Kerala High Court
State Of Kerala vs Mavila Thamban Nambiar on 19 January, 1993
Equivalent citations: 1993(1)ALT(CRI)686, 1993CRILJ1817
JUDGMENT Chettur Sankaran Nair, J.
1. This Appeal by the State of Kerala and the revision by P. W. 1 in S.C. 57/88 on the file of the Court of Session Kasargod Division, is directed against the order of acquittal made in that case.
2. Respondent-accused stood trial for causing the death of one Madhavan by stabbing him in the chest with M.O. 2 Scissors, with the intention of causing his death, at or about 8 p.m. on 10-5-88 at Kattapunna, the offence punishable under Section 302, IPC.
3. A "Thaiyyam" (a village ballet) was scheduled for the day. For purposes of that, deceased wanted a lighted petromax which was in the shop of the accused and made a request therefor. Understandably, the accused refused this request. Earlier in the day, the brother of deceased had also made a request for two benches in the shop of the accused, for purposes of the "Thaiyyam". Referring to these an exchange of words followed between the accused and the deceased, leading to a scuffle. P.W. 1 and others counselled the parties not to engage themselves in a fray. P.W. 6 is then, said to have taken the deceased by his hand presumably to lead him away. Upon that the accused who was sitting on a stool is alleged to have picked up a pair of Scissors M.O. 2 lying on the table infront of him, and inflicted a stab injury on the right side of the chest of deceased Madhavan. Accused made another attempt to inflict a stab on the right side of Madhavan's cheek. The Scissors fell from his hands.
4. The injured was taken in a lorry and that broke down on the way to the hospital. A car was procured to continue the journey. En route, he breathed his last. P.W. 1 then went to the Kasargod Police Station, and made a report to the Head Constable on duty, P.W. 13. He recorded Ext. P11 first information report and transferred the same to the Bakel Police Station, in whose jurisdiction the incident had taken place. The Bakel Police registered Ext. P12 first information report. Ext. P11 first information report recorded at 9 p.m., reached the Magistrate at 10 p.m. itself. P.W. 15 took over the investigation. Ext. P2 is the inquest and Ext. P3 the scene mahazar. The dead body was sent for postmortem examination. P.W. 10 held an autopsy and issued Ext. P5 certificate. According to him and apparently too, the injuries sustained by the deceased were sufficient in the ordinary course, to cause the death of the person sustaining the injuries. There was a punctured wound on the pericardium and on the chest wall with counter-punctures on the posterior wall opening into the pleural cavity. The puncture wound on the heart admitted a little finger and the right lung had collapsed and the pleural cavity contained two litres of blood stained fluid. The accused was arrested on 14-5-1988. P.Ws. 1 to 6 speak to the occurrence, while P.W. 9 speaks to the recovery of M.O. 2 Scissors. On this evidence the accused was sent up for trial. The defence of the accused was one of total denial. The Court below was not prepared to rely on P.Ws. 1 to 6 and acquitted the Respondent-accused.
5. P.W. 1 would say that the deceased asked for the petromax and that the accused promptly refused the request as he needed it himself, for light in his shop. There was an exchange of words and a scuffle ensued. P.W. 6 and others intervened to bring peace. P.W. 6 held the deceased by his hand, apparently in a bid to take him away and then the accused is said to have picked up the Scissors (M.O. 2) and inflicted a stab on the chest of the deceased. Another stab was aimed at the check. The Scissors fell down. The injured was taken to the hospital and en route he breathed his last. To the same effect, is the evidence of P.Ws. 2, 3, 4, 5 & 6.
6. P.Ws. 1 & 2 denied the suggestion that the deceased has assaulted the Respondent-accused. P.Ws. 2, 3, 4 & 5 stated that the accused had sustained an injury on his head, when his head hit against a wall.
