1998 Supreme(SC) 354

1998(3) Supreme 192
Supreme Court of India
(From Kerala High Court)
M.K. Mukherjee and S.S. Mohammed Quadri, JJ.
George & Ors. -Appellants
versus
State of Kerala & Anr. -Respondents
Criminal Appeal Nos. 1921-1923 of 1996
Decided on 18-3-1998
Counsel for the Parties :
For the Appellants : U.R. Lalit, Sr. Advocate, E.M.S. Anam, Advocate.
For the Respondents : K.M.K. Nair, (Vijay Kumar) Advocate for Ms. Sangeeta Kumar, Advocate.

Important Point
No doubt the High Court did not deal with and dispose of the appeal against acquittal strictly in accordance with settled principles but on a comprehensive view of the materials on record High Court’s order of conviction and sentence of A1 for murder of deceased by house trespass cannot be disturbed. The conviction and sentence recorded for A2 and A3 are, however, liable to be set aside for the reasons stated.

Headnote:(i) Indian Penal Code, 1860-Sections 302/34 and 449-Trial of seven for various offences including murder by house trespass-Trial Court acquitting all-High Court setting aside acquittal of three A1 to A3-Appeal against acquittal u/s 379 Cr.P.C. r/w Section 2 of Sup­reme Court (Enlargement of Criminal Appellate Jurisdiction) Act-Trial Court’s acquittal based on plausible reasons that P.W. 3 (mother of deceased) had not actually seen the incident nor she could identify the assailants due to oldage and insufficient light-Dying declara­tion to P.W. 3 and P.W. 4 (a neighbour) was not reliable due to confu­sion about name of A1-Identification without T.I. parade was valueless-Evidence of P.W. 50 (driver of vehicle) was not reliable-High Court’s interference whether in accordance with settled principles?

       Held : There is some substance in the above contentions of Mr. Lalit: firstly, because the High Court did not deal with and dispose of the appeal strictly in accordance with the above quoted principles and secondly, because the aspect of T.I. parade was not at all considered by the High Court. Our endeavour, therefore, will be to reassess the evidence, more so, when this is a statutory appeal, in the light of the findings of the trial Court. Since the reasoning of the trial Court in this regard is based on non-consideration of material evidence it must be held to be patently wrong. (Paras 23 & 24)

       Held also : Want of evidence of earlier identification in a T.I. parade does not affect the admissibility of the evidence of identification in court. (Para 25)

       It cannot be denied however that though not fatal, absence of the corroborative evidence of prior identification in a T.I. parade makes the substantive evidence of identification in Court after a long lapse of time a week piece of evidence and no reliance can be placed upon it unless sufficiently and satisfac­torily corroborated by other evidence. We have, therefore, to ascertain whether the other evidence adduced by the prosecution lends implicit assurance to the evidence of P.W. 3 regarding her identification of the appellants as the assailants. We are at a loss to understand how the trial Court could come to the conclusion that P.W. 3 had admitted that she had seen the accused a day before she testified in Court. On the contrary, the above state­ment of P.W. 3 does not in any way belie or weaken the prosecution case that she had seen the accused on the day of the incident and thereafter in Court at the time she was being examined. This apart, the answer elicited from P.W. 54 only indicates that he felt (which in our view was wholly wrong) that as the witnesses (which obviously included P.W. 50) had identified the accused he did not think it necessary to pray for T.I. parade. In any view of the matter the above statements do not support the submission of Mr. Lalit nor the conclu­sion drawn by the trial Court. (Para 29)

       (ii) Evidence Act, 1872-Sec­tion 32-Dying declaration made by de­ceased before P.W. 3 (mother) and P.W. 4 (neighbour) - Trial Court rejecting-Whether its reasons of rejection are correct?-(No) -Ef­fect - [Cr.P.C. 1973-Sec­tions 162 and 174(1)].

