Benny P.Jacob vs Rajesh Kumar Unnithan on 25 September, 2019

[Cites 23, Cited by 3]

Kerala High Court

Benny P.Jacob vs Rajesh Kumar Unnithan on 25 September, 2019

Crl.R.P No.656 of 2010 is a victim revision filed by Benny P. Jacob who is the brother of the deceased and Crl.Appeal No. 305 of 2014 is preferred by State of Kerala. Both these cases are filed challenging the judgment passed by the Additional Sessions Judge, Manjeri in S.C. No.151 of 2008 dated 15/09/2009 by which the accused Rajeshkumar Unnithan was acquitted of all charges levelled against him.

2. At the very outset, it can be seen that the appeal preferred by the State is defective as it was not preferred by the State Public Prosecutor. In State of Kerala v. Krishnan (1981 KLT 839) a Division Bench of this Court after considering the question as to whether the Government can direct the Advocate General to prefer an appeal against acquittal, it was held that in terms of S.378(1), of the Criminal Procedure Code, the State has to file an appeal before the High Court against an order of acquittal through the Public Prosecutor of a High Court appointed Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:5:- by the State Government or Central Government u/s 24(1) of the Cr.P.C. and nobody else can present the appeal even if there is a direction by the State. For that reason, the appeal filed by the State is incompetent and has to be rejected as not maintainable. Hence, we are concerned with Criminal Revision Petition only at present.

3. Case of the prosecution is that on 03/08/2005 at about 11.45 p.m., accused trespassed into the courtyard of the house of the deceased Johny situated at Pathirappadam, with an intention to kill PW4 who is the Revision Petitioner herein, and in fact made an attempt on his life by stabbing on his chest and back with a dagger due to which PW4 sustained serious injuries. When Johny intervened and tried to separate them, accused stabbed him with a dagger on his chest and abdomen with the intention to kill him. As a result of the said injuries, Johny died. Motive for the crime is alleged to be the scandals spread by PW4 Benny about the lady love of the accused.

4. Learned Senior counsel Sri.Bechu Kurian Thomas, appearing on behalf of the revision petitioner argued that great prejudice and grave injustice is done to the victim by the Court Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:6:- below through its verdict. Court below committed serious error in acquitting the accused. Evidence of PW4 who is an injured eyewitness, was not at all considered properly. Trial Judge was carried away by the minor discrepancies in the evidence. The learned Public Prosecutor Sri.S.U.Nazar also, while supporting the victim's revision, argued that the acquittal of the accused by the court below was perverse and unreasonable and hence warrants interference.

5. Learned counsel for the accused argued that the case on hand was disposed of by the learned Sessions Judge on merits and it is a well-reasoned verdict. Any attempt from the part of this Court to remit back the case for re-trial or re-hearing would obviously be taken as an indirect direction to the learned Sessions Judge to convert the finding of acquittal into one of conviction. The Revision Petition is a baseless one. Evidence even from the stage of registering FIR is fabricated and manipulated. He pleaded to dismiss the petition.

6. Section 401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') deals with powers of High Court in Revision. Section 401 reads as under:-

Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:7:-

401. High Court' s Powers of revisions.

(1) In the case of any proceeding the record of which has been called for by itself or Which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code tan appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

Sub section (1) of Section clearly provides that the High Court can Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:8:- exercise any of the powers conferred on a Court of appeal including power under Section 386 of Cr.P.C., while exercising its revisional jurisdiction. Section 386 of Cr.P.C. reads as follows:

"386. Power of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;

(c) in an appeal for enhancement of sentence-

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:9:-

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal".

Even though Section 386(a) empowers the appellate Court to reverse an order of acquittal, find the accused guilty and pass sentence on the person concerned who is found guilty, Section 401 (3) specifically excludes the power to convert a finding of acquittal into one of conviction. In other words, this Court while exercising its powers of revisional jurisdiction can resort to all options sans the one to convert a finding of acquittal into one of conviction.

