Kerala High Court
Chandrasekharan Adithiripad vs State Of Kerala on 24 January, 1986
Equivalent citations: 1987CRILJ1715
Author: K.G. Balakrishnan
Bench: K.G. Balakrishnan
JUDGMENT S. Padmanabhan, J.
1. In S.C. 51/83,-the Sessions Judge, Kozhikode tried the appellant (first accused) along with his son the second accused for offences punishable under Sections 323 and 302 read with S". 34 of the Penal Code. Second accused was acquitted. No appeal has been filed by the State from the acquittal. Appellant was convicted for the offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life. The only question for consideration in appeal' is whether the appellant is proved beyond doubt to have committed the offence of murder. The main contention put forward before us at the time of arguments was that the appellant was acting in the exercise of the right of private defence.
2. The incident was at 9.45 p.m. on 7-6-1982'near the residence of the appellant. PW. 1 and the deceased were walking towards their houses on the north of the scene of occurrence. During night, deceased Achuthan Nair was returning home. He had no light with him. When he saw PW. 1 he enquired with him whether he is coming and whether he is having light. PW. 1 was having a torchlight in hand. The deceased was going in front and PW. 1 was following him from behind.
3. The residence of the appellant is to a small distance west of the scene of occurrence. Appellant and his son are Namboodiri Brahmins. Through the southern side of the Illom of the appellant, there is a revetment running east to west and ending at the entrance of a varamba. That varamba from the east leads to a footpath running from south to north and leading to the residence of deceased Achuthan Nair, PW. 1 and Ors.. On the southern side of the revetment, there was originally a bund which was used as a pathway by the deceased and Ors.. When one Divakara Warrier constructed the basement of a building over a portion of the area covered by the varamba, the remaining varamba was also demolished and converted as portion of the southern paddy field. Thereafter, access to the foot-path through that portion became impossible because the western paddy field is at a level 5 feet lower than the ground north of the revetment. When the varamba on the soutern side of the revetment was there, pedestrians removed some stones from the eastern extremity of it for the purpose of access to the northern foot-path. When the bund was demolished, that gap was re-built by the appellant. That act on the part of the appellant caused inconvenience to the deceased as well as PW. 1 because in the absence of that access they had to take a round about route for the purpose of getting access to the foot-path from the east. On this count there was some quarrel between the appellant and the deceased. It is in this background that the incident took place.
4. There is some difference between the prosecution and the defence regarding the actual scene of occurrence and the way in which the incident took place. The prosecution case is that the deceased and P.W. 1 were coming through the varamba shown as item No. 2 in Ext. P4 plan and they attempted to make entry to the foot-path through the continuation of that varamba west-wards, while the defence version is that PW. 1 and the deceased took a short-cut through the paddy field for the purpose of making entry through a portion of the revetment constructed by the appellant. While the prosecution case is that the deceased was only removing a new obstruction created by the appellant in the entrace of the foot-path by placing laterite stones, the defence version is that no such obstruction was created and there was no obstruction at all. On the other hand, the defence case is that the deceased and PW. 1 attempted to make entry to the foot-path from the southern paddy field by removing laterite stones used by the appellant for construction of the revetment on the southern side of his property. At any rate, it is admitted by both sides that the incident took place at a time when the deceased removed two or three laterite stones used by the appellant for the construction, whether it is on the entrance to the foot-path from the varamba or at the eastern extremity of the revetment on the southern side of the property of the appellant.
5. The prosecution case is that the second accused came to the spot, questioned the authority of the deceased to remove the stones and assaulted him. When the deceased retaliated, P.W. 1 separated them and held the 2nd accused. On hearing the cry of the 2nd accused, the appellant came with sword stick and at first inflicted a stab injury on the chest of the deceased as a result of which he fell down. Thereafter another stab injury was also inflicted by the appellant on the body of the deceased while he was lying.
6. On the other hand, the defence version is this. When the 2nd accused questioned the authority of the deceased to remove the laterite stones, he was beaten by the deceased. He cried out. The appellant came. He was also attacked by the deceased. He caught hold of the deceased. Both fell down into the southern paddy field. M.O. 1 sword stick which was with the deceased fell into the1 paddy field with its sheath. The appellant got it. Believing it to be a stick, he beat the deceased with it. By the time the sheath was removed from the weapon. There was grappling between the deceased and the 'appellant. It must be in the course of this grappling that the deceased might have; sustained injuries. No injury was inflicted knowingly or wilfully.