       Held : It is trite that an FIR is not substantive evidence (unless of course it is admitted under Sec­tion 32(1) of the Evidence Act) and can be used to corroborate or contradict the maker thereof; and, therefore, the question of corrobo­rating P.W. 1 by his purported statements, as contained in Ext. P.1 could not arise. Inspite thereof the trial Court observed ‘......the first informant statement is further supported by the evidence of P.W. 1’ and used the statements contained therein (Ext. P.1) as substantive evidence to discredit P.Ws. 3 and 4. It must, therefore, be said that the approach of the trial Court in dealing with the FIR was legally impermissible. We are also surprised to find that the trial Court disbelieved P.Ws. 3 and 4, relying upon the statements contained in the inquest report (Ext. P.8). Statements contained in an inquest report, to the extent they relate to what the Investigating Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 Cr.P.C. (Para 30)

       The whole purpose of preparing an inquest report under Section 174(1) Cr.P.C. is to investigate into and draw up a report of the appar­ent cause of death, describing such wounds as may be found on the body of the deceased and stating in what manner, or by what weapon or instrument, if any, such wounds appear to have been inflicted. That the inquest report was not the statement of any person wherein all the names of the persons accused were to be mentioned. On this ground also the finding of the trial Court based on the inquest report cannot be sustained. (Para 31)

       Held then : Now that we have demonstrated that the principal reasons put forward by the trial Court for discarding the dying declaration are patently wrong and opposed to the fundamental principles of criminal jurisprudence, we have to ascertain for ourselves whether the evidence adduced by the prosecution to prove the same can be safely relied upon. Having carefully gone through the evidence of P.Ws. 3 and 4 we find no justifiable reason to disbelieve their assertion that Sasi made a statement that Urulikunnam Vakkachan stabbed him. (Para 32)

       (iii) Identification of Accused 1-Whether A1 is Urulikunnam Vak­kachan mentioned by the deceased in his dying declaration?-(Yes). (Para 33)

       (iv) Motive of crime-Deceased had named A1 as a person who was in league with police and was indulging in nefarious activities in his report for Journal-Rejected by Trial Court-Whether correct?-(No)-Assuming Trial Court was right-Effect. (Para 34)

       Held : There is no confusion in the identity, for while in the report the deceased had given the sobriquet of the deceased along with the name of the village where he resides, in his dying declara­tion he gave out the name by which he is known to all, including P.W. 50, and also addresses himself. Both motive of A1 for committing the murder as also his identity as one of the participants in the murder thus stand established. (Para 34)

       Even if we were to assume that the person named in the report (Ext. P.31) referred to someone other than A1 it would not have af­fected in any way the prosecution case regarding the identity of A1 as one of the assailants in view of our earlier findings based on the evidence of P.Ws. 3 and 4, for it would have only meant that the prosecution failed to prove the motive ascribed to A1 for committing the murder. In any view of the matter, the identity of A1 as one of the assailants, as stated in the dying declaration of Sasi, cannot be doubted. (Para 35)

       (v) Evidence Act, 1872-Section 9-Evidence of P.W. 50 driver of vehicle used by accused-Trial Court rejecting on reasons factually incorrect-Effect-High Court upheld on conviction and sentence of A1 but set aside as to conviction and sentence of A2 and A3.

       Held : The evidence of P.W. 50 goes to prove that his vehicle was hired by A1 and all the accused persons including A1 had gone in his vehicle and got down at Sarvathra junction. His evidence further proves that a little later they came back and again got into the car. His evidence, therefore, is an incriminating circumstance, more so when we find that the house of the deceased was at a distance of 150 mtrs. from the junction. (Para 37)

       Held finally : On a comprehensive view of the materials on record we are fully satisfied that the prosecution has been able to prove beyond all reasonable doubts that A1 was among the assailants, as testified by P.W. 3 and fully corroborated by the dying declaration made by the de­ceased before P.Ws. 3 and 4. The evidence of P.W. 50 also lends assur­ance to the above conclusion of ours. So far as the other appellants are concerned we feel that they are entitled to the benefit of reason­able doubt, having regard to the fact that their identification in Court for the first time was not corroborated by any identification in a T.I. parade earlier held nor by the dying declaration. It is of course true that the evidence of P.W. 50 corroborates the evidence of P.W. 3 regarding their identification but we feel that we will not be justified in raising a conclusive inference, relying thereupon that they were also amongst the miscreants. Besides, the prosecution has not ascribed any motive to them for committing the murder. (Para 38)

       On the conclusions as above we uphold the convictions and sentences of A1 (George @ Vakkachan) as recorded by the High Court, but set aside the con­victions of A2 and A3. Resultantly, we direct that A2 (Rajeev) and A3 (Joshy), who are in jail, be released forthwith unless wanted in connection with any other case. The appeals are thus disposed of. (Para 39)