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2009 Supreme(Ker) 826

High Court of Kerala
THE HONOURABLE MR. JUSTICE K. BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P. BHAVADASAN
Rijo Joseph
Versus
State of Kerala
CRL.A.No.1804 of 2005
Decided on : 14-10-2009

Advocates Appeared:For the Petitioner:B. Raman Pillai, Advocate. For the Respondent: Public Prosecutor

Headnote:

A. Penal Code, 1860 - Section 302, Section 307 , Section 449 - Offence of Murder - Confession Statement - Recovery of several articles have been effected in furtherance of the statements - Appeal against conviction - Plea of alibi - Held, It is trite that when a plea of alibi is taken, the burden of proof is on the accused to establish the said fact. While the prosecution has to establish the case beyond reasonable doubt, the degree of proof as far as accused is concerned is only preponderance of probabilities - erocious attacks on the victims, deceased Mariyamkutty and P.W.1, the number of injuries inflicted and the manner in which it was inflicted and the gravity of those injuries would clearly reveal the intention or motive of the accused - Conviction affirmed - Appropriate Government choose to exercise power under Section 432 or Section 433 of Criminal Procedure Code subject to Section 433A of Code, set off as per law will be allowed - Appeal dimissed

B. Indian Evidence Act - Sections 25 and 26, 27 - Evidence of Witness - Reliability of - Interested witness - Held, evidence of witnesses should be read as a whole - Evidence of witnesses cannot be rejected on flimsy grounds - Two necessary ingredients to constitute a statement to be admissible under Section 27 of the Indian Evidence Act are i) the statement should disclose the authorship of concealment and ii) it should disclose the factum of concealment. As noticed, Section 27 is an exception to Sections 25 and 26 - In the case of interested witnesses, law is to the effect that such evidence should be scrutinised very carefully. But there is no rule that it should be rejected. If the evidence of the witnesses appear to be creditworthy and it stands scrutiny, it will be highly unjust and in fact illegal to reject the evidence labelling them as interested witnessesIn the case of interested witnesses, law is to the effect that such evidence should be scrutinised very carefully. But there is no rule that it should be rejected. If the evidence of the witnesses appear to be creditworthy and it stands scrutiny, it will be highly unjust and in fact illegal to reject the evidence labelling them as interested witnesses

Judgment :-

Bhavadasan, J,

This case discloses the story of a good student, well behaved boy, liked by his teachers and companions, and who had considerable expectations about him, transforming into a villain and landing in prison. If true, this is a typical instance where a teenage boy exposed suddenly to the outside world got caught in the mesh of luxurious life and drugs, and ruined himself. His parents had toiled hard to fund his studies. They borrowed money from people and people generously contributed. Nobody noticed the transformation that was going on in him, until it culminated in a shocking incident on 16.6.2000.

2. 16.6.2000 morning turned out to be a horrifying one to the people of Neeleswaram Kara, Kalady Village. The story goes thus:

The deceased, the injured, P.Ws. 2 and 4 reside in the same house. P.Ws. 5 and 6 are neighbours. P.W.6 is the sister of P.W.5. Though P.W.6 was married, she was staying with her brother since her mother was ill at the relevant time. In fact the accused and the witnesses knew each other very well. It would appear that the family of the deceased used to extend financial aid to the accused, to continue his nursing course in Karnataka, since quite often P.W.16, the father of the accused found his income insufficient to meet the education and other requirements of his son.

3. The incident occurred on 16.6.2000 at about 7.30 a.m. P.W.5 is a salesman. He was taking his bath. P.W.5 and P.W.6 heard the wails of P.W.1. They rushed to the spot from where the cry had come. They found P.W.1 lying near a nut-meg tree. They asked her what had happened. She was bleeding from wounds on her body. She said that it was the accused who had caused the wounds. She asked for water. It was raining. Water that had collected near the nut-meg tree was given to her by P.W.6. P.W.4, the husband of P.W.1, had left for work early in the morning on that day. Hearing the cries, other people also gathered at the spot. P.W.1 told them that her mother-in-law was lying behind the house. Some of the people, who had gathered, picked up the mother-in-law from there and laid her on the varenda. P.W.1 was also laid on the varenda. P.W.4 was informed. Vehicles were brought and the injured were removed to the hospital. C.W.21, who is closely related to the deceased was informed over phone. He went to Little Flower Hospital, Angamaly, where the injured had been taken. He found the deceased in an unconscious state. But P.W.1 had regained consciousness. P.W.19, the Doctor, had attended to them at Little Flower Hospital. Ext.P15 is the wound certificate relating to the deceased, and Ext.P20 is the wound certificate of P.W.1. C.W.1 came to know of the details from the hospital. Getting intimation of the incident at Kalady Police Station, ASI, C.W.44, went to the hospital. As the injured was unable to give statement, the statement was taken from C.W.21, who furnished Ext.P21 first information statement. C.W.44 is no more. C.W.44 then registered crime as per Ext.P22 FIR. Meanwhile, Mariyamkutty, the mother-in-law of P.W.1 died in the hospital on 20.6.2000. P.W.24, the Circle Inspector of Police, had taken over investigation on 16.6.2000. He had prepared Ext.P4 scene mahazar. He had also recovered blood stained plastic bucket, pillow cover and blood stains from the scene of occurrence. He directed P.W.23 to conduct inquest over the body of Mariyamkutty. Thereupon, P.W.23 conducted the inquest and prepared Ext.P13 report. As authorised by P.W.24, P.W.23 arrested the accused on 20.6.2000 at about 11.15 a.m. and produced him before P.W.24. Ext.P11 mahazar was also prepared. The bag and other materials in the possession of the accused at the relevant time were seized, i.e., M.O.7, bag and its contents, M.Os.15 and 16 etc. In the meanwhile the body of Mariyamkutty was sent for postmortem examination. P.W.20, the Forensic Surgeon conducted autopsy over the body of Mariyamkutty and prepared Ext.P17 report. P.W.24 recorded the statement of witn






















































































































































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