Kerala High Court
Georgekutty vs Sreekumar on 17 March, 2020
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 17TH DAY OF MARCH, 2020/27TH PHALGUNA, 1941
CRL.A.No.1213 OF 2015
[AGAINST THE JUDGMENT IN SC 1519/2010 DATED 12-08-2015 OF DISTRICT
COURT & SESSIONS COURT,KOLLAM]
APPELLANT:
GEORGEKUTTY
S/O. OOMMEN, KAPPIL VEETIL, KOLLAKAVADAKKUMTHALA
VILLAGE, KARUNAGAPPALLY TALUK
BY ADVS.
SRI.ENOCH DAVID SIMON JOEL
SRI.GEORGE A.CHERIAN
SRI.RONY JOSE
SRI.S.SREEDEV
SRI.LEO LUKOSE
SMT.SUZANNE KURIAN
SHRI.AMAL AMIR ALI
RESPONDENTS:
1 SREEKUMAR
S/O. DIVAKARAN, SIVASAILAM,KOLLAKAMURI,
VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY,
KOLLAM DISTRICT
2 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM (THROUGH THE CIRCLE
INSPECTOR OF POLICE, CHAVARA POLICE STATION)
R1 BY ADV. SRI.K.SIJU
R1 BY ADV. SMT.S.SEETHA
R2 BY SR.PUBLIC PROSECUTOR SRI.S.U.NAZAR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24-02-2020, THE COURT ON 17-03-2020 DELIVERED THE
FOLLOWING:
Crl.A.No.1213 of 2015
:-2-:
JUDGMENT
N.ANIL KUMAR,J:
This is an appeal preferred by PW2, an injured witness, against the order of acquittal of the sole accused in S.C.No.1519/2010 on the file of the Court of Additional Sessions Judge-IV, Kollam. By judgment dated 12.8.2015, the learned IVth Additional Sessions Judge, Kollam found the accused not guilty for the offences punishable under Sections 302 and 307 of the Indian Penal Code and accordingly, the accused was acquitted. The State has not preferred any appeal challenging the judgment.
2. The prosecution case in brief is as hereunder:-
On 23.3.2008 at 7.30 p.m. deceased John Ommen @ Roy along with PWs.1 and 2 and DW1 Mohanan Pillai were standing near to Kollaka Branch Post Office at C.N.Junction in Vadakkumthala Village. While so, the accused suddenly came there in his motor bike bearing Regn.No.KL2Y-9605 through Kollakakadavu- Padanairkave road from north to south. On seeing the deceased and others, the accused had paused and parked his motor cycle near to Kochuvila house and came near to the place wherein the deceased and others had been standing. At that time, the accused was attempting to light a cigarette using a cigarette lighter. On seeing this, PW1 demanded the cigarette Crl.A.No.1213 of 2015 :-3-:
lighter, but the accused was reluctant to give. PW2, who is none other than the brother of the deceased, did not like the conduct of the accused. He questioned it. It remitted in a scuffle among PW1,PW2,the deceased and the accused. During the scuffle, PW2's dhothi (a cloth worn by the witness round the waist) fell down. While so, the deceased slapped the cheeks of the accused. Feeling agitated by the conduct of the deceased, the accused proceeded to the motorbike and had taken a pen knife from the tool box of his motor bike. Thereafter, the accused came back and stabbed on the left chest of the deceased with an intention to commit murder. When PW2 attempted to prevent the deceased from falling down, the accused stabbed him also on the left side of his abdomen and also on the dorsal aspect of left forearm resulting in serious injuries. PW1 and DW1 tried to intercept the act of the accused. However, the accused criminally intimidated them by waving the knife. Although the deceased and PW2 were taken to the A.M.Hospital, Karunagappally, the victim (deceased) succumbed to the injuries.
3. PW14, the then Sub Inspector of Police, Chavara Police Station recorded Ext.P1 statement of PW1 and registered Ext.P1(a) FIR for the offences punishable under Sections 302,307 Crl.A.No.1213 of 2015 :-4-:
and 506(ii) of IPC on 23.3.2008 at 12.30 am (00.30 hrs on 24.3.2008). According to him, on 23.3.2008, at 8 pm while he was on duty in connection with the festival of Kottamkulangara Devi Temple (a Hindu Temple of the Goddess Durga Bhagavathi located in the village of Chavara in Kollam District), he had received the reliable information regarding this case. On receiving the information, he proceeded to the scene of occurrence along with the Police party. On being satisfied that the information received was true to the facts, he had arranged scene guard duty. Thereafter, he had again returned for duty in connection with the temple festival. PW14 testified in cross-
examination that he received the information regarding the occurrence before recording Ext.P1 FIS. He further testified that he did not record the information received in the General Diary of the Police Station before proceeding to the occurrence place for verification. According to him, he had conducted an inquiry regarding the competency of the person to give First Information Statement pertaining to the occurrence. Later, he had understood that PW1 was the most competent person to give such a statement. Accordingly, his statement was recorded.
4. PW17 was working as Circle Inspector of Police on Crl.A.No.1213 of 2015 :-5-:
24.3.2008 at Chavara Police Station. He had taken over the investigation in this case on 24.3.2008 itself. He proceeded to the District Hospital, Kollam and had conducted inquest on the body of the deceased in the presence of witnesses. Accordingly, Ext.P2 inquest report was prepared. During the inquest, he seized MO3 kyli and MO4 underwear from the body of the deceased. In Ext.P2 inquest report, column.No.11 is pertaining to the apparent cause of death. It is clearly stated in column No.11 that the victim (deceased) died on account of stab injury inflicted with a pen knife. On going through column No.9 in Ext.P2, it is clear that the accused inflicted stab injury on the deceased on the date of occurrence.
5. On 24.3.2008, at 2 pm, PW17 visited the scene of occurrence along with PW1, who lodged Ext.P1 FIS and prepared Ext.P3 scene mahazar, in which PW6 is a signatory. According to PW17, PW9 Scientific Assistant (Biology) inspected the scene of occurrence and collected MO8 series - blood stained sand from the spot. In addition to the above, mobile phone stained with dirt and blood, wrist watch, shirt, parker pen, purse, cigarette lighter, one cigarette packet with one cigarette, three buttons and one cloth piece were collected from the spot, which were marked as Crl.A.No.1213 of 2015 :-6-:
MOs.9 to 17 respectively during the trial.
6. On 4.4.2008 at 11.45 a.m., PW17 arrested the accused from the High School Junction at Kollam in accordance with law by Ext.P16 series. While in police custody, the accused confessed by way of Ext.P5(a) that MO1 knife was kept underneath the staircase of the building situated in front of the house of his sister Sreelatha. In accordance with Ext.P5 confession statement and as led by the accused, PW17 proceeded to the place where MO1 was kept and recovered MO1 as identified by the accused by Ext.P6 seizure mahazar. PW17 questioned the witnesses, recorded their statement, completed investigation and filed the final report before the court for the offences punishable under Sections 302 and 307 of IPC against the accused.
7. The learned Judicial First Class Magistrate numbered the final report as C.P.No.317/2009 and after complying with the usual formalities, the case was committed to the Sessions Court, Kollam. The learned Sessions Judge took cognizance of the offences punishable under Sections 302 and 307 of IPC against the accused and numbered the case as S.C.No.1519/2010. Later, the case was made over to the Court of Additional Sessions Judge-IV, Kollam for trial and disposal. Crl.A.No.1213 of 2015
:-7-:
8. The learned Additional Sessions Judge, after having heard both sides, framed charge against the accused for the offences punishable under Sections 302 and 307 of IPC on 20.6.2014. The charge was read over to the accused to which he pleaded not guilty.
9. During the course of trial, the prosecution examined PWs.1 to 17 and marked Exts.P1 to P21 and MOs.1 to 17 on the side of the prosecution. Exts.D1 to D4 contradictions were marked by the defence when PWs.1,2,4 and 16 were cross- examined. Ext.X1 was proved through PW8. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of Cr.P.C. His defence is one of total denial. He filed a separate statement contending that the deceased attempted to murder him. According to him, he had sustained injuries in the very same occurrence. He further stated that although he made a request to the Police for medical aid, the Police did not extend medical aid to him for the reason that such a course would spoil the prosecution case against him. He further stated that when he was produced before the learned Magistrate, he had complained to the court that he had sustained injuries in the very same occurrence. His definite case is that on the date of occurrence, the Crl.A.No.1213 of 2015 :-8-:
deceased and PW2 got drunk and quarrelled with him unnecessarily and thereby ensued a scuffle between the parties during which PW2 and the deceased grappled him. While he was grappling on the ground, the deceased caught hold of his testicles and squeezed them. He also stated that PW2 assaulted him with an iron rod. When he was arrested and produced before the learned Magistrate, as per his request, the learned Magistrate directed the jail authorities to provide necessary medical aid to him. Accordingly, he was brought before the District Hospital, Kollam for medical aid and the Doctor, who attended him, issued Ext.D4 Wound Certificate noting the injuries on him.
10. The learned trial Judge did not deem it fit and proper to acquit the accused under Section 232 of Cr.P.C. Hence the accused was called upon to enter on his defence. DW1 was examined on his side.