7. The fact that Johny died on account of the injury sustained by him on 3/8/2005 cannot be disputed. PW6 is a photographer who had taken the photographs of the dead body Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:10:- of Johny and the scene of occurrence. Exts.P6 to P14 are the photographs and Exts.P6(a) to P14(a) are the negatives of the dead body. The photographs of the place of occurrence are produced as Exts.P15 to P20 and its negatives as Exts.P15(a) to P20(a). Ext.P21 is the scene mahazar and it is attested by PW7 who identified MO6 torch, MO7 series chappals, MO8 towel and MO9 cotton which were seized from the scene of occurrence. However, in his evidence, he stated that he does not know from where the material objects were seized. PW11 is the Doctor who examined deceased Johny and his brother PW4 immediately after the incident that is at 12.20 am on 4/8/2005. PW11 deposed that Johnny was brought dead. He gave first aid to PW4 and referred him to the Government Hospital, Nilambur. PW15 has examined PW4 Benny at 1.10 a.m on 4/8/2005 at the Government Hospital, Nilambur and he has issued Ext.P31 wound certificate. PW16 proved Ext.P32 discharge certificate in relation to the treatment given to PW4 at Medical College Hospital, Kozhikode.

8. The inquest of the deceased was conducted by PW20, the Circle Inspector of police. He arrested the accused on 12/8/2005 from the District Hospital Manjeri as per Ext.P42 arrest Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:11:- memo. The accused also had suffered certain injuries. He was also treated by PW15 and Ext.D3 is the wound certificate. Accused was discharged from the hospital on 12/8/2005 and PW21 has issued the discharge certificate which is marked as Ext.P56. Post-mortem of deceased Johny was conducted by PW10 who was the Assistant Professor and Deputy Police Surgeon in the Department of Forensic Science, Medical College Hospital, Calicut during the relevant time. Ext.P27 is the post-mortem certificate. Johnny suffered four incised wounds, an abrasion and a contusion as described hereinafter.

"1. Incised wound, left side of chest oblique 4.8 x 2 cm with a nick on the upper margin with corresponding notch on the lower margin 3.2 cm above the lower end. The upper inner end was 17 cm outer to midline 15 cm below collar bone. Both ends were sharp cut. The wound entered the chest cavity cutting 4th and 5th inter costal space and 4th rib. Obliquely an entered the upper lobe of lung for a depth of 4 cm. The wound was directed upwards, inwards and forwards for a total minimum depth of 8 cm.

2. Incised wound 8.43 cm right side of chest. The outer 5.6 cm was horizontal and then obliquely upwards. The inner end was 22 cm below collar bone 13 cm outer to midline. Both ends sharps cut. At the junction of the oblique limb and horizontal limb there was a superficial incised wound on the lower margin in line with the horizontal limb directed Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:12:- downwards and inwards for 1 cm. The lower inner end was sharp cut. On the upper portion of the lower limb there were two superficial incised wounds 1.5 (outer) and 1cm (inner). The inner one was in line with the lower margin and the end of the outer one 0.5 cm outer to the inner one. The wound entered the chest cavity through 8 th and 7th intercostals space cutting the 7th rib and then pierced the lung on the lower lobe 4x0.3x3.5 cm 2.3 cm inner to the above injury on the lungs there was another incised wound 0.6x0.5x0.5 cm. 2.5 cm inner to this there was a through and through injury 5 cm long and the caused a superficial incised wound obliquely over the 10th and 11th intercostal space and the 11 th rib. Th inner lower end was on the upper margin of the inner back end of 12 th rib. This was directed inwards downwards and to the back for a total minimum depth of 13 cm.

3. Incised wound on the left side of abdomen through which coils of intestine was protruding out. The wound was 8x2 cm oblique, both ends sharp cut and the upper inner end was 10 cm outer to midline 33 cm below collar bone. 4 cm inner to the outer end t here was a nick with corresponding notch. From the outer end the wound extended upwards and outwards as a superficial incised wound for 2.6 cm. The wound entered the abdominal cavity just below the rib margin and caused a through and through injury on the mesentry 20 cm distal to the duodenojejunal junction incised wound on the small intestine 30 cm and 36 cm distal to the deodenojejunal junction.

4. Superficial incised wound 3.5x0.5 cm back of left upper arm oblique with tailing for 4.5 cm upwards and outwards lower back and 4 cm above the midline bony prominence of elbow.

Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:13:-

5. Abrasion 5x0.8 cm back of left forearm, 2 cm above injury NO.4 and almost parallel to it.

6. Contusion 5x3.5 cm inner and front aspect of right elbow and forearm 1 cm below mid portion of elbow."

PW10 opined that Johny died on account of the stab injuries to his chest and abdomen. From the evidence of PW10, it is rather clear that Johny's death is a homicide and PW4 suffered injury with a knife.

9. The only question to be considered is whether the accused had committed the crime. Prosecution relied upon the oral testimony of PW1, PW4 and PW17.

10. PW1 is the wife of Johny, PW4 is the brother of Johny who is the injured eyewitness and PW17 is the mother of Johny. PW1, PW4 and PW17 gave evidence stating that the incident took place in their presence. PW1 and PW17 deposed that they saw the accused stabbing the deceased and PW4 with MO1 knife. PW4 deposed that when the accused attempted to stab him with MO1 and he sustained injuries on his chest and abdomen, his brother Johny intervened and accused stabbed him several times which resulted in his death.

11. The First Information Statement (FIS) regarding the Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:14:- offence was given by PW1, wife of deceased Johny. Ext.P1 is the FIS. FIS was recorded by PW18 and he registered Ext.P33 FIR. One of the reasons stated by the trial Court for acquittal was that when the incident occurred at 11.45 p.m on 3/8/2005, and there is evidence to show that police party reached the house of PW1 immediately and the FIS would show that same had been recorded at 03.15 hours on 4/8/2005 and the FIR is seen registered at 4.30 a.m., evidence of PW1 is that she had come to know about the death of her husband only at 6.00 am on 4/8/2005, whereas in Ext.P1, it is stated that her husband died on account of the injury sustained in the incident. The trial Court felt that if PW1 had known the said fact of death only at 6.00 am on 4/8/2005, she would not have indicated it in Ext.P1. Therefore, according to the Court below Exts.P1 and P33 had been ante- timed and therefore, it is possible that the earliest version of PW1 is suppressed and Ext.P1 is a subsequent creation after giving shape to the prosecution case. That apart, there is delay in sending the FIR to the Magistrate.

12. There is no dispute about the fact that the incident occurred at or about 11.45 p.m on 3/8/2005. Johny was Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:15:- taken to the hospital and he was declared dead by the Doctor PW11 at 12.20 a.m. Therefore, while giving FIS at 3.15 a.m, necessarily, PW1 would have known about the death of her husband. PW1 in her evidence had clearly stated about the incident. According to her, on 3/8/2005, at around 11.30 p.m, she heard a calling bell and somebody calling Benny. When asked, they were told that it was Rajesh. Johny opened the door and she asked her husband who it was and he said it is Rajesh who had come to see Mani. When Johny went out, Rajesh told that he had come to see Benny. Johny informed him that Benny was in the neighboring house. PW1 and Johny called Benny. Benny came out. Benny and Rajesh were standing in the courtyard of PW1's house. They were talking. PW1 and Johny went to their sit out. Rajesh took a knife from behind his waist and inflicted injury on Benny. At that time, Johny proceeded towards Benny and Rajesh inflicted a wound on Johny's abdomen and chest. Johny and Benny got injured. Johny's mother was residing with Benny. She had also come from the family house and was sitting with them. PW1 ran towards Johny and caught hold of him. Johny fell down. His intestines came out. They cried aloud. People in the locality Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:16:- came. At that time, Rajesh proceeded towards the school through the northern pathway. The neighbours took Johny and Benny in an auto to the hospital. She heard during night itself that Johny died. That was about 11.45 p.m and police came by the night itself and she explained the incident to the police. During cross- examination, the suggestion of the defence was that she had come to know about the death of Johny and that the body was in the mortuary of Government Hospital, Nilambur the next morning at 7.00 or 8.00 a.m, which she denied. To yet another question, she answered that she came to know that Benny was taken to Medical College Hospital next day morning at about 6 a.m. and at that time she knew about the death of Johny and that the body was in the mortuary. She further stated that within 30 to 45 minutes, the Sub Inspector of Police and his party came and they recorded her statement. She signed the said statement as well. This evidence, according to the Court below, was a major discrepancy which renders Exts.P1 and P33 to be fabricated. The FIR reached the Magistrate Court at 10.35 a.m on 4/8/2005. Apparently, the incident happened around 11.45 p.m., on 3/8/2005 and the FIR reached the Court by 10.35 a.m on Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:17:- 4/8/2005. There is absolutely no reason for the police to manipulate the evidence. There is justification for the delay in recording the FIS, though the police would have reached the scene of occurrence immediately. Immediately after the incident, PW1 would have been in a trauma. She had seen her husband being stabbed and even his intestines have come out. People have taken him to hospital and she knew about the death of her husband. At that time probably it was not possible for the police to record her statement immediately. The other witness was PW4, who was already taken to hospital. A stray sentence during cross examination of a hapless woman, by itself should not have been taken as a reason to arrive at the conclusion that FIR and FIS were fabricated. The Court below ought to have considered the entire evidence as a whole to understand the credibility of the prosecution case.

