Kerala High Court
C.I. Of Police Adimali vs Baby @ Sebastian on 9 June, 2009
Bench: A.K.Basheer, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1898 of 2005()
1. C.I. OF POLICE ADIMALI, REP. BY
... Petitioner
Vs
1. BABY @ SEBASTIAN,
... Respondent
2. SHAJAN @ ROYCHAN, S/O.SEBASTIAN,
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.K.GOPALAKRISHNA KURUP
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :09/06/2009
O R D E R
A. K. Basheer & P. S. Gopinathan, JJ.
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Crl.A. No. 1898 of 2005
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Dated this the 9th day of June, 2009.
Judgment Basheer, J:
State has preferred this appeal against the order of acquittal passed by the Sessions Court holding the respondents/accused herein, not guilty of the offences punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code. The court below held that the prosecution case was not "free from reasonable doubt" and therefore the accused were entitled to get the benefit of doubt.
2. A young man named Jojo, aged about 22 years, and an autorickshaw driver by profession, was deeply in love with Pw.2 Smitha aged 16 years. She is the daughter of respondent No.1/accused No.1. Respondent No.2/accused No.2 is the brother of accused No.1.
3. The prosecution alleged that Jojo and Smitha having found that the latter's family was vehemently opposed to their relationship and respondent No.1 having ruled out any possibility of a marriage alliance between the two, had decided to flee from the village at about 11 p.m. on July 19, 2000. Jojo and Smitha started off from Mammattikkanam Kara by about 11.45 p.m. The two accused sensing that the two lovers had already chalked out a plan to elope, allegedly followed and intercepted them. Accused 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 the body of Jojo and the other accused pushed the head of Jojo into the mud and strangulated and killed him. Crl.A. No. 1898 of 2005 2 Pw.1 who was stated to be residing with his parents a little away from the alleged scene of occurrence informed the matter to one Ravi, who was the Secretary of the local Grama Panchayat. Mr.Ravi in turn informed the Police. Pw.31 Sub Inspector of Police of Rajakkad Police Station reached the scene of occurrence by about 12.45 a.m. and recorded Ext.P1 statement of Pw.1. Subsequently Ext.P57 First Information Report was registered by Pw.31 after going back to the Police Station. The case was thereafter investigated by Pw.32 Circle Inspector of Police and charge sheet was laid by him before the Court against the appellants and their mother, Thressiamma.
4. The prosecution examined Pws.1 to 32 and marked Exts.P1 to P57 and M.Os.1 to 5 on its side. Exts.D1 to D4, portions of the case diary statements of the witnesses, were marked on the side of the defence.
5. In the course of the trial the learned sessions Judge noticed that almost all the prosecution witnesses who had allegedly seen the incident or had occasion to see the two accused at the scene of occurrence, had turned hostile, barring Pw.6 and Pw.17. The learned Judge took the view that it was not safe to rely on the evidence of Pw.6, since he was only a chance witness. The evidence of Pw.17 was also found to be untrustworthy since he had allegedly kept away from the scene for a few days. It was in the above circumstances that the learned Sessions Judge held that the prosecution had not succeeded in proving Crl.A. No. 1898 of 2005 3 the charge against the accused beyond reasonable doubt.
6. It is contended by learned Public Prosecutor Sri.Noble Mathew that the court below has committed serious illegality in discarding the evidence of prosecution witnesses especially that of Pws.6 and 17. According to the learned Public Prosecutor, the evidence of the prosecution witnesses (though they had been declared hostile by his counterpart in the trial court with undue haste), cannot be discarded or eschewed in toto, in the facts and circumstances of the case. He points out that the residents of that locality had the misfortune to witness a young man being beaten up, smothered and throttled in a paddy field. All the people who had gathered at the scene of occurrence on hearing the hue and cry had seen the two accused with dirt smeared all over their body, after the fight with the young man who struggled for his life in the paddy field which was filled with mud and water in the monsoon rains. The body of the young man was pulled out of the paddy field and dumped in the nearby property. Many of the witnesses had seen the two accused walking away after committing the crime. Pw.2, the girl in love (daughter of accused No.1) was wailing and weeping. She had tried to restrain and dissuade her father and uncle from finishing off her lover. In the process she was also hurt. It is further pointed out by the learned Public Prosecutor that the material witnesses were questioned by the Police within hours of the incident. Significantly, the First Information Report was registered Crl.A. No. 1898 of 2005 4 within two hours after the incident, against the two respondents/accused along with their mother on the array of the accused. But still these witnesses, for reasons only best known to them, ditched the prosecution. It is submitted by the learned Public Prosecutor that if only the Court below had perused the entire materials available on record and read the evidence of the witnesses in its proper perspective, it would not have acquitted the accused.
7. Per contra, it is submitted by Sri. Gopalakrishna Kurup, learned counsel for the accused that the court below had properly examined the oral and documentary evidence adduced by the prosecution. The court below had occasion to see the demeanour of the witnesses. He further submits that in an appeal against acquittal, the scope of interference is very narrow and limited and this Court may not be justified in interfering with the order of the trial court, even if a second view is possible.
8. Before we examine the oral testimony of the witnesses, it may be relevant and profitable to take a brief look at the First Information Statement, admittedly given by Pw.1 within two hours of the alleged incident.
