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Judgment
C. 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.
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
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.
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 - there is no discussion, whatsoever, about the said points in the judgment impugned, except a common finding while answering point no.7 that the materials on record are insufficient to find accused nos.1 and 2 guilty of offences under Sections 302 and 201, read with Section 34 of I.P.C.
Appellant's arguments
Sri.S.Rajeev, learned counsel for the appellant/accused submitted that prosecution essentially relies on the evidence tendered by PW1, the approver, which is sought to be corroborated by the evidence of PW2 and PW3. However, no credence, whatsoever, can be attached to the evidence of PW1. Learned counsel invited our attention to the entire evidence adduced by PW1 to point out that he was fully drunk and inebriated to such an extent that he could not even lift his head from the floor. It has been admitted that PW1 had consumed liquor twice or thrice, and that he allegedly saw the incident from a distance, the platform of the boat jetty. That being the state of affairs, his evidence to the effect that the accused quarrelled with the deceased and hit him with a winch lever can hardly be taken stock of, to rest a conviction. Learned counsel reminded us that PW1 was originally the third accused, who subsequently turned an approver and, therefore, his evidence is to be viewed with circumspection, not liable to be acted upon, unless and until the court is fully convinced of its credibility and corroborated in material particulars by the evidence of other witnesses. In the instant case, the evidence tendered by PW1 is not credible at all, much less corroborated by the evidence of PW2 and PW3. PW2 and PW3, at best, testified the presence of accused, deceased and PW1 and PW2, along with certain other persons like one Yousuf and friends of PW2, who were not examined. No evidence which would inculpate the accused was spoken to by PW2 and PW3 and therefore, the overt acts alleged against the accused by PW1 is not corroborated at all, but in fact, contradicted, submits the learned counsel.
The next point canvassed by appellant's counsel is that PW1 cannot be given the legal status of an approver, since neither his statement before the Chief Judicial Magistrate, nor the evidence before the court contains any inculpatory content. There is nothing to show that he had participated in the crime. PW1's evidence only indicates that he was a mere spectator all along and, therefore, his evidence is liable to be eschewed. Learned counsel thereafter submitted that the prosecution had not adduced any evidence as regards the extent to which the deceased got inebriated. The said information is vital to rule out the possibility of an accidental fall into the river and consequent drowning. The postmortem report is silent on this aspect. The motive alleged is that the accused did not relish the deceased and others consuming liquor and frying fish in the boat, which, however, is not established by satisfactory evidence. This assumes relevance in the absence of any eye witness, except PW1, whose evidence is not trustworthy at all. Learned counsel then pointed out that as per Ext.P20 F.S.L. report, even human blood, much less the Rh factor, is not detected in the dress of the accused. Learned counsel submitted that no witness spoke about the prosecution version that the accused persons lifted the deceased and dropped him into river, to cause drowning. Again, going by the final report, the weapon employed is a wooden stick, whereas evidence is adduced propounding MO1 winch lever as the weapon used for perpetration of the crime. Learned counsel would conclude by submitting that the case has been concocted against the accused by introducing an approver (PW1) by the Crime Branch, which took over the investigation, pursuant to protests made by an action council, so as to pinpoint somebody as an accused before the public. There exists no credible evidence, whatsoever, wherefore, the accused is liable to be acquitted, submits the learned counsel. As regards appreciation of approver's evidence, learned counsel relied upon the following judgments:
Sarwan Singh v. State of Punjab [AIR 1957 SC 637]
Bhiva Doulu Patil v. State of Maharashtra [AIR 1963 SC 599]
Joga Gola v. State of Gujarat [AIR 1982 SC 1227]
Chandan & Another v. State of Rajasthan [AIR 1988 SC 599]
Rampal Pithwa Rahidas & Others v. State of Maharashtra [1994 Crl.LJ 2320]
Thadiyantevida Nazeer @ Ummar Haji & Others v. State of Kerala & Others [2022 (1) KHC SN 12, Page 43 (DB)]
Victim's arguments
Learned counsel for the victim (appellant in Crl.Appeal(V) No.906/2018) submitted that the prosecution version is satisfactorily driven home by the evidence tendered by PW1, the approver, corroborated by the evidence of PW2 and PW3. PW1 gave a fair and realistic account of what transpired in the boat on the fateful day. PW1, categorically, spoke about consumption of liquor by the deceased and PW1 initially, about PW2 and his friends joining them, about the arrival of the accused persons in a motorbike, about the quarrel picked up by the first accused for having used the boat for consuming alcohol, as also, for frying fish, and about the first accused assaulting the deceased by using a winch lever taken from the cabin of the boat. The fact that the body of the deceased surfaced on the next day is spoken to by PW4. These evidence would fully establish the guilt of the accused, more so by virtue of the evidence tendered by PW13, who conducted the autopsy and opined that the injury found can be caused by a weapon like MO1 winch lever. According to learned counsel, the evidence tendered by PW1 is substantially corroborated in all material particulars by the evidence of PW2 and PW3. On legal premise, learned counsel submitted that it is not imperative in law that an approver should necessarily give inculpatory statement, incriminating him and his role in the perpetration of a crime. The evidence tendered by PW1 is creditworthy, besides being corroborated and, therefore, rightly taken stock of by the learned Sessions Judge. No interference is warranted to the impugned judgment, submits the learned counsel.