13. PW4 is an injured witness. He suffered the following injuries as evident from Ext.P32.

"1. 5x3 cm wound, 3 cm deep on right side of chest. It is an incised deep wound.

2. 4X1 cm incised wound on the left side of abdomen.

3. 6x4 cm incised wound 5 cm deep on the left side of Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:18:- abdomen.

4. Incised wound 3x1 cm on right ring finger.

5. Lacerated wound 4x1 cm on left hand."

PW16 who treated PW4 opined that those injuries were sufficient to cause death. PW4's evidence cannot be disbelieved in any manner. PW4 has also given evidence in the manner spoken to by PW1 and nothing has been brought out in the cross-examination to discredit the said witness. The line of cross-examination proceeds on the basis that it was the deceased and PW4 who attacked the injured and a distorted version of the incident is put forward in the case by suppressing the real incident.

14. Court below further observed that PW1 had given evidence in regard to certain matters which were not stated in Ext.P1 FIS. It is trite that FIS is not an encyclopedia of the incident. The question is whether there is any omission in the evidence which can be treated as contradiction. We are of the view that Court below had relied upon flimsy reasons to discard the evidence of PW1.

15. Yet another factor which weighed with the Court below was that the witnesses have not stated anything about any injury being caused to the accused. Reference is made to Ext.D3 Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:19:- wound certificate and evidence of PW15 and PW21. Evidence in the case would indicate that the accused had gone to Sevana Hospital and thereafter to Nilambur Government Hospital and also to District Hospital Manjeri where he was admitted till 12/8/2005. He had filed a complaint to police against Johny and Benny. The said case was referred without investigation. The trial Court found that when the accused also suffered injuries in the same incident, there is every possibility that PW1, PW4 and PW17 evidencing the same. If they does not mention anything about the accused sustaining any injuries, it affects the credibility of the prosecution case. Learned counsel appearing for the revision petitioner submits that at the time when the accused left the scene, he did not suffer any injury and it was all self inflicted injures. Ext.P55 which corresponds to Ext.D3 would indicate that he had suffered four incised wounds, one on his left forearm, second on his upper part of right side of chest, left side of scalp, right side of scalp and a lacerated wound on the right side of chest. This is a case in which the incident had happened in the courtyard of PW1, PW4 and Johny. The presence of PW4 is virtually admitted and the incident is also admitted by the Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:20:- defence. Their only contention is that the assailants were Johny and PW4. Even assuming that the said version is true, during a fight when Johny suffers severe injuries and he succumbs to the injury, it was not proper for the court below to have completely disbelieved PW1, PW4 and PW17 especially when the incident is admitted and PW4 is an injured eyewitness.

16. Trial court felt that the incident spoken to by prosecution witnesses was a distorted version and the real incident had been suppressed. As far as the injuries on the victim are concerned, they are all minor and superficial injuries. PW15, the Doctor who had treated him deposed that he noticed the injures mentioned in Ext.D3. During cross-examination, he deposed that the said injuries can be caused in a scuffle and the possibility of self inflicting the injuries cannot be ruled out.