9. It may be remembered that Pw.1 had admitted his signature in Ext.P1. It was stated by Pw.1 that he was residing with his parents and sister (Pws.7 to 9). At about 9 p.m. all of them had finished their dinner and gone to bed. Sometime late in the night all of them woke up Crl.A. No. 1898 of 2005 5 hearing their dog barking incessantly. When they came to the front window and looked outside, they saw Pw.2 crying aloud standing on the ridge (varamba) of the paddy field belonging to Pw.3. Thressiamma (mother of the accused) was standing near Pw.2 with a country torch in her hand. Accused No.1 and his younger brother Shajan (accused No.2) were seen dragging a person from the paddy field to its ridge. They dragged the body into the adjoining land and dumped it there. Thressiamma also helped the two accused in doing so. The younger son and daughter of accused No.1 were also standing there. All of them went towards their house thereafter. The time was around 11.45p.m. Pw.1 further stated that they called out the neighbours. By that time Pws.3 and 4 had also gone running to the scene. Pw.1, his parents and sister (Pws.7 to 9) went to the scene. They found Jojo lying motionless, with mud smeared all over his body. His eyes and mouth were open. They realised that Jojo was dead. Pw.1 further stated that Jojo had been in love with Pw.2. He also referred to an incident which took place about one year ago when Jojo had allegedly taken Smitha from the school. In connection with that incident, Pw.2 was issued transfer certificate from Rajakkad school. Accused No.1 was against the love affair between his daughter and deceased Jojo. Pw.1 claimed that deceased Jojo who was an autorickshaw driver like him, was his friend. He further stated that he saw the incident in the light of the country torch carried by Crl.A. No. 1898 of 2005 6 Thressiamma. He along with Saji, Lijo and Santo went to meet Ravi, the Secretary of the local Panchayat and informed him about the incident. Mr. Ravi telephoned the Police and the Police came to the scene immediately. But Pw.1 deposed that he did not told the Sub Inspector that he had seen the incident. In fact this witness disowned all his statements in Ext.P1 implicating the two accused. The contradictory portions in the statement of Pw.1 which he had disowned while he was examined in the court were marked as Exts.P2 to P8. We will deal with the evidence of this witness elaborately a little later.
10. Pw.2, the girl who was admittedly in love with deceased Jojo also turned hostile to the prosecution. In fact this witness went to the extent of saying that she had not been in love with Jojo. She further stated that she had not gone out of her house in the night of July 19, 2000 with Jojo. Jojo had not come to her house at about 11 p.m. and knocked at her door. She also disowned her statement before the Police that accused No.2 had beaten her on her back and had picked up a fight with Jojo. Accused No.1 (her father) had not hit Jojo. She further asserted that accused No.2 had not pushed the head of Jojo into the mud in the paddy field. She had not told the Police that the body of Jojo was pulled out of the paddy field and put on the varamba (boundary). But significantly this witness admitted that she had sustained some injury and had gone to the hospital to get treatment for the injury on her hand. But according to her, she sustained the injury Crl.A. No. 1898 of 2005 7 while cutting grass. She disowned her statement before the Police that the injury had been sustained by her in the push and pull with the accused. The contradictory statements of this witness were marked as Exts.P9 to P17. We will deal with the evidence of this witness also later.
11. Pw.3 George admitted that he had come out of his house in the mid night on the day of the incident hearing some loud cry. He put on the light and went to the scene. He found Jojo lying in the mud in the property of his younger brother. He also admitted that he had seen Pw.1 in the courtyard of his house. But he denied having told the Police that he had seen the accused at the scene of occurrence. Therefore Pw.3 was also declared hostile. This witness further admitted that the saplings in the paddy field which belonged to him were trampled and dislevelled. He denied having informed the Police that he had seen the two accused pulling out the body of Jojo from the paddy field and dumping it on the varamba of the field. The contradictory portions in the deposition of this witness were marked as Exts.P18, P25 and P26.
12. Pw.4, the brother of Pw.3 also did not support the prosecution. Though he had allegedly told the Police in his statement under Section 161 of the Code that he had heard accused No.1 saying that he had finished off Jojo, he had disowned that statement. He further stated that he had not informed the Police that he had seen the Crl.A. No. 1898 of 2005 8 two accused along with their mother Thressiamma at the scene of occurrence. He also stated that he had not seen Pw.2 with a bag in her hand.
13. Pw.5 who according to the prosecution had reached the scene of occurrence along with Pw.6 while they were returning to their home from Rajakkad also did not support the prosecution. But he admitted that he knew Pw.6. But he disowned his statement before the Police that he and Pw.6 had gone to the scene of occurrence in the paddy field on hearing a cry. That portion of the statement given by him before the Police under Section 161 of the Code of Criminal Procedure was marked as Ext.P21. According to the prosecution, this witness had told the Police that on reaching the scene he had found the head of a human being protruding from the mud and a man with a shirt pushing the head down to the mud. This statement was also disowned by Pw.5. That portion was marked as Ext.P22. Similarly he had told the Police that he had seen a girl and an old woman standing at the scene of occurrence. But this statement was also disowned by him which was marked as Ext.P23. The man with the shirt was identified by Pw.5 before the Police as accused No.2 while the man without shirt was identified as accused No.1. This statement before the Police was also disowned by Pw.5. This was marked as Ext. P24.
14. Pw.6, as mentioned by us earlier, did in fact stand by the Crl.A. No. 1898 of 2005 9 version given by him to the Police as a whole. He stated that he knew deceased Jojo and the two accused. He asserted that he saw the incident. He and Pw.5 were returning from Rajakkad and proceeding towards Koothumkal. When they reached near Mamattikkanam at about 11.30 p.m. they heard dogs barking and a hue and cry. They went towards the paddy field from where the noise came. He saw two people in the paddy field, one wearing shirt and other without shirt. One of them was searching for something. A head protruded out of the mud. The man in shirt who was standing in the paddy field pushed the head down to the mud. This witness stated that he was scared and got away from the scene immediately. He identified accused No.2 in the court as the man who had been wearing shirt at the time of the incident and the other person without shirt as accused No.1. He also stated that he saw a girl standing with a bag and an old woman standing nearby with a country torch made of hay. He could not identify the person who was lying in the mud in the field at that time. But when he went to the scene of occurrence on the next day, he identified the deceased Jojo. He stated that he had seen the incident in the light of the country torch and the moon light.
15. In cross examination of this witness it was brought out that he had gone to Rajakkad to meet a contractor who owed some money to him. Since Pw.5 had requested for a loan from him, he had asked Pw.5 to meet him at Rajakkad in the evening. Since in the evening Crl.A. No. 1898 of 2005 10 they could not meet the Contractor, he and Pw.5 had gone for a movie. Even after the movie they could not meet the contractor. They took a tea from a nearby shop and proceeded towards Koothumkal. It was at that time that they heard the loud cry from the paddy field nearby. We will deal with the evidence of this witness more elaborately a little later.
16. Pw.7 the father of Pw.1 also admitted that he woke up from his sleep hearing loud barking of dogs. He saw some people moving with light through the paddy field. He also went to the scene. But he stated that he did not see the incident. Therefore he was declared hostile. He disowned his statement before the Police that he had seen the two accused pulling out somebody from the paddy field. This portion of the statement was marked as Ext.P27. He had not told the Police that he had heard Thressiamma saying "Let us go. Leave him if he is dead". This portion was marked as Ext.P29. He further stated that he had not seen the two accused with m ud smeared all over their dress and body. This portion was marked as Ext.P30. He had not told the Police that the two accused had gone towards their residence after pulling out the body of Jojo from the paddy field and dropping it at the Varamba. This portion was marked as Ext.P31.