7. The Court of Session, resolutely rejected the evidence of the eye witnesses, as it were, for reasons which we consider too transparent, to stand scrutiny, of P.W. 1, the learned Sessions Judge said that he made a bid to suppress material evidence. The Sessions Judge observed that the witness had not denied that the accused had sustained an injury though he had stated that "he had not seen the accused sustaining an injury". He went to reason from this, that the accused had sustained an injury. The logic of this, is hard to perceive. Words must be read, to gather their natural meaning. The Sessions Judge was not justified in making a facile assumption, that the witness was not speaking the truth. A witness who speaks under oath, is presumed to speak the truth, unless otherwise shown. The most important circumstance overlooked by the Court below, is that the first information statement made by P.W. 1 within minutes of the occurrence, is in line with his evidence in the court. The occurrence was around 8 p.m. and the first information statement was recorded at 9 p.m. One cannot make cynical or macabre assumptions, that during that short span, P.W. 1 would have fabricated a false case. He had seen a gruesome event, a man dying before his eyes. It is too much to think that P.W. 1 who had no motive whatsoever, to implicate the accused in an offence punishable with death or imprisonment for life, would have put frills or embroidery to distort the truth. The grounds held against P.W. 1 are untenable.
8. For identical reasons the evidence of P.W. 2 also has been rejected. It eludes comprehension why P.W. 2 should have come out with a false story to implicate the accused. He has given a clear and cogent version of what he saw, and his evidence has not been shaken in cross-examination. No different are the reasons held out against P.W. 3 for disbelieving him. He was disbelieved on the basis of a contradiction. The contradiction was that while according to P.W. 3, P.W. 1 intervened only after the accused stabbed the deceased, P.W. 1 stated that he stood between the accused and the deceased prior to the stabbing. Such minor matters cannot be blown out of proportion. The law of evidence cannot be far apart from the law of life. It must be remembered, that powers of observation, retention and expression vary between person to person, as stated by the Supreme Court in M. K. Antony's case AIR 1985 SC 48 : (1985 Cri LJ 493). Even otherwise, P.W. 3 has not glued his eyes to see the murder that was to take place. In a split second, he witnessed a murder. Minute differences between versions of witnesses cannot render evidence unreliable. It is worthwhile recalling the observation of the Supreme Court in Inder Singh v. State, AIR 1978 SC 1091 : (1978 Cri LJ 766). The Court said (at page 767; of Cri LJ):
If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish....
The evidence of P.W. 4 was rejected on the ground that he could not have seen the incident, as he was engaged in making tea in another room. The learned judge forgot that P.W. 4 did not have long distances, or long hours, to travel from where he was making tea, to where the murder had taken place. A second would have been sufficient to reach the scene. The learned judge adopted an unrealistic attitude, when he said that it is, Crystal clear that from the said room it is not possible to see what is happening outside.
There was no local inspection. When there was an altercation a couple of feet or so, and heated exchanges it is but natural, that the tea maker would step outside and see what was happening. One would not expect him to be a casabianca, to stand at the post of duty making tea, unmindful of the unusual event happening, paces away.
9. The evidence of P.W. 5 a neighbouring shop keeper is rejected on the ground of professional jealousy. The Sessions Judge says that because of the prosperous trade run by the accused, the humble trade of P.W. 5 ran into a rough weather, and that this afforded him "an axe to grind". We are afraid that the learned Sessions Judge has viewed human nature with a great measure of cynicism assuming too readily that one would for swear his professional rival (or assumed professional rival) to the gallows or life imprisonment. There is no justification in thinking that prosecution witnesses in general, utter nothing but lies, and that they are motivated, by the lowliest of motivations.
10. The reason for rejecting the evidence of P.W. 6 is equally untenable. According to the Sessions Judge P.W. 6 could not say who were travelling in the cabin of the lorry carrying the injured to the hospital. P.W. 1 stated that he went with the injured. P.W. 6 was not very sure of the identity of persons in the lorry. The Sessions judge said :
P.W. 6 was fully aware who were all sitting in the cabin and who were all at the back. So there is conflicting version by P.Ws. 1 and 6 with regard to the fact of P.W. 1 accompanying the deceased in the lorry.
One wonders what P.W. 1 or P.W. 6 had to gain, by uttering a lie, on an inconsequential matter. Whether P.W. 1 travelled in the lorry or not, would make precious little difference, to the issue in the case. It is unreasonable in the extreme to view evidence, from such angles.