Arguments of the Public Prosecutor:-
Learned Public Prosecutor adopted the entire arguments canvassed by the learned counsel for the victim, supporting the impugned judgment completely and negating the necessity for an interference in the appeal. Learned Public Prosecutor would reiterate that PW1 was rightly made an approver and that his evidence is credible and trustworthy, liable to be acted upon.
Having referred to the arguments of the learned counsel for the respective parties, we will refer to the settled legal principles governing appreciation of an approver's evidence.
Before scanning the binding precedents on the point, we will refer to the statutory provisions as regards the evidence of an accomplice. Section 133 of the Indian Evidence Act, 1872 is extracted herein below:
“133. Accomplice.- An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”
Section 133 has to be read along with illustration (b) to Section 114 of the Evidence Act, which contemplates a presumption that an accomplice is unworthy or credit, unless he is corroborated in material particulars.
In Sarwan Singh v. State of Punjab [AIR 1957 SC 637], a three Judges Bench of the Hon'ble Supreme Court held thus, regarding the evidence of an accomplice:
“7. …......... An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. …..............
But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered.
In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver. ….......”
(underlined for emphasis)
The combined effect of Section 133, read with Section 114, Illustration (b) of the Evidence Act was considered by the Hon'ble Supreme Court in
Bhiva Doulu Patil v. State of Maharashtra [AIR 1963 SC 599]. The relevant portion of the judgment is extracted herein below:-
“7. The combined effect of Ss.133 and 114, illustration (b) may be stated as follows : According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. …....”
In Joga Gola v. State of Gujarat [AIR 1982 SC 1227], the Hon'ble Supreme Court underscored the legal necessity of the inculpatory content in the evidence of an approver in the following words:
“3......The High Court while considering the evidence of the approver completely overlooked two important infirmities which appeared in the evidence of the approver and which were sufficient to discredit the entire testimony of the approver apart from the question of corroboration. In the first place, it would appear from the evidence of the approver that his confession which preceded the pardon as a result of which he became approver was wholly exculpatory and the approver did not implicate himself in any way in the murderous assault on the deceased persons. …....”
The above legal position is reiterated by the Hon'ble Supreme Court in Chandan & Another v. State of Rajasthan [AIR 1988 SC 599] and Rampal Pithwa Rahidas & Others v. State of Maharashtra [1994 Crl.LJ 2320].
Whether the presence of the accused persons near about the place of occurrence, by itself, is sufficient to raise a conclusion that the accused persons have committed the murder, was answered in the negative by the Hon'ble Supreme Court in Joga Gola (supra), the relevant portion of which, is extracted herein below:
“3. …...Reliance was placed on the evidence of PWs 3, 9. 10, 18 and 23 to show the presence of the appellant and accused No. 2 near about the place of occurrence along with the buffaloes which by itself is not sufficient to raise an irresistable conclusion that the appellant committed the murder of the deceased. …...”