17. Pw.8 the wife of Pw.7 also did not support the prosecution. She stated that she had not seen the incident. The contradictory portions in her statement given under Section 161 of the Code of Crl.A. No. 1898 of 2005 11 Criminal Procedure were marked as Exts.P32 to P34. Pw.9, the daughter of Pws.7 and 8 and sister of Pw.1 deposed before the court that she had not seen the two accused pulling out the body of Jojo from the paddy field. She had not seen the mother of the two accused standing near the scene with a country torch in her hand. The contradictions in her statement were marked as Exts.P35 to P37.
18. Pw.10 was also declared hostile. She stated that she did not tell the Police that she had seen the incident. She disowned her statement that she had seen two people pulling out the body of Jojo from the paddy field and an old lady standing near them. This portion of her statement given to the Police under Section 161 of the Code was marked as Ext.P38. The other contradictory statement was marked as Ext.P39.
19. Pw.11, the son of accused No.1 obviously did not support the prosecution. He deposed that he had not told the Police that when he woke up in the night his sister Smitha (Pw.2) was not found in the house. He further stated that he had not told the Police that he and Noble (Pw.12) had gone with his grandmother (Thressiamma) to the scene of occurrence. That portion of the statement was marked as Ext.P40. He disowned his statement before the Police that he had seen his father (accused No.1) and uncle (accused No.2) engaged in push and pull with his sister in the paddy field. He also did not tell the Police that the two accused had pulled out the body of Jojo from the Crl.A. No. 1898 of 2005 12 paddy field. That portion of the statement was marked as Ext.P41. Pw.12, the other son of accused No.1 and brother of Pw.11 also disowned whatever he had allegedly told the Police about the occurrence. The relevant portions of his statement were marked as Exts.P42 and P43.
20.Pw.13, the father of deceased Jojo deposed before the Court that his son was in love with Pw.2 Smitha since 3 years before the incident. Smitha used to write letters to his son.One such letter was produced by him before the Police. At about 1 a.m. on the night of the incident, the Sub Inspector had come to his residence and woke him up. He was informed by the Sub Inspector that his son was no more. He fell unconscious. This witness further stated that he had gone to the residence of accused No.1 four days prior to the incident seeking marriage alliance for his son with Pw.2. But the request was turned down. In cross examination this witness further stated that two bags were available in his house. But after the incident the bags were found missing. His son had also with him Rs.2500/-, apart from a gold chain weighing 1 > sovereigns. He was also having a watch. His son was working as an autorickshaw driver.He used to come home late. In cross examination this witness further stated that he had gone to the house of accused No.1 seeking marriage alliance along with Pws.13 to 16.
21. Pw.14, the mother of deceased Jojo also spoke about the love affair between her son and Pw.2. She stated that Pw.2 used to Crl.A. No. 1898 of 2005 13 send greeting cards and letters to her son in their residential address. Earlier, when the school authorities had given complaint before the Police about the affair between Jojo and Pw.2, the Sub Inspector had summoned Pw.2 and Jojo. Pw.2 and Jojo informed the Sub Inspector that they were in love. She advised her son not to continue the relationship since the girl was still a minor. For a few days the boy and girl stopped meeting each other. But thereafter Pw.2 started to come again to their residence. Pw.14 further stated that her son had informed her that he wanted to save Pw.2 somehow. When they went to the residence of accused No.1 seeking marriage alliance, she had told Pw.2 to stop writing letters to Jojo . At that time the grandmother of Pw.2 told Pw.14 that Pw.2 had not been writing letters to Jojo. At that time Pw.14 had shown some of the letters written by Pw.2 to her son. Accused No.2 categorically told that there was no possibility of an alliance. Accused No.1 also said that there was no question of giving his daughter in marriage to Jojo. Therefore they came back. According to this witness the accused had threatened that if Jojo went to their residence he would be killed Pw.14 in cross examination stated that Pw.2 had told her that her uncle (A2) would never allow her to live with Jojo. It was because of this that they had gone to the residence of the accused seeking marriage alliance.
22. Pw15, the younger brother of deceased Jojo in his deposition Crl.A. No. 1898 of 2005 14 stated that Pw.2 used to send letters to his brother in the residential address. He had accompanied Pw.13 and others when they went to the residence of the accused seeking marriage alliance for Jojo with Pw.2. Pw.16 stated that he had accompanied the others to the house of the accused.
23. Pw.17 was the other witness who supported the prosecution case. He was the neighbour of the accused. This witness stated that after 10 p.m. on the date of the incident Jojo had come to his residence with two bags in his hand. He informed Pw.17 that he was going to take away Smitha (Pw.2) with him. Pw.17 had come out of his residence and stood waiting for Jojo on the pathway as requested by him. Jojo came with Pw.2 after 11 p.m.. They bid farewell to Pw.17 and his wife and went away.
24. They went inside the house and slept. After about one hour, Thressiamma, the mother of the two accused woke them up. When P.W.17 went out, Thressiamma informed him that she was going to the hospital with Accused No.2 and requested P.W.17 to remain at her house. P.W.17 further stated that their "child" (apparently referring to Smitha) had eloped with one person and that they had killed him. When P.W.17 and his wife went to the residence of Thressiamma, as requested by her, P.W.2 Smitha was seen crying. Mud was smeared all over her body. She told P.W.17 that her daddy and uncle (Accused Nos.1 and 2) had killed Jojo. Immediately, P.W.17 went to the place Crl.A. No. 1898 of 2005 15 where the alleged incident had taken place. He found Jojo lying dead near the paddy field. He came back to the residence of Accused No.1. According to this witness, Thressiamma gave some money to Accused No.1 and both of them left. He further stated that he did not find the bags of Jojo at the place where he was found lying dead. He saw police personnel and certain other people at the scene. In cross-examination, he stated that he had been residing at Kothamangalam about 80 kms. away at the time of his examination. He further stated that he and his wife were not available in their rented house for five days immediately after the incident. He had appeared before the police on the sixth day after the incident as summoned by them. His statement was recorded. He further stated that Smitha had told him and his wife about her love affair with Jojo. He had advised Smitha not to continue her relationship. He further admitted that he was involved in a case registered under the Forest Act. We will deal with the evidence of this witness elaborately a little later.
