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2022 Supreme(Ker) 660
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.Vinod Chandran, C. Jayachandran, JJ.
Mohammed Nisam A.A.@Muhammed Nisham A.A. And Ors. – Petitioner
Versus
State Of Kerala, Represented By The Public Prosecutor – Respondent
Appeal Nos. 320 of 2016, 245 of 2017 and 233 of 2016
Decided On : 16-09-2022
Advocate Appeared:
For the Petitioner: Sri.Raman Pillai (Sr.) Assisted By, Adv.Sri.George Briston, Sri.P.Vijayabhanu (Sr.), R.Anil, M.Sunilkumar, Sujesh Menon V.B., Mahesh Bhanu S., Nikita J. Mendez
For the Respondent: Sri.Gracious Kuriakose, Addl. Director General Of Prosecution Assisted By Sri.C.K.Suresh, Sr.Government Pleader
Point of Law : Sentence of imprisonment of life - Sentence of imprisonment for life means imprisonment for the rest of the life of the convict subject only to remission as provided under the Constitution and under the Cr.PC
Headnote:
Penal Code, 1860 – Ss.323, 324, 326, 302, 427, 449 & 506 – Offence of Murder – 'Cultural Capital' - Sentence of imprisonment of life – Power of remission – Sentence of imprisonment for life means imprisonment for the rest of the life of the convict subject only to remission as provided under the Constitution and under the Cr.PC. As far as the remission under the Constitution is concerned it has been categorically held that there can be no restriction placed on such powers, judicially
Finding of the Court :
Discretion exercised by the High Court should not be interfered with, unless there are exceptional circumstances - The learned Judges also opined that but for the discretion exercised by the High Court in commuting the death sentence, on the facts arising therein, of a whole family having been eliminated, their Lordships would have been inclined to conform the death sentence awarded by the trial court - State Government, being the appropriate Government herein and if the State is of the opinion that the instant crime is one which should not be considered for remission - No reason to interfere with the sentence imposed by the trial court and agree with the trial court that it is not one of the rarest of the rare cases
Result : Appeal dismissed
Yes, the provided legal document discusses the reliability of witnesses in several contexts. It highlights that certain witnesses initially turned hostile or gave contradictory statements, but the court carefully examined their demeanour, the consistency of their testimony over time, and the corroboration by other evidence before accepting their testimonies. For example, the court found that a witness who initially turned hostile and then recanted his false statements did so after being influenced by threats and media attention, but the court ultimately deemed his subsequent testimony credible after observing his demeanour and considering the circumstances (!) (!) .
Furthermore, the court addressed the issue of omissions and contradictions in prior statements, emphasizing that not all discrepancies necessarily undermine the credibility of a witness, especially when the core facts are corroborated by other evidence and the omissions are not material. The court also noted that witnesses who are consistent in their testimonies, even after initial hostility, and whose statements are supported by ocular and scientific evidence, are reliable. The court took a cautious approach, considering the totality of the circumstances, demeanour, and corroborative evidence before accepting the witnesses’ credibility (!) (!) (!) .
In summary, the document recognizes that initial hostility or contradictions in witness statements do not automatically render their testimony unreliable. Instead, the court assesses credibility based on demeanour, consistency, corroboration, and the absence of material falsehoods, especially when the core facts are supported by other evidence.
JUDGMENT :
Vinod Chandran, J.
The 'Cultural Capital' of the State woke up, to the news of a thoroughly uncultured act, adding chill to the otherwise cold January morning. A frenzied attack by a resident of an apartment complex, on an employee of the complex, with a powerful vehicle; resulted in the victim sustaining very grievous injuries to which he succumbed eighteen days later, during which period he was continuously in the Intensive Care Unit of a hospital. The prosecution allegation is that the accused who approached the complex in the very early hours of 29.01.2015; incensed with the staff at the entrance of the complex having delayed to raise the electronic barrier for his smooth entry into the complex, went on a rampage. The accused parked the vehicle, got out of it and unleashed a vocal tirade against the staff, which was respectfully questioned by the deceased. Furious with that, the accused assaulted the deceased, who, first hid inside the security cabin. When the accused gained entry into the cabin by smashing the window panes and started assaulting him, he jumped out of it and ran on to the curb, near the fountain at the entrance itself. The accused then got into his car, chased the running man, took the car over the curb, intentionally hitting the victim with the car, a high-end, powerful one, by name Hummer. The victim was thrown down and the car swerved onto the fountain, one tyre of which burst on the impact. The car was taken out of the fountain, the victim further assaulted and bundled into the Hummer by the accused. The Hummer was then taken around the fountain, back to the entrance where the wife of the accused; who came in another car from inside the complex, having been summoned over telephone, entered the Hummer which was driven into the parking area of one of the apartment buildings, by name Topaz. There, the victim was pulled out of the vehicle and further assaulted physically, by which time the Police arrived. The victim was taken to the Hospital and the accused to the Police Station. This is the long and short of the prosecution case on which the trial was conducted.
2. The prosecution examined 22 witnesses in the trial and marked documents from Exts.P1 to P65(a); many in series. Material Objects, MO1 to MO24 were produced, of which MO1, MO6, MO18 & MO24 were in series. The Court marked one Exhibit as Ext.C1. The defence examined 6 witnesses and marked Exts.D1 to D57; again many in series. The trial Court convicted the accused under Ss.323, 324, 326, 302, 427, 449 & 506 of IPC and acquitted him on the charges under Ss.341 & 294(b) IPC. The accused was imposed with the sentence of imprisonment of life under S.302 IPC and fine of Rs.70 lakhs; out of which Rs.50 lakhs was to be paid as compensation, to the family of the victim, under S.357(1)(b) of Cr.P.C which was to be received by the wife of the deceased. Various terms of sentences were also imposed under the other provisions, with a fine totalling Rs.1,30,000/-under S 326, 427 & 449 IPC and suitable default sentences were also provided. Three appeals are before us, one, of the accused, against the conviction and sentence, the other, of the owner of the vehicle against the order in a Crl.M.A refusing to release the vehicle to the applicant and another, by the State seeking capital punishment for reason of the accused having unleashed a merciless attack on a defenceless person, especially the act of having used a car to mow him down and thus murder him.
I. THE DEFENCE:
3. Sri. B Raman Pillai, learned Senior Counsel appearing for the accused, instructed by Sri. Sujesh Menon made a scathing attack on the prosecution, the medical evidence and the investigation. It was argued that all, conspired together to nail the accused with murder, when actually the accused was at the receiving end. An accident occurred when the accused was fleeing from the aggressors; that too on the deceased, one of the aggressors, trying to stop him. The prosecution, he styled as