17. The learned Sessions Judge also failed to consider the statement given by the accused to PW21, on the basis of which, a crime has been registered. In Ext.P57, the statement recorded by PW21, the accused had a different version altogether in which he had admitted that he had gone to the house of Benny to question him since Benny was making allegations against Divya. He Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:21:- pressed the calling bell and Benny's brother Johny came out along with his wife. He asked Johny about Benny's house and Johny pointed out Benny's house. In the said statement, he virtually admits the presence of PW1. However, he further states that while he and Benny were having a conversation, Johny slapped him on his face and while he was conversing with Benny on the road, Benny came with a knife which looks like a sword and stabbed him. PW4 (Benny) also inflicted a blow with a firewood stick which was lying there. He fell down. He suffered injuries. When he felt that they will kill him, he took the knife which he had and brandished. He does not know who were hit. He thereafter ran away. Ext.P57 was recorded by PW22. The defence case is that Ext.P57 contains materials which have not been spoken to by the accused. The evidence of PW22 had not been properly considered by the trial Court while appreciating the prosecution case.

18. Yet another factor which weighed with the Court below was that there were 10 to 20 persons residing near the house of deceased. In fact, no one has a case that any other person in the neighbourhood had witnessed the incident. All those persons, Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:22:- who assembled there came on hearing the hue and cry of PW1, PW4 and PW17. They were not witnesses to the crime and therefore the court below was not justified in finding that independent witnesses were not examined.

19. During 313 questioning, the accused having denied the incriminating circumstances against him stated that, on 3/8/2005 by 11.00 p.m, he had gone to the house of Divya (PW2) as he was in love with her. From the said house, when he was returning by 12 midnight, PW4 came running and restrained him. While he was walking back home through the mud road towards the nearby post office, immediately Johny also came to the said mud road. Johny and Benny started beating him and inflicting injury with a knife and a firewood piece. He sustained injuries on both sides of his head, on his chest and left hand. In that incident, Johny and Benny some or how suffered injuries. With the injuries, he proceeded to the house of CW14 the Panchayat member Thankachan. Thankachan called an auto and initially the accused was taken to Sevanam Hospital at Edakkara and thereafter to Government Hospital at Nilambur. Doctor examined him at Government Hospital, Nilambur and referred him to the District Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:23:- Hospital, Manjeri, pursuant to which he was an in-patient in the District Hospital from 4/8/2005 to 12/8/2005. While he was in the hospital, Head Constable from Edakkakra police station had obtained a signature from him but he had not recorded the details of the incident correctly nor the statement was read over to him. At the instance of PW4 and his relatives, police did not conduct proper investigation into his complaint and the matter has been referred and a false case has been registered against him.

20. PW2 Divya who is the lover of the accused deposed that the accused used to visit her frequently. Later they also got married. She deposed that on the date of incident, the accused came to her house at 11.00 p.m. She turned hostile to the prosecution. She further deposed that at about 11.45 p.m, the accused left her house. She heard a hue and cry of the accused from the nearby mud road. When she rushed to the spot, she saw the accused, deceased and PW4 with injuries. She further deposed that PW4 did not like the relationship she had with the accused and he and his friends used to tease her. He had also threatened that they would stop the accused visiting her house. Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:24:- From the evidence of PW2, who is a hostile witness, from the statement given by the accused u/s 313, and the line of cross- examination of PW1, PW4 and PW17 would prove that an incident occurred and in the said incident PW4 and Johny sustained injuries and Johny later died on account of the said injuries. In other words, the incident is virtually admitted by the accused, but the only defence is that it happened while exercising the right of private defence and secondly the incident did not happen in the courtyard of the deceased whereas it was on the mud road.