11. After the trial, the learned Sessions Judge acquitted the accused for the offences punishable under Sections 302 and 307 of IPC mainly on the following findings:-
i. The deceased is the younger brother of PW2.
ii. In the very same occurrence, the deceased PW2 and the accused sustained injuries.Crl.A.No.1213 of 2015
:-9-:
iii. Admittedly, DW1 was present at the time of occurrence as per the prosecution case. He was cited as a witness. However, he was given up by the prosecution. Later, he was examined by the defense as DW1. DW1 adduced evidence inconsistent with the prosecution.
iv. The injury sustained by the accused was not explained by the prosecution.
v. PW16, the Doctor, who had examined the accused, produced Ext.P12 case records in connection with the treatment administered to the accused consequent to the order of the learned Magistrate when he was produced before the court immediately after the arrest.
vi. No case was registered against the assailants although Ext.P2 case records would reveal that the accused had also sustained injuries in the very same occurrence. vii. The accused had no intention to commit murder of the deceased or attempt to commit murder of PW2 at the inception. He was unarmed and standing at the occurrence place along with PWs.1 and 2 and DW1.
viii. There was a scuffle between the accused and PW2 and while so, the accused had lost his dhothi. PWs.1 and 2 came Crl.A.No.1213 of 2015 :-10-:
to the spot and picked up quarrel with the accused for no reason.
ix. The accused had inflicted only one injury to the deceased in exercise of his private defense.
x. Although the accused sustained injuries in the very same occurrence, PW17, who arrested the accused on 4.4.2008, failed to note the injury sustained by the accused in Ext.P16 inspection memo.
xi. Ext.P1 cannot be considered as first information statement as claimed by the prosecution. PW14 rushed to the place of occurrence and verified the facts without recording the information received by him in the General Diary. PW14 waited for four hours to record the F.I.statement of PW1. xii. There is nothing on record to show that PW1 either accompanied PW2 at A.M.Hospital, Karunagappally or Medical College Hospital, Thiruvananthapuram. xiii. The deceased and PW2 were under the influence of alcohol at the time of occurrence.
xiv. Signatures of the attesting witnesses in Exts.P5 and P6 recovery mahazars were apparently different. Crl.A.No.1213 of 2015
:-11-:
12. PW2 being the injured as envisaged under Section 2(wa) of the Cr.P.C. filed this Criminal Appeal under the proviso(1) to Section 372 of the Cr.P.C.
13. Heard Sri.Leo Lukose, the learned counsel for the appellant, Sri.K.Siju, the learned counsel for the first respondent and Sri.S.U.Nazar, the learned Senior Public Prosecutor appearing for the second respondent.
14. Challenging the appreciation of evidence recorded by the learned trial judge, the learned counsel for the appellant contended that the trial court erred in granting the right of private defense to the accused without even considering as to who the aggressor was. Relying on the evidence of PWs.1 to 4, it has been contended that after the altercation regarding the cigarette lighter and the consequent slapping of the deceased, the accused walked a little distance to reach his motor bike and thereafter, opened his tool box, took out a knife, walked back to the place where the deceased was standing, caught hold of his shirt, dragged him and then stabbed on the left chest. According to the learned counsel for the appellant, in the aforementioned circumstances, right of private defense will never be attracted. Added to this, according to the learned counsel for the appellant, while the deceased, after Crl.A.No.1213 of 2015 :-12-:
the injury, was grappling on the ground, PW2 went to his help and tried to hold the deceased at which point of time, the accused stabbed PW2 twice. Elaborating on the submission, the learned counsel for the appellant contended that while taking of the plea of private defense, the accused was obliged to prove that he had a reasonable cause of apprehension of death or grievous hurt for the purpose of being entitled to act in defense. It is the definite case of the appellant that the accused had no cause to apprehend any danger and in such circumstances, the finding of the court below upholding the right of private defense is palpably wrong.
15. With reference to the injuries sustained by the accused, the learned counsel for the appellant contended that the date of occurrence was on 23.3.2008 and the accused was arrested only on 5.4.2008. Immediately after the occurrence, according to the learned counsel for the appellant, the accused had absconded and he was arrested after a period of 13 days from the date of occurrence. The accused had not chosen to make any complaint prior to 5.4.2008 touching the injuries sustained to him. Therefore, the learned counsel for the appellant contended that the trial court went wrong in coming to the conclusion that the injuries sustained by the accused were not explained away by Crl.A.No.1213 of 2015 :-13-:
the prosecution.