7. The fact that Achuthan Nair died as a result of the injuries sustained at the scene of occurrence is not disputed even by the appellant. The dispute is only regarding the way in which the incident started, continued arid ended. After hearing both sides elaborately and after perusing the oral as well as documentary evidence, we feel that the prosecution evidence, which was accepted by the trial court, is not free from doubt in these matters.
8. Even though the right of private defence is one which has to be proved by the accused, it is not necessary that such a specific plea should be taken or evidence adduced to substantiate the same. The accused will be entitled to rely on the prosecution evidence and circumstances themselves to substantiate his plea of private defence. Just like the prosecution, the accused is not expected to prove his defence beyond doubt. He can even rely on preponderance of probabilities. In claiming the right of private defence he can even seek shelter under benefit of doubt. If the court feels genuine doubt regarding the correctness of the prosecution evidence in relation to the incident, benefit of that doubt also could be relied on by the accused in the plea of his private defence. If the court feels that the prosecution has not placed the entire materials as to how the incident took place, that lacuna on the part of the prosecution could very well be taken advantage of by the accused in order to contend that if the entire materials were placed before court his plea of private defence would have been substantiated by the same.
9. If the prosecution evidence is accepted as true and correct, this is evidently a case in which the appellant is guilty of murder as found by the trial court. There were as many as 12 injuries on the dead body of Achuthan Nair as seen from Ext. P10 post-mortem certificate and the evidence of PW. 8, who conducted autopsy. Injury No. 5 in Ext. P10 is a fatal injury also. The only question for consideration is whether the prosecution evidence is beyond suspicion.
10. The only occurrence witness in this case is PW. 1. Though not a close neighbour, PW. 2 is also residing not far away from the scene of occurrence. It was on hearing the hue and cry from the scene of occurrence that PW. 2 came over there. By the time when he came, the incident was over. He has only seen the deceased lying there and PW. 1 and both the accused standing near him.
11. There is no rule of law which says that the evidence of a solitary witness cannot be the basis of conviction. The Evidence Act does not prescribe that any particular number of witnesses is necessary to prove a fact. Evidence is not being counted, but weighed. But in accepting the evidence of a solitary witness for the purpose of entering conviction ' the courts must always be guided by rule of caution that such evidence will have to be meticulously analysed for the purpose of satisfaction regarding its credibility. When tested in the touch-stone of credibility and acceptability, we do not think the evidence of PWs. 1 and 2 could be treated as above board. PW. 1 is a person who has evidently some reason for complaint against the appellant. He admitted that by destruction of the varamba on the southern side of the residential compound of the appellant, the easy access to himself and the deceased were lost. So also he said that on this account there was some quarrel between the deceased and the appellant. The same passage was necessary for PW. 1 also and it is only a matter for inference that PW. 1 would have entertained the same sort of feeling against the appellant. From the evidence of PW. 2 also it appears that he was not giving a truthful version before court.
12. From Ext. P2 scene mahazar as well as Ext. P4 plan of the scene of occurrence and surroundings prepared by the village assistant, it is seen that the incident took place not exactly at the place alleged by the prosecution but at the place suggested by the defence. The scene of occurrence is point No. 1 in Ext. P4 which is a few metres west of the entrance of the varamba to the foot-path. It is more probable that the incident might have taken place in the scene shown in Ext. P4 only if the defence version of the incident is correct. This fact is more or less probabilised by the evidence of P.W. 1 himself. If Ext. PI first information given by PW. 1 and the evidence given by him in the box are taken into account, he must have been going along! the varamba shown as item No. 2 in Ext. P4 plan along with the deceased. If so they must have gone to the north and then taken a turn to the west through the varamba for entering into the foot-path. In such a case there was absolutely no reason or occasion for them to come to the southern paddy field which is on a level 5 feet lower than the northern footpath. So also if the prosecution case is accepted, there was no occasion for PW., i and the deceased to make an attempt to; enter the foot-path from the paddy field through the revetment on the southern side of the appellant's property. Such an attempt on their part, if proved, will only probabilise the defence version of the incident.
13. In Ext. Dl portion of the statement given by PW. 1 during investigation, he said that the deceased made entry to the footpath through the revetment from the southern paddy field. This statement was denied by him and he attempted to maintain that himself and the deceased never entered the paddy field. Ext. Dl, which was used for contradicting him was proved through the' investigating officer. It is thus evident from his deposition that in the box he has not given a true and correct version of the incident;. This aspect of the matter is of very serious consequence in deciding the right of private defence claimed by the appellant.