21. PW1, PW4 and PW17 had stated that the incident had happened in the courtyard of the house of PW1 and PW4. In the scene mahazar Ext.P21, it is stated that the scene of occurrence is the courtyard of the house in which PW17 and her family were residing at building No.X/434. It is 9.87 metres from the north- eastern corner of the building towards north-east in the courtyard. A pool of blood having 18 cm circumference was seen, 3 metre on the north-western side of the courtyard in 18 cm circumference, 3 metres away from the north-western corner of the step leading to the sit out of the house. It is also noticed that 40 cm and 20 cm away from the aforesaid spot, a pool of blood Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:25:- was seen. From there, 37 cm on the north-western side, they saw a blood-stained towel. Sample of the blood-stain was taken in a cotton. From the place where the towel was seen, towards the north-western side by about 7½ metres, a red SANYO electric torch was seen. A Hawai chappal was seen 11.44 metres on the north of the scene of occurrence. Its pair was seen 1.64 metres on the north-west of the said place and another chappal as well. The material objects were seized by the police. The courtyard is having a measurement of 10.64 metres length and 9.50 metres width. The mahazar is proved by the investigating officer PW20. He deposed that he had prepared Ext.P21 mahazar from the scene of occurrence and MO6 to MO9 were seized. As per Ext.P21 the scene of occurrence is the courtyard of Johny. He also deposed that the accused was arrested at 3.30 p.m on 12/8/2005 from Manjeri Government Hospital. Ext.P42 is the arrest memo and Ext.P43 is the inspection memo. Based on the confession statement of the accused, on 13/8/2005, MO1 knife was recovered as per Ext.P23 seizure mahazar. Ext.P45 is the extract of the confession statement. During investigation, a report was sent to the court requesting to change the time in Ext.P33 FIR as Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:26:- 11.45 instead of 11.30 p.m. Ext.P46 is the said report. The materials collected were sent for chemical analysis as per Ext.P48 property list and the chemical analysis report is Ext.P52. He also deposed that, on the basis of complaint of the accused, Crime No.222/2005 was registered by Edakkara Police Station on 5/8/2005 under Sections 323 and 324 r/w 34 of I.P.C. Ext.P53 is the FIR. Case was registered by CW53. He enquired about the said case and it was found that it was a mistake of fact and final report was submitted. Ext.P55 is the final report. Though it was suggested to him that on 4/8/2005 at about 00.10 hours while the accused was walking through the mud road to his house from the house of PW2, Johny and Benny attacked the accused with a knife and accused suffered injury, it was denied by PW20. According to the defence, the incident happened in the mud road and Johny and PW4 were the aggressors. However, the cross-examination further indicates that accused denies the fact that he had inflicted any injury either on Johny or PW4.

22. From the aforesaid materials, it is rather clear that the incident had been virtually admitted, but the accused denies that he had caused the injury on Johny and PW4. However, at the time Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:27:- of hearing, the counsel for the accused had taken the plea of right of private defence which is also evident from the 313 statement, but still accused does not admit the fact that he had committed any aggression. According to him, Johny and PW4 suffered injury in the fight that followed when he was attacked. The trial Court seems to have accepted the version of the defence without considering the evidence in its totality.

23. The scene of crime is in the courtyard of PW17, where Johny and Benny are residing in separate houses. Blood-stains were noticed in the courtyard itself as evident from the scene mahazar and as spoken to by PW20. There is no reason to doubt the genuineness of the scene mahazar or the evidence of PW20. Therefore, the finding that there was an attempt to change the scene of crime is unsustainable. PW20 has no grudge against the accused to change the scene of crime. Though the Court below finds that the testimony of PW1, PW4 and PW17 cannot be rejected merely because they are close relatives, proceeding further, their evidence had been discarded based on the only fact that PW1 had made a statement that she had come to know about the death of Johny at 6 am while she was being Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:28:- cross-examined. While considering the evidence of a witness, it is trite that the entire evidence has to be read as a whole and one stray sentence in the evidence cannot by itself discredit a witness. It is apparent that the Court below was trying to find out some reason to disbelieve PW1. But what about the evidence of PW4 and PW17. Why should they be disbelieved in the case? They have been disbelieved again on the ground that the injuries on the accused were not spoken by them. Even assuming that the accused had suffered any injury while the attack took place, it is relevant to note that police had conducted investigation into his complaint also and it was found to be a mistake of fact and his complaint had been referred. No further action had been taken by the accused to file a protest complaint. From the conduct of the accused, it is possible that the injury he had suffered might have been a self inflicted injury, cannot be ruled out. These aspects of the matter had been completely ignored by the trial Court. No reason had been stated by the Court below to disbelieve the scene mahazar.

