ANTONY @ JOSE v. STATE OF KERALA
Case at a glance
Provisions considered
- Indian Penal Code, 1860 ss. 299, 300, 302, 304, 447
- Code of Criminal Procedure, 1973 ss. 232, 313
Key paragraphs
- Para 1111. Analysis of evidence: a) PW1 is the immediate neighbor, who lodged the FI statement. He stated before the Court that on 12.10.2008 at about 10.30 p.m., he heard the cries of the deceased, his wife, and children. He rushed to the house and found…
Judgment
materials arising out of the prosecution evidence were put to the accused under Section 313 of the Cr.P.C. He denied all the incriminating circumstances brought against him and maintained his innocence. According to him, he was falsely implicated by the wife and children of the deceased as they felt that their family suffered ignominy owing to the allegations of molesty levelled by the wife of the accused against him. On finding that the accused could not be acquitted under Section 232 of the Cr.P.C., he was called upon to enter Crl.A. No.41 of 2017 :5: upon his defence. No defence of evidence was adduced on his side.
Findings of the learned Sessions Judge: a) The evidence of PWs 2 and 3, the wife and son of the deceased, are natural witnesses and their presence throughout the incident was found to be established. b) The evidence of PWs 1, 4 and 5 shows the presence of the accused at the place of occurrence at or immediately after the occurrence. c) The evidence established that the deceased was called out and a stab injury was inflicted on a vital part of the body by pushing him down. The plea of self defense, even if taken by the accused, has not been established. d) The accused had a sound motive to attack the deceased. e) Though there has been some delay in questioning the ocular witnesses, sufficient explanation has been offered by the prosecution for the same. f) There is no reason to doubt the recovery of the weapon of offence and the clothes worn by the accused based on the disclosure statement Crl.A. No.41 of 2017 :6: given by him. g) The Chemical Analysis report has revealed the presence of human blood on the knife as well as the clothes of the accused. Failure to do the grouping of blood will not affect the veracity of the case of prosecution. h) The evidence adduced by the prosecution convincingly shows that the accused had trespassed into the house of the deceased and had inflicted the fatal injury.
The sentence imposed: a) The accused was found guilty and was sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- for the offence under Section 302 of the IPC with a default sentence of rigorous imprisonment for six months. b) For offence under Section 447 of the IPC, the accused was convicted and sentenced to undergo Rigorous Imprisonment for three months and to pay a fine of Rs. 500/-. Crl.A. No.41 of 2017 :7:
The contention of the appellant: a) Sri. Vinay, the learned counsel submitted that, though the incident had taken place at 10.45 p.m., on 12.10.2008, the information was furnished to the police by PW1 only at 7.30 a.m. on the next day. From the evidence of PW11, a member of the Grama Panchayat, it has come out that police had reached the spot on the previous day itself. If that be the case, Ext.P1 cannot be the statement on the basis of which the law was set in motion. b) There are glaring discrepancies in the evidence tendered by PW2 and PW3, the wife and son respectively of the accused. It is pointed out that it has come out from the evidence of PW13, the investigating officer, that the wife and son were questioned and their statements recorded only on 19.10.2008, whereas the statement of PW4, the brother of the deceased, was recorded on 16.10.2008. The delay in recording the statement is fatal. There are concomitant circumstances to suggest that the investigating officer was deliberately marking time to decide about the shape to be given to the case and to introduce eye witnesses. For the above reason, the evidence tendered by PWs 1, 2 and 3 are liable to be rejected. In order to substantiate the above contention, reliance is placed on the observations made by the Apex Crl.A. No.41 of 2017 :8: Court in Ganesh Bhavan Patel v. State of Maharashtra1 and Shaheed Khan v. State of Rajasthan2. c) There is a long and inordinate delay in forwarding the material objects seized by the investigating officer. The records disclosed that Ext.P4 and P8, though sent on 14.10.2008, reached the court only on
18.10.2008. d) The failure of the prosecution to prove its certainty that the blood found on MO1 weapon and the clothes worn by the accused was that of the deceased is fatal to the prosecution. The learned Sessions Judge has seriously erred in concluding that a specific plea of self-defence has not been taken either during cross-examination or during the 313 examination. It is contended that it is by now settled that there is no requirement to tender evidence to prove self-defence but the same can be established by reference to the circumstances transparent from the prosecution evidence. In support, reliance is placed on Darshan Singh v. State of Punjab and Other3; Jacob @ Jaimon v. State of Kerala4. 1 [(1978) 4 SCC 371] 2 [(2016 ) 4 SCC 96] 3 [(2010) 2 SCC 333] [(2012) KHC 313] 4 Crl.A. No.41 of 2017 :9: e) Relying on the law laid down in Jagrup Singh v. State of Haryana5, Sri. Vinay, the learned counsel contended that the evidence tendered would disclose that there was a scuffle between the accused and the deceased when the accused questioned the deceased with regard to an incident of molestation of his wife. Both the parties exchanged blows and they fell down. Both of them tried to wrest possession of a rubber tapper’s knife, which was actually in the hands of the deceased. In the melee that followed accidently an injury was sustained on the upper part of the thigh. The injury was sustained without premeditation in a sudden fight in the heat of fashion upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner.
Rebuttal by the Senior Public Prosecutor: a) Sri. Alex M. Thombra, the learned Public Prosecutor argued that the wife and son examined as PWs 2 and 3 are natural witnesses and they have no reason to falsely implicate the appellant and shield the actual offender. The evidence of PWs 1, 4, and 5 lend ample corroboration to their version. The omissions and embellishments pointed out by the defence will not make any dent in the core of the prosecution case. 5 (1981) 3 SCC 616] Crl.A. No.41 of 2017 :10: b) The head of the family was murdered leaving behind his wife and two minor children. The deceased was from the most financially backward section of the community. The wife and children suffered a huge mental breakdown and she had also stated in her evidence that she was admitted in the hospital as her pressure went down. The delay in recording the statement had occurred as the investigating officer had to give them some time to come back to normally. c) The recovery of weapon and clothes based on the disclosure statement given by the accused and the presence of human blood in them would corroborate the evidence of PWs 2 to 5.
Cause of death: Before adverting to the evidence, it needs to be analyzed as to whether the death of Thankappan was a case of homicide. For one reason or the other, no evidence has been let in, to prove the exact time of death. The Doctor, who declared the death of the deceased has not been examined. However, in the FI statement lodged at 7:30 a.m. on 13.10.2008, it has been stated that the deceased died on the previous day. PW6 is the Doctor who conducted the autopsy. He has noted three injuries on the body of the deceased, two of which are superficial. The fatal injury is a boat-shaped incised puncture wound Crl.A. No.41 of 2017 :11: on the outer aspect of the left thigh at its middle; the horizontal measured 2.5 cm and the vertical limb measured 1 cm each. Active bleeding was seen from the wound. The wound was directed upwards and inwards to pass under the femoral artery and terminate by cutting the femoral vein into two. The total depth of the wound was 11 cm. In his evidence, the Doctor stated that injury No.1 is sufficient to cause death in the ordinary course of nature. In cross-examination, he stated that injuries Nos. 2 and 3 can be caused by a scuffle or by a fall. He also stated that if medical treatment had been given with blood transfusion in time, the victim could have been saved. The Doctor also opined that MO1 weapon can cause the fatal injury noted by the Doctor. In view of the evidence tendered by the Doctor, there cannot be any doubt that the death of Thankappan was a case of homicide.
Analysis of evidence: a) PW1 is the immediate neighbor, who lodged the FI statement. He stated before the Court that on 12.10.2008 at about 10.30 p.m., he heard the cries of the deceased, his wife, and children. He rushed to the house and found the deceased lying by the side of the road. His wife and children and the accused were standing near to the deceased. Thankappan was lying in a pool of blood. The injured was initially rushed to the Peravoor Government Hospital, from where he was Crl.A. No.41 of 2017 :12: shifted to the Thalassery Government Hospital, where he was pronounced dead. In his evidence, he stated that he had a torch light with him and he added that there was a lamp emitting light in Thankappan’s house. However, he did not fully support the prosecution version. He mentioned, however, that PWs 4, 5 and others had come to the scene and it was with their assistance that the body was shifted to the hospital.
He stated that he had given the First Information on the next day. He was made to give an additional statement after the receipt of the Post Mortem Certificate to explain the trajectory of the knife as it was felt that such an injury could not have happened if the accused was sitting on the leg. b) PW2 is the widow and PW3 is the son of the deceased. In their evidence, they vividly described the sequence of events that occurred. PW2 stated that, after dinner on 12.10.2008, while the family consisting of the deceased and her two minor children, were sitting inside the house at about 10:30 p.m., the accused stood outside the house and called her husband. He started abusing her husband. Her husband went out into the courtyard and asked the accused to leave. He told him that the issues could be settled in the morning. The accused pulled her husband outside and pushed him down to the road. Though she Crl.A. No.41 of 2017 :13: and her two minor children tried to intervene, they could not resist the acts of the accused.
