2006 Supreme(SC) 1317

2006(8) Supreme 1014
SUPREME COURT OF INDIA
(From Kerala High Court)
S.B. Sinha & Markandey Katju, JJ.
Acharaparambath Pradeepan & Anr. - Appellants
versus
State of Kerala - Respondent
Criminal Appeal 1278-1279 of 2005
Decided on 15-12-2006
Counsel for the Parties :
For the Appearing Parties : Mahesh Jethmalani, J.C. Gupta, Yashank Adhyaru, Sr. Advocates, C.N. Sree Kumar, K. Gireesh Kumar, P.V. Surendranath (for G. Prakash), R. Satish, Ramesh Chandra Patra and K. Rajeev, Advocates.

IMPORTANT POINT
Evidence of a chance witness requires a close scrutiny.Some improvements in the testimony of a witness would not lead to rejection thereof in its entirety.
Defective investigation by itself may not lead to a conclusion that the accused is innocent.

Headnote:(i) Indian Evidence Act, 1872 – Section 118 – Chance witness – Evidence of a chance witness requires a close scrutiny. (Para 36)

       (2004) 11 SCC 253 – Relied upon.

       (ii) Indian Penal Code, 1860 – Section 302/149 r/w Section 7, Indian Evidence Act, 1972 – A3 and A6 were identified by the child witnesses, but they were not included in the TI parade – There was un-explained delay in conducting the TI parade and it was conducted in a slipshod manner – accused are entitled to benefit of doubt. (Paras 40 and 41)

       (iii) Code of Criminal Procedure, 1973 – Section 231 – It would be too much to expect of any person to say everything in his statement before the police – To see a person by face is one thing but to know him by his name is different – Some improvements in the testimony of a witness would not lead to rejection thereof in its entirety. (Para 46)

       (iv) Indian Evidence Act, 1872 – Section 118 – It is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of child witnesses – The opinion of the learned Judge had been recorded and, thus, it satisfies the test laid down by this Court – On the said premise the child witness was believed – PW5, therefore, had been corroborated by PWs 3, 4 and 6 – This is a case where the children have shown a rare and strong courage, which their teachers have failed to show. It was expected that the teachers would speak out the truth but they did not – The prosecution witnesses are also supported by the medical evidence.(Paras 53, 56, 60, 62)

       AIR 1952 SC 54; (2004) 1 SCC 64; 2006 (10) SCALE 369; (2003) 5 SCC 746 – Relied upon.

       (v) Indian Penal Code, 1860 – Section 302/149 – Testimonies of PWs 3 to 6 so far as A1 is concerned being trustworthy and can be believed notwithstanding delayed and defective investigation – Defective investigation by itself may not lead to a conclusion that the accused is innocent – The case of A1 cannot be said to be a rarest of rare case warranting imposition of the extreme punishment – Death penalty converted to rigorous imprisonment of life. (Paras 69, 70, 73 and 75)

       (2003) 6 SCC 73; (2003) 10 SCC 414; Criminal Appeal Nos. 867-868 of 2005 – Relied upon.

       Facts of the case :

       (A)K.P. Jayakrishnan Master (deceased) was the class teacher of class VI B in the Mokeri East U.P. School, Paramel, Kannur Distt., Kerala.

       (B)The deceased was the State Vice President of Bhartiya Yuva Morcha. Appellants were members of the Communist Party of India (Marxist Group). Political enmity between the two parties is not in dispute. There had been A threatening to the life of the deceased. He had been provided with personal security. At the time of incidence, the body guard of the deceased was sitting at the gate of the school. He was overpowered by pouring some poisonous liquids in his eyes and mouth and his service pistol was taken away to prevent any possible obstruction that he may cause. He was, thus, made immobile.

       (C)While the deceased was teaching in class VIB, the accused persons entered the class. A1 and A4 assaulted the deceased with iron rod on the back of his head. He cried ‘Oh Mother’ and then ran for safety. A1 chased him inside the classroom. He was inflicted with further blows with iron rods several times on different parts of his head. A4 also attacked him with deadly weapons like iron rod, large chopping knife, axe, etc. A7 also chased him and inflicted injuries. The deceased made a futile attempt to escape, ran towards the south-eastern corner of the classroom near the blackboard. At that time, A2, A3 and A6 came from the eastern side of the classroom, trespassed thereinto and attacked the deceased. He suffered as many as 44 injuries on his person. The assailants thereafter wrote a warning on the blackboard of Class VA threatening the witnesses with dire consequences in case anybody dares to depose against them. The prosecution case furthermore is that Accused No. 5 Rajan (A5) had taken his possession in an adjoining compound near the classroom in question with a view to scare away any possible intruders.

       (D)The Circle Inspector (PW29) of the police station received an anonymous telephone call about the incident. He came to the school. The class teacher of Class VA Vijayan Master (PW1) was thereafter taken to the police station. He lodged a First Information Report at about 11.15 a.m. The First Information Report was recorded by PW28.

       (E)The prosecution case, therefore, is that a criminal conspiracy was hatched by the accused to do away with the deceased wherefor they formed themselves into members of an unlawful assembly with the common object of committing his murder.

       (F)PW1, however, turned hostile. The main eye-witnesses who were examined on behalf of prosecution are child witnesses.

       (G)Findings of the Court: A1 is guilty of murder but the crime is not rarest of rare warranting death sentence.

       (H)Other accused are entitled to benefits of doubt.

       Result : (1) Criminal Appeal Nos. 1278-1279 of 2005, so far as A1 is concerned, is dismissed subject to the modification of sentence to the extent mentioned hereinbefore and that of A4 is allowed.

       (2) Other accused persons are given benefit of doubt and they are acquitted. Criminal Appeal Nos. 1280-1281 of 2005 are allowed.