24. Yet another aspect which was highlighted by the trial Court was that none from the locality had been examined in the Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:29:- case. During midnight, one cannot expect others other than the persons who are in the house to witness the incident. When PW4 has given evidence stating that he suffered grievous injuries and his brother also suffered fatal injuries, can it be believed that such injuries were self inflicted by them or can it be believed that the accused had no role at all in the injury suffered by Johny and PW4. If it is a case of right of private defence, it should be considered whether the accused had exceeded the right of private defence, in which event, he should admit that he inflicted the injuries.

25. Recovery of MO1 knife at the instance of the accused also is a factor which was rejected by the Court below. PW8 and PW9 are the witnesses to Ext.P23 mahazar. Both of them turned hostile to the prosecution. But they admit that they have put their signatures in Ext.P23. Apparently, they have signed the document knowing fully well that it is a seizure mahazar. Merely for the reason that they have turned hostile does not indicate that the recovery is bad in law. Investigating officer had clearly stated that MO1 knife was recovered based on the confession statement of the accused. Taking into account all these facts, we Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:30:- are of the view that the Court below committed serious error in appreciating the evidence available in the case.

26. Learned senior counsel appearing for the revision petitioner placed reliance on the judgment of the Apex Court in State of M.P. v. Sardar [(2001) 6 SCC 433]. This was a case in which the accused also suffered some injuries. The Apex Court held that the accused themselves are aggressors who had gone to the house of the deceased, broke open the door and inflicted fatal injuries to the deceased and serious injuries to the inmates of the prosecution party. They have the right of private defence and non explanation of the injury sustained by the accused in the same incident could not affect the prosecution case. Paragraphs 25, 27 and 28 are relevant, which reads as under:-

"25. The next contention of the learned counsel for the accused is that the prosecution has failed to explain the serious injuries caused to the accused and that the prosecution has suppressed the genesis of the incident and changed the scene of offence. It is proved on record that in the same incident the accused received serious injuries. Question is what is the effect of non-explanation of such injuries sustained by the accused. In the present case, it has to be decided whether the accused were the aggressors as contended by the prosecution, and Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:31:- aggressors to such an extent that they went to the house of the deceased, broke (sic open) the door and inflicted fatal injuries on Ahmad Noor and serious injuries on Mubarik, PW 2 and Yusuf, PW 4 and Ismile, PW 5".

"27. But, non-explanation of injuries may lose its importance where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood without much difficulty. It is also true that the reasonable inference which could be drawn in such cases is that the accused persons received the injuries during the course of occurrence and that some members of the prosecution party inflicted such injuries. On that basis again, the question would be whether the accused caused the injuries to the prosecution witnesses and the deceased by exercising right of private defence. If the prosecution establishes that the accused were the aggressors and went at the residence of the deceased or the prosecution witness and inflicted injuries on the deceased and witnesses, there is no question of right of private defence to the accused. On the contrary in such situation, the prosecution party would have the right of private defence. In Kashmiri Lal v. State of Punjab the Court observed thus: (SCC p. 478, para 17) "The law does not confer a right of self-defence on a person who invites an attack on himself by his own attack on another. The principle of right of self-defence cannot legitimately be utilised as a shield to justify an act of aggression. A person who is unlawfully attacked has every right to counteract and attack upon his assailant and cause such injury as may be necessary to Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:32:- ward off the apprehended danger or threat."

28. Facts proved on record establish that the accused were the aggressors. The accused and the prosecution witnesses were having long-standing dispute over the land. Because of previous incident of assaulting Yaqub, it is the prosecution story that all the six accused came at the scene of offence, first assaulted Ismile and at the house of Mubarik by breaking open the door which was closed, assaulted Ahmad Noor, Yusuf and Mubarik. At that stage, if someone from the prosecution party counter-attacked the assailants, there is no question of disbelieving the prosecution witnesses nor could any right of private defence to the accused be inferred. In such cases, there must be some evidence on record to probabilise such defence. In this view of the matter, we see no infirmity in the judgment of the trial court or in the judgment of the High Court in convicting the appellants in Criminal Appeal No. 872 of 1997".