In Revinder Singh v. State of Haryana [AIR 1975 SC 856], the Hon'ble Supreme Court observed thus on the inherent untrustworthiness of the evidence tendered by an approver:
"An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. …...”
The necessity of corroboration of an approver's evidence by independent witness is reiterated by the Hon'ble Supreme Court in Chandan (supra) in the following words:
“5. So far as the question about the conviction based on the testimony of the accomplice is concerned the law is settled and it is established as a rule of prudence that the testimony of accomplice if it is thought reliable as a whole conviction could only be based if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime. ….”
In Rampal Pithwa (supra) the Hon'ble Supreme Court found that there is no need to look for corroboration of the testimony of an approver, if it is found by the court that the approver's evidence is not worthy of credence and is uninspiring. [See paragraph no.34 of the judgment].
A Division Bench of the Kerala High Court in Thadiyantevida Nazeer @ Ummar Haji & Others v. State of Kerala & Others [2022 (1) KHC SN 12, Page 43 (DB)], authored by one among us [K.Vinod Chandran,J.] summarised the law regarding appreciation of evidence of an approver thus:
“42. An approver, is termed as a most unworthy friend, a self-confessed criminal and traitor, by his very conduct of involving in a crime and then cheating on his friend/s. An approver thus is of questionable character and assumes a dubious persona, who exudes mistrust. It is hence, by the above precedents it was held that, though not absolutely necessary, it is always prudent to look for corroboration of the approver's testimony, before entering a conviction; not on all material aspects of the prosecution case, but at least so much as to inspire the confidence of the Court to accept that evidence, which fundamentally is 'weak' and 'tainted'. The Hon'ble Supreme Court also mandated the twin test of examining first, the credibility of the approver and then the aspect of corroboration, at least on some material particulars; which need not be of the highest quality and could also include circumstantial evidence. Though a rule of prudence, the Apex Court held that judicial experience has now hardened the rule into a requirement of law.”
We will now examine in detail the evidence tendered by the prime witness, PW1. PW1 deposed that he was working with the deceased and accused in a mechanised fishing boat by name Roopa, owned by PW8, of which the first accused was the second driver, the first driver being PW8 himself. On 10. 6.2007, PW1 came back to the boat jetty by about 6 p.m., where he met the deceased, who offered him a liquor party. Accordingly, PW1 and the deceased consumed liquor sitting in Roopa boat. While so, PW2 – a friend of deceased – came, accompanied by four other friends of PW2. PW2 came to the boat, while others stood in the platform. PW2 and deceased wanted PW1 to fry fish bought by the friends of PW2. PW1 was initially hesitant due to possible objection from PW8 in using the boat for frying fish and to take alcohol, but heeded to the demand later and they fried fish. The deceased wanted some more liquor to be purchased and sent PW2 for the same. He came back after purchasing liquor. While so, CW8 (not examined), who came to the boat, was also given a peg along with fish fry. He left immediately. PW1, deceased and PW2 continued to drink. While so, accused nos.1 and 2 came there in a motor bike, driven by the second accused. The first accused approached, shouted at them for consuming liquor from the boat. PW1 tried to obstruct the first accused at the platform. He offered some fish fry to the first accused, which was struck away. When PW1 turned back from the platform, he saw the first accused, deceased and PW2 alone in the boat. The second accused asked PW1 as to whether he has consumed so much liquor, that he cannot stand. PW1 told the second accused about the liquor party. The second accused went to fill fuel in his bike. Thereafter, PW1 saw a wordy altercation between the deceased and the first accused, followed by a quarrel. The accused assaulted the deceased on his head with an iron rod, taken from the cabin of the boat. The deceased cried that he is being killed. Since he was not in a position to witness the incident, PW1 lied down, whereupon, he heard the noise of something falling into the boat. The first accused did not respond to his enquiry about the deceased. When the second accused came back, PW1 saw the first accused going to the second accused and conversing something anxiously with him. Thereafter, both of them went to the boat. The next part of the evidence is curious to the effect that PW1 chose to remain at the place where he was, since both the accused persons and deceased belong to the same community. One cannot make sense of what PW1 meant by that statement. PW1 then deposed that he fell asleep due to intoxication. After a long time, the second accused called PW1. To a query put by PW1, second accused replied that nothing happened in the boat. Thereafter, both the accused went off in the motorcycle. PW1 went to the boat calling for the deceased, but there was no reply. PW1 was afraid and he went back to his home. PW1 would clarify that the light in the boat was illuminated and he saw the incident in that light, as also, in the moonlight. He also said that he heard the sound of the boat starting. On the next day, PW1 came to know that the body of the deceased surfaced near the boat jetty. Thereafter, PW1 spoke about giving statement under Section 164, Cr.P.C to the Judicial First Class Magistrate No.II, Kanghangad and also about his statement before the Chief Judicial Magistrate, presumably for the purpose of Section 306 of the Cr.P.C. He produced MO1 winch lever, which is used in the boat, to the police, besides identifying the same as the weapon of assault. MO1 was taken by the police into custody as per Ext.P1 mahazar, to which PW1 is a witness. According to PW1, the deceased died due to an assault on his head, after which he was thrown into the water. He identified accused nos.1 and 2 before the court.
