In a very imperative, impartial, immaculate and inevitable judgment titled Alli Noushad v. Rasheed & Anr. in CRA (V) No. 17 of 2019 and 2022 LiveLaw (Ker) 89 delivered finally on February 18, 2022, the Kerala High Court observed that Section 122 of the Evidence Act requires a revisit since it was a legal weapon used by criminals to suppress their crimes, thereby affecting public interest. The said provision recognizes the age-old concept of marital confidence, where all communications between spouses during the wedlock are considered sacrosanct. It merits no reiteration that all the lawmakers and also the Centre must seriously go into this key issue and discuss, deliberate and then decide on it after consulting eminent legal experts among others!

To start with, this extremely commendable judgment authored by Justice C Jayachandran for himself and Justice K Vinod Chandran puts forth in para 2 that, Under challenge in the Criminal Appeals above referred is the judgment dated 25.5.2019 of the Additional Sessions Court, Muvattupuzha in S.C.No.821/2015. The impugned judgment acquitted the accused, who was charged with offences under Sections 302 and 506(i) of the Indian Penal Code. Criminal Appeal No.17/2019 is preferred by the wife of the deceased/victim under the Proviso to Section 372 of the Cr.P.C. The appeal preferred by the State under Section 378 of the Cr.P.C is not numbered, since Crl.M.A.No.1 of 2020 for condoning the delay of 349 days in preferring the appeal has not been allowed.

While elaborating, the Bench then envisages in para 3 that:
The prosecution allegations are to the following effect: The accused, Rasheed, was working as Manager in a plywood company owned by deceased, Noushad. Infidelity on the part of his wife predominated the mind of the accused and he suspected an illicit relationship by and between herself and the deceased, manifested by their frequent contacts over telephone. Out of this enmity, the accused, with the intention of doing away with the deceased, rammed his Maruti Ritz car bearing reg.no.KL-40-H-2322 in the white bullet motor bike bearing reg.no.KL-43-A-2721 driven by the deceased on 7.5.2015 at 7.45 a.m. at Kayyanippadi, Rayamanglam Panchayat. The deceased initially fell down on the wind shield of the offending car and thereafter, to the road margin on the southern side. The accused got out of the car, with a knife on his hand, and stabbed the deceased on his neck thrice, inflicting fatal injuries, to which the deceased succumbed, thus committing offences under Sections 302 and 506(1) of the Penal Code.

Furthermore, the Bench then enunciates in para 4 that:
The prosecution examined 21 witnesses, through whom Exts.P1 to P38 were marked and MO1 to MO16 were identified. Upon examining the accused under Section 313 Cr.P.C., DW1 and DW2 were examined as defence witnesses. Exts.D1 to D4 were marked. In acquitting the accused, the learned Sessions Judge frowned upon the evidence of PW1-the solitary eye witness-and discarded the evidence adduced by the other witnesses, as unsafe to rely upon.

Be it noted, the Bench then specifies in para 8 that:
Sri.P.Vijayabhanu, learned counsel for the appellant/victim submitted that the learned Sessions Judge had gone off tangent and turned a Nelson's eye to the legally recognisable evidence adduced by the prosecution, including that of an eye witness (PW1). Learned counsel would elaborate that PW1 tendered a believable account of what transpired on the fateful day, particularly, about the fact that the accused had intentionally collided his Maruti Ritz car on the bullet motorcycle driven by the victim.

He also spoke clearly about the incident, where the accused got out his car with MO1 knife, talked to the deceased and then stabbed him on the neck thrice. He also deposed that PW3 told him that he was prevented from going near the injured/deceased. To eschew the evidence tendered by PW1, the learned Sessions Judge proceeded on mere surmises and conjectures, generalising human reaction to a given situation and finding fault with PW1 for not reacting/responding in the so called ordinary course.

Learned counsel for the appellant then invited the attention of this Court to the evidence tendered by PW2 and PW3, which corroborates the version of the eye witness (PW1), substantially. PW2 is the one who gave Ext.P2 F.I.S. and he tendered evidence in accord therewith. The version of PW2 would clearly reveal that PW2, along with his father's brother Sidhique, reached the spot to see the deceased lying there in a pool of blood; and the accused sitting in a granite stone nearby.

Thus, at the spot of occurrence, there were only the deceased and the accused. More important is the evidence tendered by PW3, who is residing nearby. He clearly spoke of the accused showing gesture not to come to the scene of occurrence, when PW3 attempted to go near the deceased. All the three witnesses, PW1 to PW3, gave evidence regarding the accident between the Maruti Ritz car and the bullet motorcycle, both vehicles being found at the spot of occurrence.

There was damage to both vehicles and the bullet motorcycle was lying down. Another clinching evidence, which was eschewed by the learned Sessions Judge, is the availability of the blood group of the deceased (B+) on the dress worn by the accused (MO2 shift and MO3 dhothi) at the time of incident. The evidence in this regard was adduced by PW21-the investigating officer-, as also, by PW14-the Doctor who conducted the autopsy.

The dress worn by the accused was recovered as per Ext.P6 mahazar. The recovery is seen supported by the versions of PW7 and PW8. As regards the motive, the learned counsel would submit that the statement given by none other than the wife of the accused (PW17) would establish the same. Although she was hesitant to speak initially-wherefore she was declared hostile-she deposed that on the day before the incident, there was a quarrel between herself and the accused over her chat with the deceased over phone.

