Point of Law: Testimony of eye witness - Subsequent conduct of eye witnesses is very relevant in considering their reliability.

JUDGMENT

Vinod Chandran, J.

A party to celebrate the marriage eve, turned disastrous to one of the invitees. The prosecution case is that on the evening of 28.01.2006, while the party was going on, there ensued two scuffles between the accused and the deceased; which, later led to the accused beating the asleep deceased, with a wooden stick, grievously injuring him resulting in his death after four days.

2. The incident is said to have occurred on the night of 28.01.2006, after which the victim was taken to various hospitals and eventually admitted in the Medical College Hospital, Kottayam. The victim succumbed to his injuries on 01.02.2006 at about 8 p.m. The accused was charged with the murder of the deceased and stood trial. The trial court convicted the accused and sentenced him to life imprisonment under Section 302 I.P.C which was specified to be not less than 14 years. The accused was also directed to pay Rs.1,00,000/-as compensation, and in default to undergo simple imprisonment for five years; which compensation was directed to be paid forthwith, failing which the default sentence would run first before the commencement of the substantive sentence. The prosecution examined 14 witnesses, marked two material objects and Exts.P1 to P11 documents.

3. Shri Pranoy K.Kottaram appeared for the accused and meticulously took us through the depositions and referred to the documents wherever appropriate. The learned counsel argued that the circumstances brought out by the prosecution clearly indicate a delay in registration of the F.I.S. It was registered by a person who was not at all involved in the incidents alleged and the statements recorded were all hearsay. PW1 who gave the FIS, did not speak of any of the details regarding the information received by him in his testimony. PWs6 to 8 and 10, who are the material witnesses contradict each other, with respect to the scuffles, which is alleged to be the motive of the crime. Even if believed, they are guilty of suppression of information regarding a crime, till the death of the victim occurred; which suppression assumes ominous proportions by reason of the circumstances of the crime. In fact it is the clear deposition of the Investigating Officer (I.O) that the said witnesses were suspects who were also placed in custody. It is based on the unreliable evidence of the suspects, who are also guilty of gross suppression, that the trial court convicted the accused.

4. It is pointed out that PW6 spoke of having informed a Police Constable, one Vijayan and the father of the deceased is said to have raised a complaint regarding the death of his son. The son of PW10, also accompanied the injured to the Hospital. None of these material witnesses were examined; cutting at the root of the prosecution case as has been held by the Hon'ble Supreme Court in Machindra V. Sajjan Galpha (2017) 13 SCC 491). It is argued that admittedly a friend of the son of PW10, one Ratheesh, who too attended the party was missing after the incident. No investigation has been carried out regarding the said person. PW6 allegedly slept with the victim and woke up on hearing a sound, to see the accused beating the victim with a stick. PW6, however, does not accompany the victim to the Hospital nor does he make a statement before the Police Station; which is quite near to the scene of occurrence. PW8 who also speaks of having seen the accused standing besides the injured, with the weapon of offence, did not disclose the alleged involvement of the accused. PW10, who came to the scene of occurrence immediately thereafter and who accompanied the injured to the hospital, gave a different version at the Hospitals. The information given to the hospital was the injury having been caused by a fall from a height. The subsequent conduct of eye witnesses is very relevant in considering their reliability, as has been held in Jarnail Singh V State of Punjab ((2009) 9 SCC 719).

5. The Hospitals did not intimate the police, obviously s