In cross examination, it is elicited that on the date and time of incident, there were other boats parked in the northern and southern sides of Roopa boat and that the parking sheds are open, except at the engine portion. There is a height difference of only one feet between the boat and the platform. The boats are parked so close and that one can jump from one boat to another without stepping on to the platform. PW1 would state in cross that the deceased was already drunk at the time when he came to PW1 at 6.45 p.m, and that they consumed half-a-bottle of liquor together. After the arrival of PW2, another bottle of liquor was purchased and the same was also consumed by PW1, deceased and PW2. By referring to the former statement, an omission is brought out in cross examination as regards the arrival and presence of one Yousuf, who was also given some liquor. During the heat of cross examination, PW1 however admitted that at the time of incident, the deceased and PW2, along with four friends of PW2, were present in the boat. There was a distance of about 10-20 metres from the boat to the place where accused persons parked their motor bike. The accused shouted at the deceased, which was audible to others in the jetty. On the one hand, PW1 would state that he went to the platform to meet the first accused, when he came. However, on the other hand, PW1 would state that when the first accused came, PW1, PW2 and the deceased stood in the boat and others left. Again, PW1 would prevaricate that he was not sure whether others ran away. While PW1 was speaking to second accused, he turned back, to see that PW2 was not in the boat. PW1 does not know where he has gone. It was elicited that PW1 was standing in the shed at that time and he was leaning on the wall, since he could not stand due to intoxication. He saw one stroke being inflicted upon the deceased with a stick taken from the cabin, whereafter he closed his eyes. PW1 does not know what happened thereafter, since he could not lift his head. It was elicited that the statement given to the Magistrate does not contain the one to the effect that PW1 heard the sound of something falling.
It was further elicited in cross examination that the brother-in-law of PW1, the husband of the niece of PW1, his neighbour by name Lakshmanan and husband of PW1's wife's sister are all employed in the Police department.
Having perused the evidence of PW1, we find that he is not reliable and trustworthy for two reasons:
(i) The evidence of PW1 preeminently demonstrates that he was thoroughly under the spell of alcohol, more or less amounting to alcoholic stupor, wherefore, his version about witnessing the incident can hardly be believed.
(ii)He does not fit into the character of an accomplice, since his statement does not disclose any inculpatory content.
PW1 admits of drinking half-a-bottle of alcohol along with the deceased initially. He would depose that he again took liquor, along with the deceased and PW2, after purchasing another bottle from Madakkara. He would state in chief examination that he was not in a position to witness the incident. It is not clear as to what PW1 meant by that statement. Whether he was referring to the fact that he could not see the incident due to inebriation; or whether he was stating that he could not withstand seeing the deceased being attacked, is not discernible from the statement. According to PW1, he lied down, since he was not in a position to witness, which probabilises the former version that he could not witness the incident due to inebriation. The fact that PW1 was drunk to such an extent that he found it difficult to stand is evident from the question of the second accused referred to in chief examination, as also, from PW1's testimony that he leaned on the wall, since he could not stand erect. PW1's version in chief examination that he chose to lie down at the same place, since the deceased and both the accused belong to the same community, can be taken only with a pinch of salt. In chief examination, PW1 stated that he fell asleep in the spell of alcohol. In cross examination, it is brought out that he could not even lift his head and that he does not know what transpired after the first accused hit the deceased. It is also his version that he closed his eyes. A contradiction is brought out in this regard to the effect that he was fully intoxicated ('എന ക മത ളത ന ൽ'].