This supports the very prosecution case. PW17 also answered in the affirmative to the suggestion that her husband left her house in his car, immediately after the quarrel. Learned counsel seriously attacked the course adopted by the learned Sessions Judge in examining MO1 knife by himself, to ascertain blood stain on the same. The course adopted is surely impermissible, besides being illogical to search for blood stain in a knife after 4 years from the incident.

Thus, the evidence of PW1 to PW3, the presence of blood with the Rh B+ (same as that of the deceased) in MO2 and MO3 dresses worn by the deceased, the motive established, the damage caused to both the vehicles as proved in evidence, the recovery of MO1 knife and the dress worn by the accused under Section 27 of the Evidence Act, coupled with the total denial on the part of the accused would unerringly and clinchingly establish the guilt of the accused, submits the learned counsel. In the above setting, the judgment impugned acquitting the accused can hardly be sustained in law and the same is contrary to the only possible view regarding the guilt of the accused, concludes the learned counsel.

To put things in perspective, the Bench points out in para 28 that:
PW17 deposed that deceased was owner of the company where the accused was working and that they were family friends. The witness was declared hostile when she deposed that she does not remember the mobile phone numbers of herself and the deceased, which she had specifically stated in her former statement. PW17 would state that accused had disability to one of his legs and hands at the time of marriage in the year 2011. In 2003, he lost his left leg in an accident and he is fitted with an artificial limb. PW17 would state that the deceased and the accused, along with their families, went for Umrah. Accused performed all rituals of Umrah, involving considerable physical labour, by himself. Accused used to drive car and motorcycle and he can climb steps and escalators. With the aid of the artificial limb, the accused can perform all day-to-day chores. She deposed that during May 2015, the accused used to commute in a white Maruti Ritz car bearing no.KL-40-H-2322.

It is worth noting that the Bench then observes in para 29 that:
The deposition to the following effect is controversial in the context of Section 122 of the Evidence Act. PW17 stated that she had spoken to the deceased over phone, upon returning after Umrah. PW17 would admit that, on the day before the death of the deceased, there was a quarrel between PW17 and the accused, over the telephonic chats between the deceased and herself and that she was questioned in this regard by the accused. PW17 further deposed that the accused left the house in his car after quarrelling with herself on the day before the deceased was killed and that she left matrimonial home on that day, by the evening. Again PW17 would depose that the deceased and the accused were thick friends, like playmates.

Most significantly, what forms the most precious jewel of this judgment is then summed up in para 32 wherein it is stipulated that:
While appreciating the sacrosanctity attached to communications between spouses, we are afraid whether the observations made by the above Commission in the year 1853 requires a re-visit, in the touch stone of competing interests between public crimes of extreme cruelty on the one hand; and the peace of families, on the edifice of mutual confidence and trust, on the other.

Can we recognise any more that the public interest in the context of disclosure of truth about a crime in a court of law is inferior or subservient to the happiness and peace of a family, secured by suppression of such truth, backed up by statute? One cannot keep happiness and peace of his family, after indulging in a crime and then seeking support of law to suppress it. What about the peace and happiness of the family of victim? What about the underlying public interest being seriously jeopardized for the sake of peace and happiness of the family of the culprit? We prefer to believe in the primacy and paramountcy of truth and hence, not in the least, perplexed to vote against the continuance of the provision, as it stands now, in the statute book. Its high time that Section 122 is subjected to further scrutiny, more so in the context of changing values governing human and familial relations.

Equally significant is what is then observed in para 33 that:
A word of caution was raised much before us by the Bombay High Court in Vilas Raghunath Kurhade v. State of Maharashtra [2011 Crl.LJ 3300]. After referring to the peril of recognising sacrosanctity of spousal communications as predominant, the Bombay High Court recommended the State Government to approach the Law Commission or the Ministry of Law and Justice, Government of India with a proposal for amendment of Section 122 of the Evidence Act. Be that as it may. We are, nonetheless, bound by Section 122 and its implications, so long as it remains in the statute book.

Truth be told, the Bench then envisages in para 70 that:
We find that the judgment impugned is built up on the foundation of surmises and conjectures and, therefore, squarely in the teeth of the judgments above referred, wherefore, it is our duty to set right the wrong, by setting aside the impugned judgment. The judgment impugned is so manifestly wrong leading to miscarriage of justice as held in Arun Kumar and Alla Rakha K.Mansuri (both supra).

No wonder, the Bench then holds in para 71 that:
We, therefore, set aside the impugned judgment of acquittal. We find that the accused is guilty of having caused the death of the deceased, attracting the offence under Section 300 of the Penal Code. The overt acts are done with sufficient pre-meditation, with the definite intention of causing death of the deceased. The accused, severed and rammed the car deliberately on the motor cycle of the deceased, coming from the opposite direction, where after, the deceased was stabbed thrice on his neck by MO1 knife.

The situs and number of injuries would leave no doubt, whatsoever, as regards the definite and clear intention of the accused to cause death of the deceased. The accused is driven by a definite intention to finish off the deceased; though there is discernible no apparent motive. We find that the offence attracted is nothing but the one under Section 300, since the act does not fall under any of the exceptions to the offence under Section 300.

In conclusion, it is high time and now our lawmakers must act promptly and amend Section 122 of Evidence Act as recommended now by the Kerala High Court and so also earlier by High Courts like Bombay! How can criminals be allowed to exploit it as a weapon to save themselves from being punished in accordance with law? It is time to reconsider Section 122 in the light of modern times as has been directed by the Kerala High Court so very commendably! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh