KOCHU MAITHEEN KANNU SALIM Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant is challenging in this appeal his conviction by the High Court under Section 302, IPC. He was tried along with his brother Jalal for committing the murder of their cousin-Umer in the Sessions Case No. 100/86 in the Court of Sessions Judge, Trivendrum but was acquitted on the ground that the prosecution had failed to prove its case.

(2.) In order to prove its case, the prosecution had examined PW 2-Surenderan Nair who stated that he was accompanying the deceased when the incident took place and that he had seen the assault made on the deceased by both the accused. His evidence was sought to be supported by the evidence of PWs 3 and 4 and also by PWs 7 and 8. The prosecution had also relied upon the recovery of MO3-knife at the instance of the appellant. The trial Court disbelieved the evidence of PW 2 as the supporting evidence was not found to be reliable and his own version was found inconsistent with the medical evidence. The trial Court also held that as PW 2 had failed to explain all the injuries that were found on the person of the deceased it created a doubt regarding his having seen the incident. Evidence of PW 7 and PW 8 was discarded by the trial Court as it was found to be inconsistent inter se. The trial Court did not place any reliance on PW 1 who had not only not seen the incident but had denied to have made some statement contained in the FIR lodged by him. The evidence of recovery of MO3-knife was not believed because the witness who had stated the Mahazar, Ex. P. 10, was not an independent witness and the find of human blood on that knife after 16 days was considered doubtful.

(3.) The High Court did not place any reliance upon the evidence of PWs 1, 6, 7 and 8. It did not believe the evidence of PWs 1, 7 and 8 as regards the oral dying declaration stated to have been made before them by the deceased. It, however, held that the FIR-Ex. P. 1 given by PW 1 could be relied upon and as it referred to the presence of PW 2 at the time of the incident and to that extent it supported the evidence of PW 2. It also held that PW 2's presence deserved to be believed as it was supported by evidence of PW 4. It also believed the evidence regarding recovery of MO3-knife as human blood was found on it.