The above evidence of PW1 would establish, beyond the cavil of doubt, that he was fully drunk and inebriated at the time when he allegedly saw the incident, which dissuade us from placing any intrinsic reliance upon the evidence tendered by PW1. Our lack of trust is intensified due to the fact that PW1 was an accused (A3) turned approver, whose evidence can only be viewed with considerable extent of circumspection.
Apart from the inherent lack of credibility and trustworthiness in the evidence tendered by PW1, we find that his statement contains no inculpatory content pointing to his incriminating role, if any, in the crime. When the legal position enjoins us to approach the evidence tendered by the approver with an initial presumption against the witness/approver, we cannot but observe that the quality of the evidence tendered by the present approver (PW1) is far from satisfactory. We, therefore, conclude that the evidence tendered by PW1 is not liable to be acted upon to rest a conviction.
Although the settled legal position does not enjoin us to evaluate the evidence of PW2 and PW3 for the purpose of corroboration since the evidence of PW1 - the approver - is found to be uninspiring, we prefer to do it for the sake of completion. PW2 is the one who came to Roopa boat along with his friends, when the deceased and PW1 were consuming alcohol. PW2 deposed that the deceased was his friend and that he knows both accused persons. On 10.6.2007 by 4.30 p.m., PW2 and his friends (CW9, CW13 and CW10 – not examined) came to the harbour, where he saw the deceased and accused consuming alcohol, sitting in Roopa boat. PW2 went near them and wanted the deceased to fry the fish bought by CW9 and CW13, to which the deceased agreed. The deceased wanted PW2 to purchase a bottle of liquor for him. Accordingly, PW2 went to Madakkara, bought liquor and came back, whereafter PW1, PW2 and the deceased took alcohol, along with the fish fried in the boat. CW9 and CW13 remained in the platform of the harbour and they consumed fried fish. He also vouched that the deceased was not working in the boat at the time of incident and that the deceased knew swimming well. PW2 thereafter went to the place where CW9, CW10 and CW13 were waiting. After a chat, when they were about to leave, PW2 saw accused nos.1 and 2 coming in a motor bike, seeing which PW2 and his friends went away by about 6.30 p.m. However, PW2 saw the first accused going to the boat. The second accused enquired about the deceased to CW9, which CW9 informed PW2. Smelling something fishy about it, PW2, CW9, CW10 and CW13 came back to the boat, but saw no one there. They saw somebody lying in 'Pooja' boat (PW3) and enquired about the deceased to him, who told them that he heard sounds of quarrel from 'Roopa' boat. Thereafter, PW2 and others returned and PW2 came to know on the next day that body of the deceased surfaced in the river.
In cross examination, PW2 would admit that he and his friends have consumed one-and-a-half bottle of liquor and that PW2 again drank with the deceased and PW1. Therefore, this witness was also fairly drunk at the time when he allegedly saw the first accused going to the boat. PW2 also would speak about one Yousuf coming to the boat and PW1 giving him liquor. However, the said Yousuf was not examined. It is elicited in cross examination that PW2 and his friends have not heard any sounds of quarrel from the jetty when they were waiting at the gate. One crucial omission is brought out in the cross examination of PW2. The deposition of PW2 before court to the effect that he along with his friends came back to the boat in search of the deceased and someone from the neighbouring boat spoke about sounds of quarrel from Roopa Boat does not find a place in his former statements. Here, it is pertinent to note that PW2 was questioned thrice by the Police and statements recorded. However, in none of the statements, such a crucial fact is seen spoken to. The omission in this regard, in our estimation, is crucial, which along with the fact that he was fully drunk, impels us to disbelieve PW2's version.