25. P.W.18 was the driver of the autorickshaw, which was allegedly hired by Accused No.2 on the night of the incident. He turned hostile to the prosecution and stated that his auto rickshaw was not hired by Accused No.2 on that night. P.W.19, a jeep driver also did not support the prosecution. According to this witness, Accused No.1, who was his neighbour, had hired his jeep to go to the hospital on the night of the alleged incident at about 9 p.m. and not at 1 a.m. as alleged Crl.A. No. 1898 of 2005 16 by the prosecution. The relevant portion of his statement before the police contrary to what he had stated before the Court, was marked as Ext.P45. He also denied his statement before the police that Accused No.1 had told that Smitha was missing. That portion of his statement was marked as Ext.P46.
26. P.W.20, another jeep driver, also turned hostile to the prosecution and stated that he had not told the police that at about 4 a.m. on July 20, 2000, (the day on which the alleged incident took place) the accused had hired his autorickshaw and that he had dropped them at Koothunkal. He admitted that he was a neighbour of the accused. But he denied the suggestion that he was trying to help the accused.
27. P.W.21 was the owner of the jeep, which was driven by P.W.20. P.W.22 was the owner of the land where the dead body of Jojo was found.
28. P.W.23, the wife of Accused No.1 had, according to the prosecution, produced the dress worn by the two accused and P.W.2 under Ext.P51 seizure mahazar. But P.W.23 stated that she had not produced those dresses before the police. Therefore she was declared hostile. She further stated that she could not identify the dresses (MO.3 series - kaily mundu, underwear, shirt, nighty, petticoat) found in the court and she did not know to whom they belonged. This portion of her statement was marked as Ext.P48.
Crl.A. No. 1898 of 2005 17
29. P.W.24 was a witness to Ext.P49 inquest report. P.W.25 was a witness to Ext.P50 mahazar. P.W.26 was a witness to Ext.P51 mahazar. P.W.27 was a witness to Ext.P52 mahazar under which M.O.1 X'mas card and M.O.2 letter allegedly sent by P.W.2 to deceased Jojo were seized by the police. P.W.28, the village officer, prepared Ext.P53 scene plan.
30. P.W.29 was the Doctor, who examined P.W.2 on July 21, 2000, on the next day after the incident. P.W.29 had also examined Accused No.2 on July 24, 2000. In the case of P.W.2, the Doctor had issued Ext.P55 wound certificate and had noted the following:
"A clean cut through the tissue of right forearm two inches below the elbow flexor aspect 8 cm. in length, with clean curt edge. O.5 cm. in width and 2-3 mm. in depth. There are distinct head and tail of wound. At the tail end, the skin alone is cut. Crust of dried clot is seen on the floor of the wound. It is a flap type of incised wound caused by a sharp object and of age 25-30 hours." The Doctor had examined P.W.2 at 5.45 p.m. on July 21, 2000.
31. In the case of Accused No.2, the Doctor had noted the following injuries in Ext.P54.
"1. Lacerated wound over the left corner of upper lip of size 2x2x0.5 cm. circular with bevelling edges. Crushing type of wound with irregular margin and irregular Crl.A. No. 1898 of 2005 18 surface - punchured out. Signs of wound healing is seen. It is a cut type of lacerated wound caused by a sharp object and of 3 to 5 days.
2. Lacerated wound in the left side of face 1.5" from the ear lobe 2x1.5 cm. Scar tissue had formed. This wound could be produced by blunt force. The age of wound was 3 to 5 days.
3. Haematoma, bruise of bluish black colour 1 cm. below the left eye of 3 to 5 days duration."
Exts.P54 and P55 certificates would reveal that the Doctor had examined the victims at the request of the police. We will refer to this certificate a little later.
32. P.W.30 held autopsy on the dead body of Jojo and issued Ext.P56 certificate. Since the ante-mortem injuries noted by the Doctor assume some significance in this case, all of them are extracted hereunder.
"1. Linear abrasion 2x0.1 cm. on the right side of the face 6 cm. outer to the corner of mouth.
2. Abrasion 0.3x0.2 m. on the tip of nose.
3. Multiple crescentic abrasions over an area 3x2 cm. ranging in sizes from 0.3x0.1 cm. to 1.2x0.1 cm. clustered together on the right side of the neck 6 cm. above the collar bone and 5 cm. outer to the midline.Crl.A. No. 1898 of 2005 19
4. Multiple crescentic abrasions over an area 3x1 cm. clustered together on the left side of the neck 4 cm. above the inner end of coller bone.
5. Linear abrasion 1x0.1 cm. on the right side of the neck 7 cm.below the ear lobule.
Flap dissection of the neck was done under a bloodless field and the subcutaneous tissues underneath the injury Nos.3,4 and 5 showed infiltration of blood. The muscles of the neck showed ecchymoses in many places. The greater horn of the hyoid bone of the right side showed fracture. Thyroid gland showed a haemorrhagic area 1x1x0.5 cm. of the right lobe.
6. Lacerated wound 1x0.3x0.3 cm. on the inner aspect of right side of the lower lip 2 cm. outer to the midline.
7. Multiple linear abrasions over an area 2x1 cm. on the back of right arm 5 cm. above elbow.
8. Multiple linear abrasions over an are 4x2 cm. on the outer aspect of right arm 12 cm. below the top of shoulder.
9. Lacerated wound 1x1x0.3 cm. on the outer aspect of right index finger just above its tip.
10. Abrasion 2x1 cm. on the inner aspect of right elbow.
11. Abrasion 3x1 cm. on the front of left thigh 10 cm. above knee.
12. abraded contusion 10x4x1 cm. on the back of right shoulder 10 cm. outer to the midline and 4 cm. below top of shoulder."
The Doctor under the heading "other findings" had recorded that air passages were congested and they contained brownish colour mud. In Crl.A. No. 1898 of 2005 20 the certificate, the Doctor recorded that death was "due to the combined effect of throttling and drowning".