16. According to the learned counsel for the appellant, the court below heavily relied on the evidence of DW1 and disbelieved the prosecution case. Referring to the evidence adduced by DW1, the learned counsel for the appellant submitted that DW1 was initially cited as a prosecution witness, however, Dw1 had been given up by the prosecution. The sum and substance of the contention is that it was within the realm of the prosecution to give up a witness.
17. The learned counsel for the first respondent/ accused contended that an appeal against acquittal seeking to set aside the judgment of the trial court, the High Court does not, in the absence of perversity, upset the findings of fact arrived at by the trial court. With reference to the finding of the trial court, learned counsel for the accused submitted that it is not for the appellate court to re-analyse and reinterpret the evidence on record in a case where the trial court has come to a probable conclusion. Over and above the conclusions arrived at by the trial court, the learned counsel for the accused continued with his submission stating that the width and length of the injuries sustained to the deceased do not tally with the MO1 knife Crl.A.No.1213 of 2015 :-14-:
recovered by the Police. Recovery of MO1 was effected at the instance of the accused. However, no blood was located in MO1. The learned counsel for the accused has also submitted that PW2 and the deceased were brothers. With regard to Exts.P9 and P11 certificates issued by the Doctor, noting the injuries sustained to PW2, the learned counsel for the accused submitted that the entire columns therein were not filled up properly. The treatment certificate was issued after one year from the date of treatment. The learned counsel for the accused further submitted that having drunk too much of alcohol, PW2 and the deceased assaulted the accused for no reason. It was further submitted that MO2 T-shirt of PW2 was produced. According to the prosecution, PWs.1 and 2 were wearing T-shirts at the time of occurrence. One T- shirt(MO2) was produced with a cut therein. However, the same did not contain any blood stain though PW2 and deceased sustained injuries in the occurrence. It was further contended that the parties were at loggerheads in connection with previous cases between the parties. In conclusion, the learned counsel for the accused submitted that the decision of the trial court is not perverse and this Court should not disturb the finding of an acquittal if two conclusions are possible on the record of the case. Crl.A.No.1213 of 2015
:-15-:
18. Learned Senior Public Prosecutor Sri.S.U.Nazar submitted that the State has not filed any appeal challenging the acquittal of the accused in the above case. However, the learned Public Prosecutor submitted that the trial court failed to consider the definite plea of private defense in the correct legal perspective.
According to the learned Public Prosecutor, the extent of right of private defense is that the force used must bear a reasonable proportion of the injury to be averted. In other words, the injury inflicted on the assailant must not be greater than necessary for the protection of the person assaulted.
19. The factual scenario emerging from the evidence let in by PW1 would show that on 23.3.2008 at 7.30 pm at C.N.Junction, at Kollaka Muri, PW1 came to the shop of one Mohanan Pillai for purchasing grocery items and while so, PW1, DW1, the deceased and PW2 were talking near to the Post Office Junction. The incident in this case took place on the arrival of the accused in his bike bearing Regn.No. KL-02Y/9605. He parked his motor bike and proceeded towards them with a packet of cigarette. Thereafter, he lighted a cigarette with a cigarette lighter. PW1 demanded him to share the cigarette lighter, which was turned down by the accused. On seeing this, PW2 directed Crl.A.No.1213 of 2015 :-16-:
him to hand over the cigarette lighter. PW1 would testify that at that time, the accused abused him by rebuking his father. Feeling agitated, PW2 proceeded to the accused and pushed him down. While so, the deceased slapped the cheek of the accused. According to PW1, immediately thereafter, the accused proceeded to the place where his bike was parked, opened the tool box and took a pen knife. He returned to the place where the accused stood and stabbed on the left chest of the deceased with MO1 knife. According to PW1, when the deceased was about to collapse, PW2 physically supported the deceased and while so, the accused stabbed on the left abdomen of PW2 also. Again, the accused inflicted stab injury on the left hand of PW2. PW1 made an attempt to rescue them and while so, the dhoti of the accused fell down. PW1 further stated that DW2 Mohanan Pillai covered the injury of the deceased using the dhoti of the deceased. Thereafter, according to PW1, the deceased and PW2 were taken to A.M.Hospital in an autorickshaw. On examination, the Doctor declared that the victim succumbed to the injuries and PW2 was referred to the Medical College Hospital, Thiruvananthapuram. Later PW1 returned to the Chavara Police Station and lodged Ext.P1 FIS before PW14.Crl.A.No.1213 of 2015
:-17-:
20. PW2 is an injured witness in this case. He is none other than the younger brother of the deceased. He supported the evidence let in by PW1.
21. PW3 is an eye witness cited by the prosecution to prove the occurrence. He went to the junction referred to above to meet PW4. PW4 stated that he went to PW3's house initially and on being learnt that PW3 was at C.N.Junction, he proceeded to the said place to meet PW3. PWs.3 and 4 supported the prosecution case in full.