14. As we have earlier stated, the I prosecution case is that PW. 1 and the deceased attempted to make their entry to the foot-path through the varamba from the east and found that the entry was blocked by obstruction caused by the appellant and his son by constructing a wall with laterite stones. This obstruction is alleged to have been caused on the date of incident. The further case of the prosecution is that the deceased was only removing the unauthorised obstruction. If there was such an obstruction at that point, even the appellant has no case that the obstruction is authorised. If so the deceased would have been definitely justified in removing the obstruction because as a matter of right he would have been entitled to do so. But the defence case is that no such obstruction was created and that the deceased was only removing laterite stones from the; revetment, constructed by the appellant, for the purpose of easy access to the foot-path from the southern paddy field. If that was what happened, that is an action which the deceased was not entitled to. Being an invasion into the proprietary right of the appellant or his son they would have been definitely entitled to prevent the same. It is in this way that the aspect becomes very much "relevant.
15. Admittedly the bund on the southern - side of the appellant's residential compound running west to east is not there for the past four years prior to the date of incident. That was demolished after Divakara Warrier constructed the basement. The fact that 2 or 3 laterite stones from the revetment has been removed is also clear from the prosecution case itself. Even from the evidence of P.W. 1 it appears that the deceased removed the laterite stones by saying (text in vernacular omitted Ed.). It was at this point of time that the 2nd accused is alleged to have come and obstructed.
16. From Ext.P4 plan and Ext. P2 scene mahazar it is seen that two or three laterite stones were removed only from the revetment. Ext.P4 plan, Ext.P2 scene mahazar and the evidence of PW. 4 shows that there was no new bund put up obstructing the pathway and that the laterite stones removed were old stones from the revetment. This fact only establishes that the defence version of the incident is correct. Ext.Dl version given by PW. 1 during investigation also probabilises this version alone. If so this is a case in which deceased Achuthan Nair removed the laterite stones from the revetment constructed by the appellant. Ext.P2 scene mahazar and the evidence of PW. 9 who prepared the same also show that laterite stones found in the paddy field were those removed only from the revetment on the northern side of the paddy field and south of appellant's property where it joins the foot-path. The bund shown as item No. 2 in Ext.P4 goes north and then turns to the west to join the foot-path. At that point, if we go by Exts. P2 and P4 as well as the evidence of PWs. 4 and 9, there was no new obstruction by the construction of a laterite wall or otherwise. No stone was removed from that place. The stones removed were definitely from an old construction. If so, the removal of laterite stones by the deceased with the words of dis-approval on the action of the accused as spoken to by PW. 1 could only be from the revetment which was admittedly the property of the appellant. Deceased had no right to remove the stones in order to have short-cut entry through that portion to the foot-path from the paddy field. The evidence of PW. 1 that himself and the deceased came by the varamba which is a continuation of item No. 2 in Ext.P4 is thereby falsified. If so, the only conclusion is that PW. 1 was not giving an honest and true version and he was adjusting his evidence to suit the prosecution case in order to avoid the possibility of private defence even at the risk of contradicting his own previous statement during investigation evidenced by Ext. Dl. If actually the 2nd accused or the appellant intervened and prevented the actions of the deceased, they were well within their limits. It is the right of every man to defend his person or property from inroads. In that attempt they can even use force to the extent necessary.
17. In the background of the above facts and circumstances, we will have to consider the evidence of PW. 1 when he said (text in vernacular omitted Ed.). Even though this statement itself is not factually correct, in view of what we have"(Matter in vernacular omitted Ed.)discussed earlier, it is indicative how his mind is working as against the appellant and his son. He himself admitted that the deceased was enimical towards the accused since the path-way that was closed four years back was not opened by them even after request by the deceased. The evidence of this solitary occurrence witness has to be appreciated in this background. His version is that the 2nd accused questioned the authority of the deceased to remove the laterite stones and beat him. Any how he admitted that the deceased retaliated by giving a blow in return. He further admits that the deceased bear the 2nd accused in return and when the 2nd accused attempted to return in the same coin, he prevented and held the 2nd accused. According to his version, 2nd accused was in his grip even when the appellant came and stabbed the deceased. Even though the 2nd accused attempted to get himself released, he was unsuccessful in that attempt as spoken to by PW. 1 himself. It is unsafe to rely on the evidence of PW. 1, at any rate, without corroboration. We have earlier stated that in appropriate cases the evidence of a solitary witness by itself may be sufficient for conviction. But in such cases it is highly necessary that such evidence should be unblemished and beyond all possible criticism. On the evidence of such a witness the court must be satisfied that he was speaking the truth and truth alone on facts as well as circumstances. In such a case there will be no sufficient material for the court to verify the correctness of what the solitary witness says at least on certain matters. That is why it is necessary that the evidence of such a witness must be capable of inspiring cent per cent confidence in the mind of the court. If there is any reasonable ground for suspecting the veracity of such a witness, conviction based on it alone will be unjustified.