33. P.W.31, as we have already mentioned earlier, had recorded Ext.P1 First Information Statement given by P.W.1. He had registered Ext.P57 First Information Report at 3 a.m. on July 20, 2000. In fact, apart from the two appellants in this appeal, their mother Thressiamma was also implicated as Accused No.3 in the F.I.R. (However the trial had discharged her). P.W.31 stated that he had got a telephone message about the incident at about 12.45 a.m. When he reached the scene, he found Jojo lying dead with mud smeared all over his body. The paddy saplings in the field were found in a trampled condition. He further stated that he recorded Ext.P1 First Information Statement of P.W.1 at his residence at 2 a.m. He deployed police constables for scene guard duty. He went back to the police station at 3 a.m. and recorded Ext.P57 F.I.R.
34. In cross-examination, P.W.31 asserted that in the telephone message, which he received, he was informed that the accused had committed the crime. He denied the suggestion that Ext.P1 FIS was recorded by him at 8 a.m. on the next day.
35. P.W.32 conducted investigation of this case. He went to the scene of occurrence in the morning on July 20, 2000 and conducted inquest and prepared Ext.P49 inquest report. He also prepared Ext.P54 scene mahazar at about 11.15 a.m. and questioned the witnesses. He Crl.A. No. 1898 of 2005 21 seized the dresses worn by the accused as produced by P.W.23. The dress worn by P.W.2 (M.O.3 series) was also produced by P.W.23 under Ext.P51 mahazar. M.Os.1 and 2 X'mas card and letter were seized under Ext.P52 mahazar. He further stated that in the course of investigation, Exts.P2 to P48 statements were given by the various witnesses when they were questioned. M.O.4 series watch and ring belonging to the deceased were also seized under Ext.P54 scene mahazar. M.O.5 chappal worn by the deceased was also taken into custody. The accused could not be arrested immediately after the incident since they were absconding.
36. In cross-examination, the investigating officer stated that he was informed that the deceased had been wearing a gold chain weighing 1 and > sovereigns and was carrying two bags with dresses. He did not know anything about the cash of Rs.24,500/- being allegedly carried by the deceased. He further stated that P.W.17 had appeared before the police a few days later. He further stated that he had received a complaint earlier about the love affair between deceased Jojo and P.W.2. The place of occurrence was about four kilometres away from the police station.
37. We have referred to the oral testimony of the prosecution witnesses at length in our anxiety to highlight the fact that this case has unravelled a peculiar crime scenario. Significantly law was set in motion immediately after the alleged incident. This crucial factor is not Crl.A. No. 1898 of 2005 22 in dispute at all. Even P.W.1, who had ditched the prosecution admitted before the court that police had reached the scene of occurrence within half an hour. P.W.1 stated that he had informed one Mr.Ravi, the Secretary of the local Grama Panchayat about the incident, who, in turn, had telephoned the police. P.W.1 had admitted his signature in Ext.P1, which was recorded by the police at 2 a.m. According to P.W.1, the incident took place at about 12 midnight. He heard a loud cry from the paddy field about 60 metres on the south western corner of his house as could be seen from Ext.P53 scene plan. The fact that P.W.1, his father (P.W.7), mother (P.W.8) and sister (P.W.9) had reached the alleged scene of occurrence immediately on hearing a hue and cry from the paddy field is not in dispute at all. Similarly P.Ws.3 and 4 also reached the scene when the tragedy took place. All these witnesses candidly admitted this fact. But, it is true that they had given a go-by to what they had stated before the police incriminating the accused. These witnesses stated before court that they had not seen the incident. They also did not see the two accused pulling out the body of Jojo and dumping it at the property across the ridge of the paddy field. In fact, the paddy field belonged to P.W.3 and the adjoining property to his brother. It is significant to note that P.W.1 did not disown Ext.P1 FIS at all. However, he disowned the crucial portions of Ext.P1 statement incriminating the accused obviously with a view to help them for reasons only known to him. Crl.A. No. 1898 of 2005 23
38. The case of P.Ws.2, 3, 4, 7, 8 and 9 may be slightly different as compared to that of P.W.1. The police had recorded the statement of these witnesses under Section 161 of the Code of Criminal Procedure. Therefore, it can be argued that no significance can be attached to the so-called statements given by these witnesses to the police on the face of the accusation that they had resiled from their statements when they were examined before court. In this context, we may further note that P.W.1 admitted in his deposition that he had found the dead body of Jojo. He had found deceased Jojo lying with his eyes bulging and dirt smeared all over his body. He further stated that he saw some people going towards north.
39. P.W.3 was residing about 140 metres west of the scene of occurrence. This witness stated that he had found Jojo lying dead. The incident had taken place in the paddy field belonging to this witness. He stated that he had come out of his house on hearing the barking of dogs and somebody crying aloud. He went to the scene on hearing the noise and the cry for help. He stated that he did not see the accused at the scene of occurrence. At this stage, he was declared hostile. It is significant to note that in Ext.P1 statement, P.W.1 had mentioned the name of P.Ws.3 and 4 as having come to the scene of occurrence immediately on hearing the hue and cry. According to P.W.1, he had also proceeded to the scene of occurrence along with his parents and sister when he saw P.Ws.3 and 4 coming to the scene. P.W.4 also Crl.A. No. 1898 of 2005 24 admitted that he had reached the scene of occurrence along with P.W.3. P.W.5, as we had mentioned earlier, stated that he had not seen the alleged incident though, according to the prosecution, he had reached the scene along with P.W.6. He stated that he did not see anything at all. But he admitted that he was a neighbour of the accused.
40. It is in the above context that the evidence of P.W.6 assumes significance. Here is a witness, who stated that he had seen the incident while he was returning from the Rajakkad town to his house at Koothunkal. He had gone to Rajakkad town in order to meet a contractor, who owed some money to him. P.W.6 was a supplier of sand to contractors/builders. P.W.5 had asked for some money from P.W.6. Therefore, P.W.6 had asked P.W.5 to meet him in Rajakkad town where he expected to meet the contractor and get the money. But, according to P.W.6, he could not meet the contractor though he and P.W.5 waited for sometime. He was informed that the contractor may come back to office in the town a little later in the night. Therefore, P.W.6 went to watch a cinema along with P.W.5. After the movie, both of them tried to meet the contractor again, but they could not. Therefore, after taking tea from a shop, P.Ws.5 and 6 proceeded to Koothunkal where both of them resided along the Rajakkad - Koothunkal road on the west as could be seen from Ext.P53 scene plan. When they reached near the scene of occurrence, they heard a loud cry from the paddy field. According to P.W.6, he and P.W.5 went to the Crl.A. No. 1898 of 2005 25 spot from where the noise was heard.