27. In Dashrath v. State of Chhattisgarh [(2018) 4 SCC 428], the Apex Court highlighted the evidentiary value of an injured eyewitness. That was also a case in which the injury sustained by the accused was simple in nature and the Apex Court held that it was not incumbent for the prosecution to explain such injuries. Paragraphs 8 and 9 are relevant, which reads as under:-

"8. The next contention urged by the learned counsel is Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:33:- that the prosecution has not chosen to explain the injuries on the person of the appellants and this is fatal to the case of the prosecution. It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so, the prosecution case should be disbelieved. Before holding that non- explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions:

(i) that the injury on the person of the accused was of a serious nature; and

(ii) that such injuries must have been caused at the time of the occurrence in question. (Vide Takhaji Hiraji v.

Thakore Kubersing Chamansing, SCC p. 154, para 17.)

9. By going through the judgment of the trial court as well as the High Court, it is seen that the injuries sustained by the appellants were simple in nature and while so it was not incumbent upon the prosecution to explain those injuries. It is also relevant to note the answers elicited from the doctors that those injuries found on the accused could be self-inflicted".

28. What is the extent of revisional jurisdiction that can be exercised by this Court has been repeatedly dealt with by the Apex Court in Ganesha v. Sharanappa [(2014) 1 SCC 87], the Apex Court held that where the finding of acquittal is recorded on Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:34:- account of misreading of evidence or non consideration of evidence or perverse appreciation of evidence, High Court can set aside the order of acquittal and direct fresh disposal on merit by the trial Court, in which event the trial Court is obliged to reappraise the evidence in the light of the observation of the revisional court and take an independent view uninfluenced by any of the observations on the merits of the case. Paragraphs 11, 12 and 13 are relevant, which reads as under;

"11. However, in a case where the finding of acquittal is recorded on account of misreading of evidence or non-consideration of evidence or perverse appreciation of evidence, nothing prevents the High Court from setting aside the order of acquittal at the instance of the informant in revision and directing fresh disposal on merit by the trial court. In the event of such direction, the trial court shall be obliged to reappraise the evidence in light of the observation of the Revisional Court and take an independent view uninfluenced by any of the observations of the Revisional Court on the merit of the case. By way of abundant caution, we may herein observe that interference with the order of acquittal in revision is called for only in cases where there is manifest error of law or procedure and in those exceptional cases in which it is found that the order of acquittal suffers from glaring illegality, Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:35:- resulting into miscarriage of justice. The High Court may also interfere in those cases of acquittal caused by shutting out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In such an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an order of acquittal into that of an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.

12. The view, which we have taken finds support from a decision of this Court in Bindeshwari Prasad Singh v. State of Bihar, in which it has been held as follows: (SCC pp. 654-55, para 12) "12. ... Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the Revisional Court, prohibiting it from converting a finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with an order of acquittal except in Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:36:- exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party."

13. In the present case, the High Court in our opinion, rightly came to the conclusion that it is one of the exceptional cases as the finding of acquittal is on a total misreading and perverse appreciation of evidence. On the face of it, the High Court rightly set aside the order of acquittal but it gravely erred in converting the order of acquittal into that of conviction, instead of directing rehearing by the trial court. Ordinarily we would have set aside the order of the Revisional Court to the extent aforesaid and directed for rehearing by the trial court, but taking into account the nature of offence, at such a distance of time we would not like to charter that course".

29. In the light of the aforesaid discussion, we are of the Crl.R.P.No.656/10 & Crl.Appeal No.305/14 -:37:- view that the matter requires a rehearing by the trial Court itself. The evidence adduced by the prosecution had not been properly examined which had resulted in miscarriage of justice and therefore, it is necessary that the matter is remitted back to the trial Court for fresh hearing and disposal.

In the result, while dismissing Crl.Appeal No.305/14 as not maintainable, the Criminal Revision Petition is allowed. The judgment in SC No.151/2008 is set side and the matter is remitted back to the trial Court for fresh disposal. The trial Court shall rehear the matter based on the available evidence untramelled by any of the observations made in the judgment. The case shall be listed for hearing after issuing summons to the accused.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-


                                              N.ANIL KUMAR

Rp               True Copy                       JUDGE

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