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2022 Supreme(Online)(Ker) 76735
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K VINOD CHANDRAN, C. JAYACHANDRAN, JJ
C.A.KANNAN – Appellant
Versus
VISHWAMBARAN T.V. @ VISHWAN – Respondent
CRA(V) NO. 906 OF 2018 | Crl.Appeal No. 1098 of 2018 | SC No. 1084/2012
For the Appellants/Petitioners: J.JULIAN XAVIER, SRI.JOSE. V.V. (THENGATHARA)
For the Respondents: SRI.S.RAJEEV, SRI.K.K.DHEERENDRAKRISHNAN, SRI.V.VINAY, SRI.ALEX.M.THOMBRA, SR.PP
A conviction based on an accomplice's testimony requires corroboration; credibility and reliability are critical considerations, especially when intoxication may impair witness memory.
Headnote:(A) Indian Penal Code - Sections 302, 201, and 304 - Appeal concerning homicide conviction and acquittal - The court had to determine issues of credibility of witness, specifically an accomplice, and the sufficiency of evidence corroborating guilt - Allegations involved homicide by drowning or accidental drowning due to excessive alcohol consumption - Verdict noted critical discrepancies and lack of credible evidence from testimonies. (Paras 1-4, 19-36)
(B) Evidence Law - Sections 133 and 114 - Accomplices: Court emphasized the necessity of corroboration for convicting based solely on an accomplice's testimony, due to inherent unreliability. (Paras 9, 10, 11, 12)
(C) Credibility of Witnesses - The court found the prominent witness severely intoxicated at the time of the incident, significantly undermining the reliability of his account. (Paras 22-24)
(D)
Findings of Court:
The evidence did not convince the court of the accused's guilt beyond a reasonable doubt, primarily due to unstable witness credibility and alternative explanations for the death. (Paras 35, 36) (E)
Issues: The court addressed the determination of whether the death was a homicide or an accidental drowning and the reliability of the evidence. (Paras 2, 6) (F)
Ratio Decidendi: The court ruled that the evidence against the accused was insufficient, leaning toward the theory of accidental death, thus leading to the acquittal of the first accused. (Paras 34-36) (G)
Result: Crl.Appeal No. 1098/2018 allowed; Crl.Appeal (Victim) No. 906/2018 rejected. First accused set at liberty. (Paras 36)
| Table of Content |
|---|
| 1. overview of the case and its implications. (Para 1 , 2 , 3 , 4) |
| 2. arguments challenging the credibility of the prosecution's key witness. (Para 5 , 6) |
| 3. victim's counsel and public prosecutor supporting the prosecution case. (Para 7 , 8) |
| 4. discussion on the legal principles governing the evidence of an accomplice. (Para 9 , 10) |
| 5. examination of the inclusion of corroborative evidence. (Para 11 , 12) |
| 6. criteria for accepting or rejecting witness statements. (Para 13 , 14 , 15 , 16 , 17 , 18) |
| 7. analysis of the main witness's reliability and evidence's insufficiency. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25) |
| 8. further examination of the supporting witnesses and their shortcomings. (Para 26 , 27 , 28) |
| 9. description of evidence from further witnesses and its lack of incriminating details. (Para 29 , 30 , 31) |
| 10. summation of evidence and emphasis on the accidental drowning theory. (Para 32 , 33 , 34) |
| 11. conclusion favoring the defense's theory of accidental drowning. (Para 35) |
| 12. final ruling and outcomes of the appeals. (Para 36) |
JUDGMENT
Jayachandran, J.
We are, in these appeals, caught between the prosecution theory of homicidal drowning and the defence hypothesis of accidental drowning due to alcoholic stupor – the resolution of which essentially turns on the credibility of an accomplice/approver.
2. Under challenge in these appeals is the judgment of the Additional Sessions Court–I, Kasaragod dated 23.8.2018 in S.C.No.1084/2012. The offences alleged were under Sections 302 and 201, read with Section 34 of the Indian Penal Code . As per judgment impugned, the second accused was acquitted, whereas first accused was found guilty of the offence under Section 304, Part-I. The first accused was sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs.1,00,000/-, with a default clause to undergo rigorous imprisonment for a further period of two years. While, Crl.Appeal No.1098/2018 was preferred by the first accused, the father of the deceased preferred Crl.Appeal (V) No.906/2018.
Prosecution Case
3. On 10.6.2007, at 7.30 p.m., the deceased and PW1 (previously A3, who was given pardon under Section 306 Cr.P.C.) were consuming alcohol in a boat by name 'Roopa' at Madakkara boat jetty. They also fried fish in the boat. While so, the first accused – the second driver of Roopa boat – came to boat jetty along with the second accused in a motorcycle bearing no.KL-60/507. The first accused went to the boat and there ensued a wordy altercation between the deceased and the first accused, since the former did not relish consumption of alcohol and frying fish in the boat. When the deceased abused A1 in the name of his father and mother, he took a wooden stick used in the boat and assaulted the deceased on his head. The deceased became unconscious. When the second accused, who went to fill fuel in his bike came back, accused nos.1 and 2, with the necessary animus to commit murder, lifted the deceased and dropped him in Madakkara river, causing his death by drowning. Thereafter, the accused persons, in order to cause disappearance of evidence, started the engine of the boat and mutilated the body of deceased by shoving it against the rotating propeller, causing injuries. The blood stains in the boat were also cleaned so as to cause disappearance of evidence. The accused persons have thus committed the offences under Sections 201 and 302, read with Section 34 of the Penal Code, according to the prosecution.
4. Thirty seven witnesses were examined in support of the prosecution case, through whom Exts.P1 to P45 were marked and MOs 1 to 4 were identified. Relying upon the evidence of PW1, an accomplice/approver, supported by the alleged corroborative evidence of PW2, the learned Sessions Judge convicted and sentenced the first accused as indicated above. We cannot but notice that despite raising two points pertaining to the culpability of the second accused - predominantly in the context of the offence under Section 201