The accused sat on the legs of her husband, who was lying face up, and took out a rubber tapper’s knife from his hip and stabbed her husband above the left knee. When they cried, accused withdrew the knife and left the place. By that time, PWs 4 and 1 came to the spot. She stated that she did not go to the hospital. She stated that there was ample light in the vicinity enabling her to view the gory incident. She identified the accused, the weapon used, and the clothes worn by the accused. The tenor of the cross-examination was to bring out some embellishments and omissions in her evidence. However, the defence has not been able to shake her testimony. She was also cross-examined to bring out that there was a scuffle and when she had furnished her statement to the police, she had stated so. She also stated that during the incident, neither she nor her children touched the accused. She also spoke about the presence of light. c) PW3 is the son of the deceased, who was aged about 15 years when the incident had taken place.
He reiterated the version given by his mother. However, in his evidence, he stated that a scuffle had ensued when the accused tried to pull the deceased out of the house. He also stated that he tried to push away the deceased, but did not succeed. Crl.A. No.41 of 2017 :14: Both the witnesses stated that they had witnessed the incident from start to end. d) PW4 is the brother of the deceased who came to the spot on hearing the hue and cry. He stated that when he reached the spot he found the deceased lying on the ground and the accused was sitting on top. When the accused saw the neighbors assembling, he left the place carrying his weapons. He stated that his brother told him that he was stabbed by Jose, who is the accused herein. In his cross-examination, he stated that the statement was recorded 4 days after the incident. It was brought out that he had seen the police, while he was at the hospital, and on the subsequent days of the incident, the CI of police had come to the spot.
However, he did not think it necessary to volunteer and to give a statement. e) PW5 is a close neighbor of the deceased. He stated that on hearing the cries from the house of the deceased, he rushed to the said place and found Thankappan lying on the road and the accused walking toward his house with a knife in his hand. He also stated that the deceased told him that he was stabbed by Jose. f) The analysis of the evidence of PWs 1 to 5 would reveal that PWs 2 and Crl.A. No.41 of 2017 :15: 3 had occasion to witness the incident from start to finish. Though PW1 was also cited to prove the initial part of the incident, he did not support the prosecution case. However, PWs 4 and 5 stated about what had transpired immediately after the incident and the presence of the accused. We have tested the evidence of PWs2 and 3 for its consistency and the inherent probability of the story. We have also considered the evidence of PW 4 and 5 for its consistency with the account of PW2 and 3, whom we found to be credit-worthy.
We do not think that there is any reason to doubt their version of the incident. g) The first contention is with regard to the absence of light. All the witnesses including PW1 have spoken about the presence of ample light in the area, which enabled them to clearly identify the accused. Furthermore, all these witnesses and the accused are residing in a 50 metres radius. They have been seeing each other for the past several years and being villagers, they would be in an easy position to identify their neighbors. h) The second contention is with regard to the discrepancy in evidence tendered by PWs 2 and 3. The discrepancy is that when the son says there was a scuffle, the mother does not speak about any such incident. While the son says that they tried to push away the accused, Crl.A. No.41 of 2017 :16: the mother would say that no such attempt was made. It is trite that while appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth.
Once that impression is formed, is necessary for the court scrutinize the evidence more carefully, considering the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole. The court must evaluate whether these issues contradict the general tenor of the witness's testimony and whether the initial evaluation of the evidence is shaken enough to render it unworthy of belief. Minor discrepancies on trivial matters that do not touch the core of the case, or a hyper-technical approach that takes sentences out of context or focuses on some technical error by the investigating officer that does not go to the root of the matter, would not ordinarily justify rejecting the evidence as a whole. Even honest and truthful witnesses may differ in some details unrelated to the main incident because the power of observation, retention, and reproduction differs among individuals. The powers of observation differ from person to person; what one may notice, another may not.
In regard to the exact time of an incident or the duration of an occurrence, people usually make their estimates by guesswork on the spur of the moment during interrogation. Ordinarily, Crl.A. No.41 of 2017 :17: a witness cannot be expected to recall accurately the sequence of events that takes place in rapid succession or a short time span. A wholly truthful witness may be overawed by the court atmosphere and the piercing cross-examination by the counsel. Out of nervousness, they may mix up facts, get confused about the sequence of events, or fill in details from imagination on the spur of the moment. (See State of U.P. v. M.K. Anthony6, Bharwada Bhoginbhai Hirjibhai v. State of Gujarat7). Having tested the evidence of the witnesses, we are of the view that the discrepancies pointed out by the learned counsel appearing for the appellant will not make any dent on their version before Court. Furthermore, as held by the Apex Court in Dalip Singh and Ors. v.
State of Punjab8, ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of
Questions this judgment answers
Which statutory provisions did this judgment involve?
Indian Penal Code, 1860 — ss. 299, 300, 302, 304, 447; Code of Criminal Procedure, 1973 — ss. 232, 313.
Which court decided this case, and when?
Kerala High Court, on 26 Jul 2024. The bench was RAJA VIJAYARAGHAVAN V G GIRISH, SESSIONS.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.