At any rate, PW2 only spoke about accused nos.1 and 2 reaching the harbour in a motor cycle and the fist accused proceeding to the boat. As regards the crime proper, PW2 had not witnessed anything.
Let us now examine the version of PW3. PW3 is the person who spoke to PW2 from the neighbouring boat. He first spoke about his acquaintance to the deceased and accused. His version is to the effect that he saw the deceased along with accused 1 and 2 in Roopa boat on the day, before his body surfaced in the river. PW3 was working in another boat by name 'Pooja', which was parked after 5-6 boats from 'Roopa' boat. He would state that he heard sounds of quarrel from Pooja boat (the witness would have intended Roopa boat; or that he would have meant that he heard sounds of quarrel standing in Pooja boat). He also deposed that he heard the sound of something falling into water. He was afraid and he did not enquire. According to PW3, PW2 came thereafter and enquired about the deceased and he told PW2 about the sounds of quarrel and the sound of something falling into the water. Here, it is quite pertinent to note that PW2 has not deposed that PW3 told him about the sound of something falling into water.
In cross examination, it is elicited that it was at 8-8.30 p.m. that he heard sounds of quarrel from the boat and he does not know as to who abused whom. However, in cross examination, the version of PW3 is to the effect that PW2 came, upon hearing sounds of quarrel from the boat. This version is at stark variation from the version of PW2. PW2 has no case that he heard any sound of quarrel from the boat and his version is that when he came back to the boat in search of the deceased, nobody was there in the boat.
Suffice to point out that neither PW2 nor PW3 spoke about the crime proper, as alleged by the prosecution, incriminating either the first accused or the second accused. Therefore, the versions of PW2 and PW3 are not sufficient enough to corroborate the version of PW1, who allegedly claimed knowledge about the crime proper and deposed in respect of the same. It cannot be held that the evidence tendered by PW2 and PW3 would corroborate the version of PW1, at least with respect to its material particulars, even by circumstantial evidence, the requirement of law being that the circumstances should form a complete chain ruling out the hypothesis of the innocence of the accused.
Now, we will quickly refer to the evidence tendered by the other witnesses as well. PW4 deposed that he along with CW16 brought the body of the deceased, which surfaced in Madakkara river to the jetty. He identified the body of the deceased. PW5, PW6 and PW7 are witnesses to Ext.P2 inquest report, Ext.P3 mahazar (seizure of Roopa boat) and Ext.P4 scene mahazar respectively. PW8 is the owner of Roopa boat. He is also the first driver. He would depose that the deceased and accused were employed in his boat and that on 10.7.2007, they went for fishing, returned by 1.00-1.30 p.m and parked the boat in the jetty. He went to see a film in the evening and by about 6.45 p.m he directed the first accused over phone to drain out the water from the boat. On the next day, when they went for fishing, the first accused told him that PW1 and PW2 consumed liquor sitting in the boat on the previous day. PW8 also deposed that the wooden stick in the boat was found missing. It may in this context be recalled that going by the original prosecution version, a wooden stick used in the boat was the weapon used by the first accused, which version was subsequently given a go bye by substituting the same with the winch lever of the boat. PW8 also spoke about the boat, propeller and wooden stick being taken into custody by the police. He was also a witness to Ext.P2 inquest report.