22. PWs.5 to 8 are mahazar witnesses. PW8 who was an attester to Exts.P5 and P6 mahazars stated that on 4.4.2008 at about 1.30 pm, he saw the accused taking MO1 knife kept underneath the staircase of S.S. Traders and handing over to the Police. He identified MO1 before court. He further stated that on 4.4.2008 at about 2.15 pm, the accused had entrusted MO5 shirt and MO6 dhothi to the police by taking it from his sister's house. On cross-examination, he admitted that both his signatures in Exts.P5 and P6 are different. He had admitted his signature contained in Ext.X1 summons issued to him from the court.
23. PW10 examined material objects collected by PW9 from the scene of occurrence. On examination, ethyl alcohol was Crl.A.No.1213 of 2015 :-18-:
detected in the stomach, liver, kidney and blood of the deceased. Ext.P7 would indicate that the deceased had consumed alcohol at the time of occurrence.
24. It is clear from the evidence of PW12, who was working as Casualty Medical Officer at Medical College Hospital, Thiruvananthapuram on 23.3.2008, that he had examined PW2 as a referred case from A.M.Hospital, Karunagappally and issued Ext.P9 treatment certificate. PW2 was treated as an inpatient and discharged from the hospital on 31.3.2008. Ext.P11 Accident Register-cum-Wound Certificate issued by Dr.T. Premachandran of the A.M.Hospital, Karunagappally would show that on 23.3.2008 at 7.55 pm, PW2 was examined. Since Dr.T.Premachandran was not available, PW15, who was conversant with the signature of Dr.T.Premachandran, was examined before court. Ext.P11 wound certificate would show that PW2 sustained the following injuries:-
1. Laceration 5x1.5cm dorsal aspect of left forearm.
2. Penetrating wound peritoneum.
3. Visceral injury left fourth rib.
25. PW11, the Professor of Forensic Medicine, Medical College, Thiruvananthapuram conducted autopsy on the body of Crl.A.No.1213 of 2015 :-19-:
the deceased on 24.3.2008 and prepared Ext.P8 postmortem certificate. The details of ante mortem injuries sustained to the deceased are narrated in paragraph 10 of the impugned judgment. When examined before court, PW11 stated that the victim died due to the penetrating injury (injury No.1 in Ext.P8) sustained to the deceased. We think it is appropriate to narrate injury No.1 as follows:-
"1. Incised penetrating wound 1.9x1cm., oblique, on the front of left side of chest, its upper outer end being rounded and lower inner sharply cut end being 9cm to the left of midline and 18cm below collar bone with a small side cut 0.3x0.1cm at its inner edge 0.3cm above the lower sharp end. The wound penetrated the left chest cavity through the III intercostal space and cutting the upper part of IV rib (3.2x1.5cm) (4.5cm outer to midline), pierced the pericardium (1.5x0.5cm) and terminated by transfixing the pulmonary trunk (wound of entrance being 2x0.2cm, 0.5cm overlying the valve ring and wound of exit being 2x0.2cm, 1.5cm above valve ring). The wound was directed upwards backwards and to the right for a total minimum depth of 4.1cm. The left chest cavity contained 700gm of blood clot and 650ml of fluid blood and the pericardial cavity contained 150gm of blood clot and 50 ml of fluid blood.
Left lung collapsed and heart was in a contracted state."
26. PW11 finally opined that injury No.1 is a fatal injury and is sufficient in the ordinary course of nature to cause death. Indisputably, the victim suffered a homicidal death.
27. It is a fact that PW2 and deceased sustained injuries in the very same occurrence. DW1 Mohanan Pillai was arrayed as witness for the prosecution to prove the occurrence. Crl.A.No.1213 of 2015
:-20-:
The trial court issued summons to him as a prosecution witness. He was present before the trial court as per the summons. However, he was not examined by the prosecution. His examination was dispensed with. Hence, the accused examined DW1 as a defence witness. He stated that he was present at the occurrence place. According to him, the occurrence took place as a result of a scuffle between the parties. The evidence let in by PWs.1,2,3 and DW1 are sufficient to prove the first part of the occurrence. These witnesses adduced evidence to show that on account of the conduct of PW1,PW2 and deceased, the accused proceeded to the place where his bike was parked and immediately, returned with MO1 from his bike and inflicted injuries to the deceased and PW2. Ext.P1 FIS is self-explanatory to show that after receiving a slap from the deceased, the accused became agitated and went towards the bike, took MO1 knife and came back to assault the deceased. However, DW1 would say that as a result of the scuffle, the deceased attempted to inflict stab injury on the accused with MO1 knife. According to him, during the course of the scuffle, all had grappled on the ground and the deceased somehow sustained injuries. He added that one Thomaskutty had beaten on the abdomen of the accused with an Crl.A.No.1213 of 2015 :-21-:
iron stick. He also testified that PW2 made an attempt to stab the accused using a sharp-edged iron rod and in order to escape from the attack, the accused wielded off the knife in which PW2 sustained injury. On going through the evidence of DW1, it is clear that he had no knowledge as to how deceased sustained injuries in the very same occurrence.