41. We have already narrated what P.W.6 had deposed before court in the earlier part of this judgment. But the court below took the view that P.W.6 cannot be believed since he was only a "chance witness". The learned Judge proceeded to hold that the alleged presence of P.W.6 at the place of occurrence had not been "satisfactorily accounted for by the prosecution". The learned Judge went on to observe that it was not probable that P.W.6 would have walked 3= kms. in the night and reached the place of occurrence. One oddity noticed by the learned Judge in the conduct of P.W.6 was that he did not try to "prevent the crime". We are afraid that the line of reasoning of the learned Judge appears to be a little too far-fetched. In a remote village of a hilly district, it can never be strange, improbable or uncommon at all for people to rely on their feet to reach home and that too in the night. Admittedly, P.W.6 was on his way back to his home. There was not even a suggestion that this was not the normal route he had to take to reach his home. It cannot be expected that he should have hired a jeep. He had properly explained how he got delayed in Rajakkad town, Further, it was too much to expect from a stranger in the locality to intervene in a fight at that odd hour.
42. We have to necessarily read the evidence of P.W.6 along with that of P.Ws.1 to 5 and 7 to 10 in order to get a proper prospective of the crime. All the above witnesses had candidly admitted that they Crl.A. No. 1898 of 2005 26 had reached the scene of occurrence. It must also be remembered that all these people were living within a radius of about 250 metres. Their residences are at a slightly elevated position and the paddy field in question lay at a lower level.
43. It is true that P.Ws. 1 to 5 and 7 to 10 had turned hostile to the prosecution on certain crucial and vital aspects. But, in our view, there was a common thread running through the evidence of these witnesses, which was that, all of them had come to the scene of occurrence immediately after or just about when the incident took place. The presence of the accused at the scene of occurrence was reported to the police by P.W.1, as stated by him in Ext.P1, which he has not disowned. Ext.P1 definitely stands on a better footing in the eye of law.
44. It is in this context that the arrival of the police at the scene of occurrence also assumes significance. As has been mentioned by us earlier, the police had quite promptly recorded the statement of P.W.1 (Ext.P1) and registered the F.I.R. shortly thereafter. The two appellants herein and their mother were arraigned as accused within three hours from the time of occurrence.
45. The short question that may have to be considered is whether Ext.P1 FIS and Ext.P57 F.I.R. have to be totally discarded and the official acts done by the police have to be ignored. The other aspect that may have to be looked into is as to whether the evidence of Crl.A. No. 1898 of 2005 27 P.Ws.6 and 17 is to be eschewed in toto.
46. As we have noticed already, the love affair between P.W.2 and deceased Jojo was apparently known to all the residents in that locality. It had also come out in evidence that the appellants were totally against the relationship. We have to consider the evidence of the parents and brother of the deceased Jojo (P.Ws.13, 14 and 15) in this context. These witnesses had deposed before Court that they had gone to the residence of the accused along with P.W.16, four days prior to the incident requesting them to agree for the marriage alliance between P.W.2 and Jojo. We need not refer to the alleged exchange of words or altercation that followed in the course of the meeting that took place at the residence of the accused. But it is worthy to mention that Accused No.1 had allegedly thrown a threat that Jojo would be killed if he entered their property. It can be argued by the defence that this so- called threat which was allegedly made at the residence of the accused in the course of the heated exchanges has not been substantiated by any other corroborative evidence. Be that as it may, the fact remains that, going by the evidence on record, the relationship between the accused and Jojo was not cordial at all.
47. As has been noticed already, there is evidence on record to show that Jojo had gone to the residence of P.W.17 at about 10 p.m. on his way to the residence of P.W.2. P.W.17 stated that Jojo told him that he was going to take P.W.2 away with him since her relatives were Crl.A. No. 1898 of 2005 28 deadly against their relationship. P.W.17 further stated that Jojo and P.W.2 had come to his residence at about 11 p.m. on their way to some destination. It appears from the evidence that P.W.17 had seen the deceased last before his tragic death. The defence in the course of cross-examination of P.W.17 had made an attempt to discredit his testimony. P.W.17 admitted that he was involved in a "forest case". But, significantly, it has come out in evidence, as admitted by P.W.2 herself, that P.W.17 was residing as a tenant in the residential building, which belonged to Accused No.1. It also appears that he was the immediate neighbour of Accused No.1. The fact remains that the testimony of P.W.17 that he had seen Jojo and P.W.2 together at about 11 p.m. stood uncontroverted. P.W.17 admitted that he had gone away from the rented house after the incident for four or five days. But, admittedly he appeared before the police on the sixth day of the alleged incident. When he was examined in court, he had stuck to his version given to the police. But the court below held that the conduct of P.W.17 in leaving the locality after the occurrence was strange. The learned Judge proceeded to assume that P.W.17 had absconded but the investigating officer (P.W.32) deposed before court that P.W.17 had reported before him as directed, on the sixth day of the incident and given his statement about the incident.
48. In this context, it has to be remembered that, P.W.17 was admittedly residing in a building belonging to Accused No.1 as a Crl.A. No. 1898 of 2005 29 tenant. It had also come out from the evidence of P.W.17 that Jojo and P.W.2 had reposed some kind of faith or confidence in P.W.17 and his wife Valsa and confided about their plan. As has been noticed already, Jojo had come to the residence of P.W.17 in the night at about 10 p.m. on the day of the incident and told him that he was going to take P.W.2 away. According to P.W.17, Jojo and P.W.2 had gone via his residence at about 11 p.m. Even assuming P.W.17 had allegedly kept away from the locality for four or five days as alleged by the defence., it is not very hard to find a reason for this, because, admittedly, P.W.17 was in some way a party to the vain attempt of elopement made by P.W.2, the daughter of Accused No.1. Valsa, the wife of P.W.17 was rather close to Pw.2 as could be gathered from her deposition. But P.W.2 had contradicted her version given to Police in this regard when she was examined in Court (Ext.P11). In this context, the statement given by P.W.17 in re-examination that he had in fact received a threat from Accused No.1 may also have to be kept in view. It is true that P.W.17 had not spoken about the alleged threat received by him from Accused No.1 to anyone else. But, in the totality of the facts and circumstances, the conduct of P.W.17 cannot be "strange" at all as found by the court below.
