given by more than one person, it is only the information first given which is admissible and where it cannot be ascertained which of the accused first gave the information, the alleged discovery cannot be proved against any one of the accused. In the instant case also, there is no evidence who gave the statement first or what was the exact and precise statement the accused had given. Therefore, we are concurring with the finding of the trial court that the disclosure statement allegedly given in the joint confession statement cannot be proved against any one of the accused.

27. The learned counsel appearing for the 3rd and 4th accused raised a contention that it is highly suspicious why the names of the 3rd and the 4th accused were not mentioned in the FIS. According to the counsel, the non-mentioning of the names of the 3rd and 4th accused in 7 [1988 (1) KLT 247] Crl. A. No.1376 of 2018 29 2024:KER:89018 Ext.P1 FIS is fatal to the prosecution. We acknowledge that PW1 admitted during her examination in court that she did not state the name of accused Nos.3 and 4 in the FIS. However, we cannot concur with the contention that this omission is serious enough to cast doubt on the involvement of 3rd and 4th accused in this crime. The mere omission to mention the names of some of the assailants in the FIS is not by itself a reason to give a clean chit to those accused. PW1 and PW2 categorically deposed that four persons took part in the commission of offence and all the assailants were identified by PW1 and PW2 in court during trial. It is unrealistic to expect a witness to provide a photographic version of the entire incident while giving an FIS. Moreover, through a series of judicial pronouncements, it is well settled that an FIR need not be an encyclopedia vividly narrating the entire details of the incident. In Sujatha v. State of Kerala and others8, it was observed that the mental condition of the first informant at the time when the statement was given is a relevant aspect to be considered while testing the probative value of FIR and omissions, if any. In the case at hand, the FIS was given by PW2, the sister of the 8 [2018 KHC 659] Crl. A. No.1376 of 2018 30 2024:KER:89018 deceased, who witnessed a gruesome incident in which her brother was attacked and stabbed to death. The FIS was given immediately after the incident. Therefore, under the given circumstances, it would be unreasonable to expect a sister, who had endured such exceptional deprivation and witnessed a profoundly shocking incident, to provide a detailed account with mathematical precision. Consequently, minor omissions in the First Information Statement (FIS) should not prejudice the court's mind against believing the testimony of such a witness.

28. In Krishna Master & others v. State of U.P.9, the Hon'ble Supreme Court held that:

"The FIR need not be an encyclopedia of minute details of the incident. Nor it is necessary to mention therein the evidence on which prosecution proposes to rely at the trial."

In the said decision, the Hon'ble Supreme Court observed that:

"Persons, who has lost kith and kin in horrific incident is likely to suffer great shock and therefore law would not expect him to mention minute details either in his FIR or statement u/s.161."

Therefore, we are of the view that the non-mentioning of the names 9 [AIR 2010 SC 3071] Crl. A. No.1376 of 2018 31 2024:KER:89018 of the entire assailants in the FIS has no significance at all and is not a reason to doubt their involvement in the perpetration of the crime.

29. However, we are of the considered view that an offence under Section 120B of the IPC will not be attracted in this case. To constitute an offence of criminal conspiracy punishable under Section 120B of the IPC, the basic ingredient is an agreement to commit an illegal act or a legal act by illegal means. Generally, conspiracy is hatched in secrecy and therefore, it would be difficult to get direct evidence for the same. Usually, the existence of the conspiracy has to be inferred from the circumstances and the conduct of the accused. In the case at hand, there is absolutely no evidence to show that the accused hatched a conspiracy to murder Syedali, the deceased. There is no circumstance or evidence to show that prior to the incident in this case, they colluded and entered into an agreement to commit murder of Syedali and in pursuance of the said agreement, the offence was committed. The sharing of common intention alone is insufficient to imply a prior conspiracy or agreement to commit an offence. Likewise, the active involvement of each accused in the Crl. A. No.1376 of 2018 32 2024:KER:89018 perpetration of the offence is not indicative of a prior agreement. Unlike Section 34, Section 120B of the IPC creates a distinct offence, which is a substantive offence in itself. Therefore, there should be convincing evidence to prove such an offence. In the case at hand, there is no evidence to show that the accused entered into a criminal conspiracy and in pursuance of the said conspiracy, the offence was committed. Therefore, we have no hesitation in holding that the prosecution failed to prove the commission of an offence punishable under Section 120B of the IPC by the accused.

30. However, the evidence in this case clearly establishes that all the accused acted in furtherance of their common intention to murder Syedali. Specific overt acts are assigned to each and every accused and their active involvement in the commission of the offence is fully established by the evidence. The overt acts attributed to the accused show that there was a prior concert and all of them acted in furtherance of their common intention to commit murder.

31. The upshot of the above discussion is that the evidence of Crl. A. No.1376 of 2018 33 2024:KER:89018 PW1 and PW2 regarding the incident is convincing and reliable. Their evidence is mutually corroborative and remains unshaken despite rigorous cross-examination by the defence counsel. Although this is a case resting on direct ocular evidence, where proof of motive holds little significance, the fact that the prosecution has successfully proven the motive behind the alleged offence lends considerable weight in establishing the guilt of the accused. A perusal of the postmortem examination report reveals that the deceased sustained multiple injuries which ultimately led to his death due to its severity. The accused who inflicted a lot of grievous injuries using dangerous weapons could not be heard to say that they were not conceiving an intention to murder the deceased in this case. The act of the accused will not come under any of the exceptions provided under Section 300 of the IPC.

32. Therefore, we have no hesitation in holding that the prosecution had succeeded in proving the commission of offences punishable under Sections 341, 324, and 302 r/w Section 34 of the IPC. The sentences imposed in this case for the said offences are also Crl. A. No.1376 of 2018 34 2024:KER:89018 consonant with the nature and gravity of the offence committed. However, the accused are found not guilty of offence punishable under Section 120B of the IPC.

Resultantly, we confirm the finding, conviction and sentence passed by the learned Session Judge in SC No.1530/2012 on the file of the Additional Sessions Court-VI, Thiruvananthapuram for the offences punishable under Sections 341, 324 and 302 r/w Section 34 of the IPC. However, the conviction and sentence for the offence punishable under Section 120B of the IPC are set aside. With this affirmation and modification, the appeal stands dismissed.

Sd/-

RAJA VIJAYARAGHAVAN V. JUDGE Sd/-

                                             JOBIN SEBASTIAN
                                                  JUDGE
ncd/DCS
 Crl. A. No.1376 of 2018       35                  2024:KER:89018




                    APPENDIX OF CRL.A 1376/2018

PETITIONER ANNEXURES

Annexure-I                TRUE COPY OF THE CERTIFICATE ISSUED FROM
                          GENERAL HOSPITAL, THIRUVANANTHAPAURAM DATED
                          06-05-2023

Annexure -II              TRUE COPY OF THE ORDER IN CRL.M.A. NO. 1/2023
                          DATED 22-06-2023 BEFORE THE HON'BLE HIGH
                          COURT OF KERALA

Annexure -I               A TRUE COPY OF THE ORDER BEARING GO(RT) NO.
                          3646/2023/HOME DATED 12-12-2023

Annexure-II               TRUE COPY OF THE OUTPATIENT RECORD DATED
                          26-07-2024 ISSUED FROM THE GOVERNMENT
                          AYURVEDA HOSPITAL, THIRUVANANTHAPURAM

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