28. We have perused the oral evidence let in by DW1 in detail. It is difficult to believe the version of DW1 in full. However, it is brought out that during the second part of the occurrence, there was a scuffle between the parties. PW16 is the Doctor, who had examined the accused and issued Ext.P12 case record. PW16 was working as Consultant in surgery at the District Hospital, Kollam on 5.4.2008. On that day, he had examined the accused, who was brought from the District Jail, Kollam as per the direction issued by the learned Judicial First Class Magistrate Court, Karunagapally. When the accused was arrested and produced before the learned Magistrate, the accused had set up a contention that he had sustained injuries in the very same occurrence. Hence, as directed by the learned Magistrate, the accused was brought before PW16 for examination. PW16 testified that as per the treatment summary, the accused was Crl.A.No.1213 of 2015 :-22-:
suffering from cystitis. According to him, in most cases, the cause of cystitis is a urinary bladder inflammation. In addition to the above, PW16 noted multiple healing abrasions on the right side of the chest. He specifically stated that though the Casualty Medical Officer has recorded that there was no external visible injuries during medical examination, he had noted the injuries. On a specific question put to the witness, PW16 opined that if a person's testicle is forcibly squeezed, there is chance of loss of consciousness and pain warranting emergency treatment. It is clear from Ext.P12 that the accused was admitted on 5.4.2008 and discharged on 8.4.2008. Ext.D4 wound certificate would show that the accused sustained the following injuries:-
1. Contusion mark of abrasion measuring 8x0.5cm
2. Pain inflammation over testicles.
3. Pain on left cheek In Ext.D4, the details of injuries are clearly stated. The alleged cause of injury recorded in Ext.D4 is stamping of the lower abdomen and squeezing the testicles on 23.3.2008 at 7.30pm on account of the assault by Roy, Shaji, Thomas and Shibu. Going by Ext.D4 Accident Register-cum-Wound Certificate and Ext.P12 treatment certificate issued by PW16, it is evident that the accused Crl.A.No.1213 of 2015 :-23-:
sustained injuries in the very same occurrence. It is a fact that he had absconded immediately after the incident. He was arrested on 4.4.2008 at 11.45 am. After recording his arrest, he was produced before the learned Magistrate on 5.4.2008. The fact that PW2's brother had sustained injuries and succumbed to the injuries might have compelled the accused to be away from the scene of occurrence. However, the fact that he had sustained injuries in the very same occurrence is true to facts. When PW17 was cross-examined before court, he admitted that PW2 caught hold of the dhothi worn by the accused and pushed him backwards and while so, the dhothi of the accused had fallen down. He further admitted that the deceased had slapped the cheek of the accused. According to him, this incident, being a trivial matter, no steps were taken to initiate prosecution against the assailants. From the evidence of PW17, it was disclosed that the accused had also sustained injuries in the very same occurrence. In Ext.P16 inspection memo prepared at the time of arrest, PW17 failed to note the injuries sustained to the accused, though a specific column has been provided for the said purpose. In the final report submitted, the Doctor, who had examined the accused during judicial custody, was not cited as a witness. Since Crl.A.No.1213 of 2015 :-24-:
the accused had set up a defense that he had sustained injuries in the very same occurrence, by way of abundant caution,the learned Public Prosecutor filed an additional witness list to examine CWs.35 to 37. Of the above, CW35 and 36 were examined as PW15 and PW16 respectively. When PW16 was examined, it was brought out that the accused also sustained injuries in the very same occurrence. The accused contended that during the very same occurrence, he was assaulted with an iron rod and thereby, he had sustained a contusion mark measuring 8x0.5 cms.