18. It is true that PW. 2 is not an occurrence witness. But, if accepted, his evidence is capable of lending some little corroboration to the evidence of PW. 1. He is a person residing more than a furlong away from the scene of occurrence. Admittedly he came to the scene of occurrence only after being alerted by the hue and cry. By the time he came the incident was over and the deceased was lying on the ground. He saw PW, 1 holding the 2nd accused and the appellant standing nearby with the bloodstained weapon. In the ordinary course his evidence would have been sufficient to add corroboration to the testimony of PW. 1. But this witness was also not able to inspire confidence in us. Evidently, he is not a person who is favourably inclined towards the appellant. Against him, the appellant obtained a decree for arrears of rent and revenue recovery proceedings are also pending against him for realisation of amount due to the appellant. He said that he saw the appellant again moving towards the deceased with the weapon for the purpose of attacking him. At that point, he claims to have politely requested the appellant to go away. When that request was not obeyed, he had to command in an angry tone. It was only then that the appellant went away after throwing away M.O. 1. He further said that while going away the appellant reminded him that his notions about old Namboodiris are wrong and will have to be changed. These are evidently new versions introduced by PW. 2 for the first time and they were not at all spoken to by PW. 1 who was all along there. It is needless to say that PW. 2 was also making exaggeration and embellishments.
19. Admittedly, the foot-path, where the incident took place according to the prosecution case, is firm ground where there is no slush. The evidence of PWs. 1 and 2 is also that neither the appellant nor the deceased fell into the paddy field. In the paddy field, there was paddy cultivation at that time. Admittedly, there was mud and water. The defence case is that there was a grappling between the deceased and the appellant as a result of which both of them fell down into the paddy field. The evidence in the case only probabilises the defence version. PW. 1 even went to the extent of saying that there was absolutely no slush on the dead body. But Ext. P10 post-mortem certificate and the evidence of PW. 8, who prepared the same, show that there was a lot of slush on the dead body. If the evidence of PWs. 1 and 2 is accepted the position will be that the prosecution has not in any way explained the presence of slush on the dead body. The presence of slush is evidently indicative of the fact that at least the deceased fell into the paddy field either during the course of incident or at least at its culmination. The only conclusion is that PWs. 1 and 2 were consciously hiding some part of the incident from court. That leads to the further inference that the prosecution has consciously suppressed some material aspects of the incident.
20. PW. 1 claims to have seen the entire incident from beginning to end. If his evidence is accepted, himself, the 2nd accused and the appellant were having torch lights in hand. Both himself and the 2nd accused were not flashing the torches because he was holding the 2nd accused even at that time. At the same time his evidence is to the effect that the appellant was having a lighted five cell torch and it was in the light of this torch that he saw everything from beginning to end. He has no case that the appellant switched off the torch at any time or that at any point of time the incident was not visible to him. He has seen only two stabs being inflicted by the appellant, one before the deceased fell down and the other after the fall. But Ext.P10 and the evidence of PW. 8 show that the deceased had 12 injuries out of which 9 were incised wounds and 3 were abrasions. The medical evidence of PW. 8 is that the incised wounds could only be the result of independent contacts. The Doctor okayed the defence suggestion that these injuries are possible with a weapon like M.O. 1 in the course of a grappling. So also from his evidence it is seen that even though the possibility of the injuries being inflicted by stabs cannot be ruled out, the probability of the fatal injury No. 5 is as a result of thrust. A vain attempt was made by the prosecution to bring out from PW. 1 that unnoticed by him during the interval when the torch was not being flashed the deceased could have sustained injuries at the hands of the appellant. That attempt miserably failed. In an incident like this, it is for the prosecution to establish as to how the deceased sustained all the injuries. When the prosecution and the defence put forward two conflicting versions regarding the incident and when the version of the defence is found to be equally probable, the absence of evidence or explanation on the part of the prosecution regarding all the injuries and the manner in which they were inflicted will have to be taken as fatal. Such failure on the part of the prosecution must be taken as failure in establishing as to how the incident took place. PW. 1 was standing only two feet away from the scene of occurrence all along. Even conceding that the light from the torch was not available during intervals, PW. 1 would definitely have been able to realise that other injuries are also being inflicted by the appellant. He himself admitted that immediately after the incident, he saw several injuries on the body of the deceased. His failure to explain these injuries shows that either he does not know how the incident took place or he is suppressing it from court. It is the duty of the prosecution to place the entire facts truly and correctly before court in an attempt to bring offenders to justice. When the court feels a genuine doubt that the true picture of the incident is not presented before it without hiding anything, the benefit of that doubt is available to the accused not only in relation to the offence, but in relation to the plea of private defence or other exceptions also. Even when there is no defence evidence but from the prosecution evidence itself there is a probability of the accused having acted in self-defence or at least there is basis for a reasonable suspicion in that direction, that is sufficient to entitle the accused to an acquittal.