PWs 9 and 10 are witnesses to Ext.P5 scene mahazar and Ext.P6 observation mahazar, both prepared at the scene of occurrence. PWs 11 and 12 are witnesses to Exts.P7 and P8 mahazars, as per which the dresses worn by accused 1 and 2, respectively, were seized. PW11 identified MO2 series shirt and dhothi worn by the first accused and PW12 identified MO3 series shirt and dhothi worn by the second accused at the time of occurrence. PW13 is the doctor who conducted the autopsy and who issued Ext.P9 postmortem certificate. As per Ext.P9, the cause of death is death due to drowning, which fact is deposed by PW13 before the court. PW13 also spoke about the presence of three incised wounds and a superficial lacerated wound on the body, besides speaking about certain injuries, which were not having the nature of antemortem injuries. PW13 opined that injury No.4 is possible with MO1 weapon, simultaneous with stating that the same is possible if somebody falls backwards to a surface. As regards injuries not having the nature of antemortem injuries, PW13 would state that the same is possible of being caused with the propeller blade of the boat. PW14 is the one, who removed the propeller of Roopa boat as directed by the investigating officer and PW15 is the witness to the seizure mahazar in that regard. PW16 is the person, who sold Roopa Boat to PW8 in the year 1995. PW17 is the one who took photographs of the dead body of deceased, as also, the place of occurrence, through whom Ext.P11 series photographs were marked. PW18 is the Village Officer, who prepared Ext.P13 scene plan. PW19 was the Chief Judicial Magistrate at the relevant time, who recorded Ext.P14 statement of PW1 and accorded pardon to him, as per Ext.P15 proceedings. PW20 deposed that he was working in Kerala Kaumudi at the relevant time and it was he who took initiative to form the action council in protest of the investigation being conducted in the instant case. PW21 was the President of the Panchayat and was also the General Secretary of the Harbour Development Committee. He deposed that the committee took a decision prohibiting consumption of liquor in the harbour. PW22 is the father of the deceased, who deposed that the deceased did not come back on the date of incident in the night. PW23 would depose that he was working in Roopa boat and that the wooden stick was found missing in the boat. However, PW23 does not refer to any date while deposing about the missing of the wooden stick. PW24 is the witness to Ext.P16 mahazar, as per which, the motorcycle in which the accused persons came to the harbour, was seized. PW25 is the brother of the previous owner of the said motorcycle, who deposed that the motorcycle was sold to another person, vide Ext.P17 sale agreement, which was seized vide Ext.P18 seizure mahazar. PW26 is a witness to Ext.P18 seizure mahazar. PW27 was the Assistant Director of Forensic Science Laboratory, Thiruvananthapuram, who issued Exts.P19 and P20 F.S.L reports. The same is of no impact, since the blood contained in the dress of the first accused was not sufficient enough to point out the origin as to whether it is of human nature or not. PW28, the Police Constable attached to Chandera Police Station, deposed that he accompanied the dead body of the deceased for postmortem and released the same to the relatives. PWs 29, 30 and 31 are the Sub Inspectors, who conducted investigation. They deposed about the various stages of investigation conducted by them. PW33 was the officer who filed final report. Various documents during the course of investigation were marked through them, which are not referred to in detail, since it does not impact the outcome of the appeal in any manner. PW32 was the Assistant Motor Vehicle Inspector, who certified that the motorcycle in which the accused persons came to the harbour was in working condition. PW34 was the Port Officer, Kanjhangad, who issued certificate to the effect that the boat in which the incident occurred was in working condition. PWs 35, 36 and 37 are the detective inspectors of the Crime Branch, which took over the investigation. They also deposed about the investigation conducted by them, which is also not referred to in detail, the same being not of any consequence, insofar as the role of the first accused is concerned.
The evidence tendered by PWs 4 to 37 is referred only to point out that no material incriminating the first accused has been brought out, so as to fix the culpability on his shoulders. Even going by the prosecution version, the deceased was also fully drunk, firstly with PW1 and thereafter, with PW2 as well. He sent PW2 to purchase another bottle of liquor, which also they have consumed. The state of affairs being thus, an accidental fall of the deceased from the boat floating in the river and death due to drowning seems very much possible. Pertinently, We notice that the first accused drained out water from the boat to keep it ready for the next day, as directed by PW8. The Port Officer - PW34 - deposed that in order to drain out the water by operating the pump, the gear of the boat will be in neutral position. It is thus clear that the engine has to be started to operate the pump for draining water, which explains the possibility of the drunk deceased falling into the river and his body being mutilated by the propeller blade of the boat.
We reject the prosecution theory of homicidal drowning and lean in favour of the reasonable hypothesis of a drunk man falling into the water on the boat starting; the sound of which will not be heard above that of the sputtering engine.
Crl.Appeal No.1098/2018 is, therefore, allowed and Crl.Appeal (Victim) No.906/2018 is rejected. The first accused shall be set at liberty forthwith, unless his presence is required in connection with any other crime.