29. There is no case for the prosecution that the accused came to the place of occurrence with an intention to murder the victim (deceased). The accused came to the place of occurrence in his motor bike and on seeing the deceased and his friends, he had paused and parked his motorbike and came towards them. He was totally unarmed then. Consequent to the altercation between them, he became agitated, went towards the motorbike, opened the toolbox, took his pen knife and came back to assault the victim. On a perusal of postmortem report, it is clear that only one injury was inflicted with a knife on the body of the deceased. Under the circumstances, it is difficult to believe that the accused came to the spot with an intention to inflict Crl.A.No.1213 of 2015 :-25-:
bodily injury to the deceased and PW2. Something was said in the course of a conversation between the accused, deceased,PW1 and PW2 which led to a sudden quarrel and that led to a sudden fight. There was no premeditation. Even as per the case of the prosecution, the fight was sudden and it had been the result of a sudden quarrel. In the course of the sudden fight, the accused had also sustained some injuries. Hence the accused, in heat of passion, took out a knife from the bike, parked nearby and assaulted the victim and PW2.
30. Before us, the learned counsel for the appellant contended that even if the offence under Section 302 IPC is not made out, this is a case where the provision of the first part of Section 304 IPC can be pressed into service. Relying on the decisions reported in Rafique v. State of Maharashra (1979 KHC
773) and Bahadur Singh and another v. State of Punjab (1992 KHC 943), the learned counsel for the appellant contended that during the quarrel between the parties, the accused assaulted the deceased and PW2 and inflicted injuries on her with MO1. Admittedly,injuries were present on the body of the deceased and PW2. PW17 recovered MO1 knife from the possession of the accused in accordance with Section 27 of the Evidence Act. It is Crl.A.No.1213 of 2015 :-26-:
difficult for us to ascertain as to whether the injuries were inflicted by the accused on the deceased and PW2 before or after the accused sustained injuries. There is no evidence in this case to hold that at what point of time the accused had sustained injuries in the very same occurrence. The accused had set up a case that the deceased and PW2 assaulted and squeezed his testicles and thereby, he had sustained severe pain on his body. The learned counsel for the appellant urged before us that even if the accused had sustained some minor injuries in the very same occurrence, it is clear from the evidence let in by PWs.1 to 3 that the accused stabbed the deceased and PW2 with MO1 knife and the accused had exceeded his right of private defense. According to the learned counsel for the appellant, injury on the deceased was very serious and therefore, the accused had clearly exceeded the right of private defense.
31. It is contended by the learned counsel for the accused that the accused is innocent in this case and prosecution version is false. As the accused had also sustained injuries in the very same occurrence, it is argued that the trial court was obliged to ascertain the real aggressor in this case, which was rightly done by the trial court based on the evidence on record. PW.17 in his Crl.A.No.1213 of 2015 :-27-:
evidence admitted that the accused had also sustained injuries in the very same occurrence.
32. Even though the accused squarely raised the plea of self-defense and had cross-examined the witnesses making suggestions of the version of the accused and how the fatal injury was caused to the accused, the prosecution failed to adduce evidence to prove the actual occurrence before court. When the plea of self-defense is taken, it is the duty of the prosecution to establish its case beyond reasonable shadow of doubt. If the evidence collected during investigation shows possibility of a plea of private defense, the investigating officer is legally obliged to submit all the materials before the court. The object of investigation is only to find out the truth.
33. On a perusal of the oral evidence let in by PW17, it is clear that the investigating agency failed to collect all available materials in relation to the commission of crime and the circumstances before court. In the case at hand, PW17 collected materials favourable to the prosecution and produced them before the court.
34. It is true that under Section 105 of the Evidence Act, the burden is on the accused to prove the existence of Crl.A.No.1213 of 2015 :-28-:
circumstances bringing the case under Section 100 of the IPC. However, the accused is entitled to claim the benefit of every reasonable doubt, when the accused offers a reasonable excuse on his conduct even though he cannot prove his assertion of self- defense. The learned counsel for the accused contended that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. According to the learned counsel for the accused, non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance.
35. On going through Ext.P12 and Ext.D4, it is clear that the accused also sustained injuries. In Lakshmi Singh and Others v. State of Bihar [(1976)4 SCC 394], Amarjit Singh v. State of Haryana [(2009)16 SCC 649], State of U.P. v. Gajey Singh and another [JT 2009 (3) SC 1], the Apex Court held that the non-explanation of the injuries sustained by the accused at the time of occurrence or in the course of altercation, is a very important circumstance from which the court can draw the following inferences:-
Crl.A.No.1213 of 2015
:-29-:
i. That the prosecution has suppressed the genesis and origin of occurrence and has thus not presented the true version. ii. That the witnesses, who have denied the presence of the injuries on the person of the accused, are lying on a most material point and therefore, their evidence is unreliable. iii. That in a case there is defense version, which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case.