49. We may refer to yet another significant aspect, which has come out in evidence. P.W.2 was examined by P.W.29 Doctor at 5.45 p.m. on July 21, 2000.
Crl.A. No. 1898 of 2005 30
50. It is seen from Ext.P55 wound certificate issued by the doctor, that PW2 was taken to him by a Police Constable as per the letter from the Circle Inspector of Police, Adimaly who was in charge of the investigation. Against column No.9 which pertains to "History and alleged cause of injury" it is seen recorded by the doctor thus:
"To find out the cause of injury"
While dealing with the evidence of PW29, we have already referred to the injuries found on the body of PW2. As against column no.18 relating to the cause of injury, the doctor noted as under "An incised wound caused by a sharp object"
51. PW29 had also examined accused No.2 on July 24, 2000 at about 2.20 pm, admittedly when he was taken to the doctor by Police Constable as per the requisition issued by the Circle Inspector of Police, Adimaly. Against Column no.9 pertaining to "History and alleged cause of injury" it was recorded thus:
"Alleged assault on 19.07.2000 at 11.45pm".
52. We have extracted the injuries noted by the doctor in the earlier part of the judgment. The doctor opined that the injuries found on accused No.2 could have been caused as alleged. In cross examination the doctor categorically stated that the cause of injury was stated by the patient.
53. We have referred to the evidence of PW29, the doctor and also the contents of the two certificates issued by him, (Ext.P54 and Crl.A. No. 1898 of 2005 31 P55) rather too elaborately only to high light two facts. (a) PW2 was examined by the doctor on the next day of the alleged incident, at the instance of the investigating officer. In the certificate the doctor had recorded that the purpose of examination was (obviously as requested by the police officer) to find out the cause of injury. In this context it may be remembered that PW2 had admitted before the court that she had sustained some injury on her hand. But according to her, the injury was caused while cutting grass. The prosecution case (though not admitted by PW2) is that the injury was sustained by her in course of the scuffle between the accused on one side and Jojo and PW2 on the other. It is the further case of the prosecution that PW2 was hit by the accused when she was found along with Jojo. It is further alleged by the prosecution that PW2 had tried to pull away accused No.2 while he attempted to push down the head of Jojo into the mud water in the paddy field.
54. It is significant to note that the age of the injury found on the body of PW2 was recorded in Ext.P29 as 25 to 30 hours. (The incident was around 12'o clock midnight on 19-20th and PW2 was examined by the Doctor at 5.45pm on 21st) It can be seen that the age of the injury approximately tallies with the time of the alleged incident.
55. Similarly the age of the injury found on the body of accused No.2 was noted by the doctor as 3 to 5 days. It may be remembered Crl.A. No. 1898 of 2005 32 that accused No.2 was examined by the doctor on July 24, 2000 after four days of the alleged incident. We do not propose to refer to the nature of the injuries found on the body of accused No.2 any further. As rightly pointed out by the Learned Public Prosecutor those injuries could have been caused in the course of the fight between Jojo and the accused. He further points out that the Scene Mahazar clearly showed (and as corroborated by PW3 and other witnesses) that paddy saplings in the field were found trampled and dishevelled. There were tell tale marks of a fight in the freshly cultivated paddy field.
56. While dealing with the evidence of PW30, who conducted the autopsy on the body of the deceased, it has been noticed that the death of the victim was due to the combined effect of throttling and drowning. Significantly the doctor had recorded 12 injuries which comprised of lacerated wounds/abrasions/contusions on the body of the victim. Injury No.5 (which we have already extracted in the earlier part of the Judgment) found on the neck turned out to be fatal. The muscles of the neck showed ecchymoses in many places. The greater horn of the hyoid bone of the right side showed fracture. Thyroid glands showed a haemorrhagic area 1X1X0.5cm of the right lobe. We have once again referred to the above fatal injury only to high light the fact that great force had been apparently used on the vital region of the body of the victim. It is also significant to Crl.A. No. 1898 of 2005 33 note that the doctor had recorded that the air passages were congested and contained brownish black mud particles up to their smaller divisions.
57. From the Post-Mortem findings there can be no doubt that deceased Jojo was murdered by throttling and drowning using brutal force. Of course the scene of occurrence clearly indicated that the victim had died after a big struggle. It is significant to note that the defence did not have a case that deceased Jojo was not done to death by somebody. In other words, it is not the case of the defence that deceased Jojo might have died due to some accident. So, it is a clear case of homicide. Then the only question that has to be answered is as to who was responsible for the murder.
58. At this juncture, we may yet again go back to the evidence of PW6 very briefly PW6 had seen the two accused in the act. His evidence was not discredited by the defence in any manner. He had deposed (in tune with what he had told the police) that the two accused were found in the paddy field on that night. Accused no.2 pushed down the head that popped up from the muddy water. The two accused were accurately identified by this witness in the court. The only reason stated by the trial court to disbelieve this witness was that he was "a chance witness". But we have already stated our reasons in the earlier part of this judgment, why such a faulty reasoning cannot be sustained.
59. Yet another significant aspect is the seizure of MO3(series) Crl.A. No. 1898 of 2005 34 dresses worn by PW2 and the accused from their residence. They were produced before the police by PW23, the wife of accused no.1 at 3.45pm on the day of the incident itself. All the dresses were found wet and smeared with mud. PW26 the mahazar witness, who was a neighbour of the accused of course turned hostile. After coming to the scene of occurrence the Police had prepared several contemporaneous records in the course of the investigation like Ext.P1 (F.I Statement), Ext.P57 (FIR), Ext.P51 etc. Significantly authenticity of Exts.P1 and Ext.P57 in which the accused were named at the very beginning itself, was not questioned at all by the defence. These contemporaneous documents cannot be ignored or overlooked unless it is shown by the defence that they were fabricated or cooked up. It may be noticed that witnesses to various mahazars and other documents had admitted their signature in them. The evidence of the parents and brothers of the deceased will establish the animosity of the accused towards the deceased. Their evidence could not be discredited by the defence in any manner. It is in the backdrop of the above material pieces of oral and documentary evidence available on record that we have to consider whether the prosecution case can be thrown out only because majority of the prosecution witnesses did not choose to support it.