21. The scene mahazar shows that there was cultivation in the southern paddy field. The defence version is that the deceased and the appellant fell into this paddy field during the course of the grappling. If that version is correct, there would have been destruction to the paddy cultivation and other symptoms to that effect in the paddy field. Unfortunately the investigating officer has not at all mentioned anything about this in Ext. P2 scene mahazar. The defence version is that the deceased was a drunkard who used to carry weapon always. PW. 1 saw him for the first time only when they started together on their way home. He does not know whether the deceased was having a weapon or whether he was drunk. The laboratory examination of the blood of the deceased shows that it contained ethyl alcohol. The Doctor was not able to say whether after consumption of such quantity of alcohol a man would be quarrelsome or not. Anyhow from the evidence of PW. 1 himself it is seen that the deceased used some unhappy words of disapproval against the accused just before making an attempt to remove the laterite stones. The possibility of the deceased being quarrelsome on the further ground that he has consumed alcohol cannot be ruled out under such circumstances.
22. The first information statement was given by PW. 1 only the next day at 9 a.m. He says that the previous night itself the Doctor informed him that intimation will be sent to the police station and he need go and give the information only the next morning. When the Doctor was in the box, he was not reminded of any such suggestion. The defence case is that they were waiting for the arrival of the son of the deceased to shape the first information statement. The son of the deceased is said to be a police constable working at Quilandy. But we do not feel that there is much force in this contention.
23. When the entire evidence and circumstances are taken into account, we do not feel that the prosecution has presented a true picture of the incident before court. The two prosecution witnesses, namely, PWs. 1 and 2 are found to be unreliable. There is every possibility of the incident having taken place under entirely different circumstances. We are not quite sure as to who was the aggressor. It is clear from the evidence that the incident started on account of the attempt made by the deceased to demolish the revetment put up by the appellant and his son. Naturally, they were entitled to resist. The evidence is not sufficient to show as to who brought M.O. 1 weapon. As to who started the attack and under what circumstances the deceased sustained injuries are also matters not established beyond doubt by the prosecution. Without establishing these facts, we are not in a position to find the appellant guilty of having committed an offence punishable under Section 302 of the Indian Penal Code. We are of opinion that the learned Sessions Judge has not properly considered these facts and circumstances in order to decide the guilt or innocence of the appellant. Not only in relation to the commission of offence but also in relation to the plea of private defence, these are aspects on which the prosecution ought to have satisfied the conscience of the court by acceptable evidence. Under such circumstances, the defence version as to how the incident took place cannot be ruled out by the prosecution evidence. In respect of the plea of private defence also the appellant is entitled to the benefit of the reasonable doubt created in our minds on account of the above circumstances. Therefore in disagreement with the conclusions of the learned Sessions Judge, we find that the prosecution was not able to prove beyond doubt that the appellant is guilty of having committed an offence punishable under Section 302 of the Penal Code. Therefore, we set aside the conviction and find the appellant not guilty.
The result is that we allow the appeal and set aside the conviction against the appellant for the offence punishable under S, 302 of the IPC and the consequent sentence of imprisonment for life. The appellant is found not guilty and acquitted. He is set at liberty forthwith, if not wanted in any other case.