11. It is not proper to assume that prosecution witnesses utter nothing but untruth, and for no reason. A criminal trial is not a fairy tale, where one is free to give flight to imagination. Nor is it proper, as pointed out by the Supreme Court in A.M.A. Rehman v. State of Gujarat, AIR 1976 SC 1782 : (1976 Cri LJ 1382) to raise sinister suspicion in place of judicial assessment. Evidence must be evaluated informed by experiences of life, broad probabilities and sound forensic sense. Intangibles are incommensurable, and yardsticks of forensic evaluation must be applied with a sense of realism. Vague hunches cannot place of judicial evaluation. In State of U.P. v. Krishna Gopal, AIR 1988 SC 2154 : (1989 Cri LJ 288) Venkatachaliah, J. speaking for the court said (at page 295; of Cri LJ):
Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense... uninformed legitimisation of trivialities would make a mockery of administration of criminal justice.
(Emphasis supplied) In the same strain, are other decisions of the apex court. In Shivaji Sahebrao Bodade v. State of Maharashtra, AIR 1973 SC 2622 : (1973 Cri LJ 1783) the Court observed (at pages 1787 & 1788; of Cri LJ):
The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good, regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape.... The cherished principles of golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every bunch, hesitancy and degree of doubt...our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic.
On vague hunches, unjustifiably upgraded to reasonable doubts, unmerited acquittals cannot be made. The words of Viscount Simon in Stirland v. D.P.P. (1944 PC (AC) 315) quoted with approval by the summit court in State of U.P. v. Anil Singh, AIR 1988 SC 1998 : (1989 Cri LJ 88) bear useful repetition.
A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape.... Both are public duties.
12. Viewed in this profile, we are unable to agree with the findings of the Sessions Judge, rejecting the evidence of six prosecution witnesses on the basis of fanciful suspicions. The Court below misdirected itself in fact and law.
13. Learned counsel for the accused referred to a statement made by P.W. 2 to contend that the deceased was the aggressor. P.W. 2 stated that a bleeding injury was caused on the head by hitting with an iron rod. If the language used by the witness is torn out of context, the statement can mean that some one hit the accused with an iron rod. However, he does not say that any one hit the accused. Such artificial constructions cannot be put on words used by witnesses, who are not grammarians. Cross-examination is often an 'unequal duel between a trained counsel and a rustic witness" and words by witnesses are not terms of art. From the evidence of P.Ws. 1 and 3 to 6, it is crystal clear that what he meant was that the iron handle hit on the head of the accused, when he lost his balance and fell against the well.
14. Learned counsel argued further that the accused acted in private defence. The accused had no such case in his statement made under Section 313, Cr. P.C. Yet, the Court has a duty to consider any plausible defence, that may arise on the facts. Merely because an injury was seen on the head of the accused, an assumption cannot be made that such injury was caused by the deceased. Prosecution witnesses and more particularly P.Ws. 3 & 4 state that the accused lost his balnce, and that his head hit against a wall. We do not understand the law to be that every injury on the accused suggests aggression against him. The matter is academic for purposes of this case, as there is clear evidence as to how the accused sustained a head injury. It is not even the case of the defence counsel that an incised injury or a contused injury was inflicted.
15. Having bestowed anxious consideration on the entire evidence, we feel no hesitation to hold that the prosecution has proved beyond reasonable doubt, that the accused-respondent attacked the deceased. A realistic reading of the evidence of P.Ws. 1 to 6 prove beyond the shadow of a reasonable doubt that the accused stabbed the injured with a lethal weapon on a vital part of his body, with the intention and knowledge necessary to attract the offence under Section 300, IPC. The version put forward by the prosecution in the court gains credibility from the fact that the first information report made within minutes of the occurrence and not beyond an hour of the occurrence, corroborates the evidence in all essential details. Appreciation of evidence made by the Court below is unreasonable. It is not that we are substituting our views, in place of the views of the trial court. It is a case where the view taken by the Court below is not a reasonable view by any standard.
16. In the result, we set aside the order of acquittal and convict the accused for the offence punishable under Section 302, IPC. We sentence him to suffer imprisonment for life. The Criminal Appeal and Revision Petition are accordingly allowed.