SIBICHAN S/O VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the 4th accused in Sessions Case No.6/98 before the Principal Assistant Sessions Judge, Alappuzha. He along with 19 others were prosecuted for offences punishable under Sections 143, 147, 148, 149, 323, 324 and 307 of the Indian Penal Code. The prosecution case as stated in paragraph 2 of the judgment of the Assistant Sessions Judge is as follows:

(2.) The prosecution examined PWs 1 to 15 and marked Exts.P1 to P16 and MOs 1 to 3. The defence did not examine any witnesses, but, marked Exts.D1 to D2, which are contradictions of the witnesses of the prosecution. After considering the evidence available, the Assistant Sessions Judge acquitted the other 19 accused. Accused No.4, who is the petitioner herein was also found not guilty of the offences charged against him. But, he was found guilty of the offence under Section 326 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5,000/- with a default sentence of simple imprisonment for one month. The petitioner filed Criminal Appeal No.282/1999 before the Additional Sessions Judge, Adhoc-I (Fast Track), Alappuzha. The Sessions Judge confirmed the conviction and the sentence, dismissing the appeal. The petitioner is challenging the judgments of the courts below.

(3.) The contention of the petitioner is that there is no reliable evidence to convict the petitioner. The only evidence based on which the petitioner was convicted by the trial court is the evidence of PW1, the medical evidence and the recovery of one of the material objects under Section 27 of the Indian Evidence Act. But, the appellate court found that the recovery under Section 27 of the Indian Evidence Act was inadmissible in evidence. But, the fact that the petitioner knew the place, where the material object was hidden, was taken as a circumstance supporting PW1 taking assistance from Section 8 of the Indian Evidence Act. According to the petitioner, insofar as even for the trial court, who relied on the solitary evidence of PW1 has been relied upon to convict the petitioner, PW1's evidence was unreliable for the most part, in which case corroboration was mandatory, in view of the decisions of the Supreme Court in Vadivelu Thevar v. State of Madras, 1957 AIR(SC) 614 and Jagdish Prasad and others v. State of M.P., 1994 AIR(SC) 1251. It is submitted that the finding of the appellate court that the conduct of the petitioner leading PW13 to the place where MO3 was hidden is relevant under Section 8 of the Indian Evidence Act, itself is unsustainable. According to the learned counsel for the petitioner, once recovery under Section 27 of the Indian Evidence Act has been found to be inadmissible, every part of that piece of evidence is unsustainable and the same cannot even be considered as a subsequent conduct of the accused deriving support from Section 8 of the Indian Evidence Act. If that be so, apart from the solitary evidence of PW1, which itself is not reliable for convicting the other accused as found by the lower courts, there is no piece of corroboratory evidence to convict the petitioner. As such, the lower courts went wrong in convicting the petitioner only on the basis of the evidence of PW1. It is further pointed out that in F.I. Statement given by PW1 himself, he had specifically mentioned five persons as five of the perpetrators of the crime, including the petitioner and the 1st accused. But, only two of them, namely the petitioner and the 1st accused only have been made accused along with others. At the same time, PW1 himself identified three others who were not named by him in the F.I. Statement, along with the petitioner and the 1st accused as persons, who committed the overt acts. There is no explanation by the prosecution as to why the other persons specifically named in the F.I. Statement by PW1 himself, have not been made accused in the case. The petitioner also points out another circumstance to doubt the veracity of the evidence adduced by the prosecution, which is that CW2, who was alleged to be the person present along with PW1 at the scene of occurrence, both of whom had run away on seeing the assailants has not been examined in the case. No explanation is forthcoming as to why he has not been examined in the case. According to the learned counsel for the petitioner, all these circumstances are more than sufficient to disbelieve the evidence of the prosecution including that of PW1, or at any rate, to give him the benefit of doubt so as to acquit him.