60. It need only be emphatically stated that the judicial process cannot be allowed to be put to public ridicule and scorn. Judicial system is meant to reach out in aid of the aggrieved person. It is true Crl.A. No. 1898 of 2005 35 that in a criminal case the witnesses can frustrate the prosecuting and investigating agency by adopting wily and crafty methods. Witnesses whose statements are recorded under Section 161 of the Code can get away with impunity if they choose to ditch the prosecution for reasons best known to them. Hostile witnesses do very often step out of the court hall with a wild grin of victory on their faces; but the damage that is caused to the system is immeasurable. Here, in the case on hand, all the circumstances and pieces of evidence collected by the prosecution clearly revealed that the two accused were the perpetrators of the crime. The entire village knew what had happened. Many of them saw how the young man lost his life. But still, those people in whom the investigating agency had reposed faith, turned their back at the crucial moment. The result is that the credibility of the criminal judicial system is put to ridicule. This cannot be permitted. We do not propose to make any further observation in this regard.
61. Having carefully perused the entire evidence available on record. we have no hesitation to hold that the court below was not at all justified in holding that the prosecution case was not free from doubt. In our view, the prosecution has succeeded in proving the charge against the accused. The evidence on record will clinchingly show that the accused have committed the offence punishable under Section 302 read with Section 34 IPC. However there is no evidence to attract the offence under Section 201 IPC. Therefore the order of Crl.A. No. 1898 of 2005 36 acquittal is liable to be set aside. We do so.
62. We may conclude our judgment after referring to the decisions cited before us by the learned counsel appearing on either side. Learned counsel for the appellant, while inviting our attention to the limited power of this Court to interfere with the finding of acquittal, alerts us that the appellate court has to be extremely slow and circumspect in doing so.
63. In this context the learned counsel has invited our attention to the decision reported in Ghurey Lal v. State of Uttar Pradesh ((2008) 10 SCC 450). Their Lordships enumerated the following principles crystallized by a large number of judicial precedents on the point:
" 1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate court would have "Very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
(i) The trial court's conclusion with regard to the facts is palpably wrong.
(ii) The trial court's decision was based on an erroneous view of law;
(iii) The trial court's judgment is likely to result in "grave miscarriage of justice".
(iv) The entire approach of the trial Crl.A. No. 1898 of 2005 37 court in dealing with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
(viii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached--one that leads to acquittal, the other to conviction--the High Courts/appellate courts must rule in favour of the accused."
In the above decision the Apex Court while setting aside the order of acquittal passed by the High Court had noticed that the group clash between two factions had resulted in a scuffle. The trial court gave the benefit of doubt to the accused and acquitted them. But the High Court in appeal reversed the order of acquittal. The Apex Court found that the medical evidence and the evidence of ballistic expert clearly indicated that two shots from two different weapons must have been used. The possibility of accused exercising the right of private defence was also not discarded. It was in the backdrop of the above material pieces of evidence available on record that their Lordships held that the High Crl.A. No. 1898 of 2005 38 Court was not justified in reversing the order of acquittal passed by the trial court.
64. The learned Public Prosecutor has invited our attention to the decision of the Apex Court in State of Madhya Pradesh v. Dhirendra Kumar ((1997) 1 SCC 93). In this case the Apex Court held that the evidence of sole eye witness can be relied on to hold the accused guilty, if the evidence is creditworthy.
65. Learned Public Prosecutor, relying on the above decision, submits that the observation made by the trial court against the credibility of Pw.6 was unwarranted, and that too on the ground that he had not tried to prevent the accused from committing the crime. He further submits that Pw.6 cannot be termed as a chance witness at all since indisputably he was on his way back to his residence from Rajakkad town through the road running on the northern side of the paddy field.
66. In Satpaul v. Delhi Administration (AIR 1976 SC 294) the Apex Court had considered the question whether the entire evidence of a prosecution witness, who turns hostile and is cross examined by the Public Prosecutor with the leave of the Court, is to be discarded altogether. After discussing the law on the subject and referring to several earlier decisions of the Apex Court it was observed thus:
"From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and Crl.A. No. 1898 of 2005 39 contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto".
67. A similar view was expressed by a three Judge Bench of the Apex Court in Bhagwan Singh v. State of Haryana (AIR 1976 SC 202). It was held that the mere fact that the Court gave permission to the prosecution to cross examine his own witness who was declared as a hostile witness, does not completely efface his evidence. It was further held that the evidence of such witnesses remains admissible in the trial and there was no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. Crl.A. No. 1898 of 2005 40
68. In Thrimugh Maroti Kirkani v. State of Maharashtra (2006 (4) KLT 638 (SC) their Lordships of the Supreme Court have held that in a case entirely based on circumstantial evidence and in which no eye witness is available there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. The above principle, in the facts and circumstances of this case, may not have any direct application. But still it assumes some significance and lends support to the prosecution case.
69. We have kept in view the principles laid down by their Lordships in the decision in Ghurey Lal while reviewing the evidence in this case. Having carefully perused the judgment of the trial court, we have no hesitation to hold that the conclusion arrived at by the court below is palpably wrong. We have also no hesitation to hold that the trial court's decision is based on an erroneous view of law. More importantly, the order passed by the court below will definitely result in grave miscarriage of justice not only to the family of the victim, but to the entire society at large. Not only is the judgment of the trial court manifestly unreasonable and illegal, it is also vitiated by irrational conclusions. Having given due weight and consideration to the evidence available on record, we are satisfied that only one view Crl.A. No. 1898 of 2005 41 leading to the irresistible conclusion of the guilt of the accused is possible.
70. In the result, while setting aside the order of acquittal, the respondents/accused are found guilty under Section 302 read with Section 34 IPC and convicted and sentenced thereunder to undergo imprisonment for life and also to pay a fine of Rs.25,000/- each. In default of payment of fine, they shall suffer rigorous imprisonment for two years each. On realisation of the fine amount, it shall be disbursed to Pws.13 and 14, the parents of deceased Jojo.
71. The respondents shall be taken into custody forthwith and committed to prison.
The appeal is allowed.
A.K. Basheer, Judge.
sl/an/rav. P.S.Gopinath, Judge.