36. Before we proceed further, it may be relevant to point out that the injury sustained to the accused in the very same occurrence has not been stated by PWs.1 to 4 when they were examined before court. Right from the very beginning, the accused had contended that PWs.1 and 2 and the deceased caused pain on his testicles and also inflicted injuries on him with an iron rod. It is clear from Ext.D4 that the accused had sustained severe contusion and pain on his body. The learned Sessions Judge in several portions of her judgment had disbelieved the prosecution case for the reason that the prosecution had failed to adduce reliable evidence to prove the prosecution case and that the prosecution had suppressed the genesis of the occurrence. Even Crl.A.No.1213 of 2015 :-30-:
though the accused squarely raised the plea of self-defense making suggestions about the version of the accused, no plausible explanation was offered by the prosecution, except the fact that the injuries sustained to the accused were minor and superficial.
37. Regarding the entire facts of the case as has been observed earlier, the prosecution has not given a true picture of the occurrence. Unless and until positive evidence was adduced to show that the accused in this case was the aggressor, it may not be possible for us to arrive at a probable conclusion that the accused was really the aggressor. When the plea of self defense is taken, it is the duty of the prosecution to place all the facts before this Court. According to the accused, the occurrence took place in a different manner. One of the contentions taken by the accused is that there was a scuffle between the parties and as a result of the scuffle, the accused fell down on the ground and while so, the deceased caught hold of the testicles of the accused and squeezed them. It is his defense that he was provoked and became agitated. Hence he had gone towards the motor bike, took a small pen knife, which he had kept in his tool box, returned back and stabbed the deceased. Though initially the accused denied that he stabbed the deceased, his contentions would inter alia reveal that Crl.A.No.1213 of 2015 :-31-:
it was he, who inflicted the stab injury on the deceased and PW2. The question to be decided is which of the version is true when viewed in the light of evidence and probabilities. In a decision reported in Souri Antony v. State of Kerala [1960 KLT 362], a Division Bench of this Court explained the nature of evidence to be adduced when the accused put forward a plea of private defense in paragraph 8 of the judgment as follows:-
"8. In a case where the accused does not deny the act but puts forward the definite plea of private defence there should be reliable and unimpeachable evidence of the circumstances under which the incident took place. It is the duty of the prosecution not to suppress any facts favourable to the accused and not to indulge in embellishments and additions with a view to depriving the accused of his right of private defence, and it is the paramount duty of the court to sift and scan the evidence carefully with a view to finding out the circumstances under which the accused had to use the weapon. In such a case the brief statements made by the deceased without specifying the circumstances in which the incident took place and the evidence of witnesses who seem to have made decided attempts to give a distorted version of the incident with a view to making out that the accused was in the aggressive, cannot be safely be acted upon by the court. On an anxious consideration of the evidence and probabilities of the case, we feel that the prosecution has not placed before us a true picture of the incident and that the accused's version appears to be more reasonable and probable." Crl.A.No.1213 of 2015
:-32-:
In the very same judgment (supra), the Division Bench held in paragraph 11 of the judgment as follows:-
"11. The fact that Pw. 1 and the deceased were not armed with dangerous weapons is no ground to find that the accused could not have apprehended death or grievous hurt. Death or grievous hurt can well be caused without the aid of dangerous weapons. The dangerous situation in which the accused person is placed and not the use of dangerous weapons is the deciding factor......."
38. It is settled principle of law that when the plea of self-defense is taken, it is the duty of the prosecution to establish its case beyond reasonable doubt. It is true that under Section 105 of the Evidence Act, the burden is on the accused. However,the accused is entitled to claim the benefit of every reasonable doubt when the accused offers reasonable excuse on his conduct, even though he cannot prove his assertion of self- defense. Thus, we are unable to agree with the proposition that since the accused failed to discharge his burden and the deceased and PW1 sustained grave injuries, the accused was the real aggressor in this case. On going through the evidence let in by PW17, it is brought out that no investigation was conducted touching the injuries sustained to the accused. No explanation Crl.A.No.1213 of 2015 :-33-:
was offered. Finding that non-examination of PW16 might cut the root of the prosecution case, though PW16 was not cited as a prosecution witness to prove the prosecution case, the learned Public Prosecutor filed an application to examine him as a witness for the prosecution. It was brought from the evidence of PW16 and Ext.P12 that the accused was suffering from cystitis on the date of occurrence. Under the circumstances, the contention that the accused had sustained severe pain as a result of the overt act on the part of the deceased and PW2 in the very same occurrence, cannot be ruled out. We are of the further view that when the prosecution has not come forward with a true version, but has suppressed material and integral portion of the occurrence, giving rise to a plausible plea of self-defense, the accused is entitled to get a benefit of doubt.
39. Evidence tendered by PW1 would show that he accompanied the deceased and PW2 to the A.M.Hospital at Karunagappally for treatment. On examination, the Doctor, who attended the deceased declared him as brought dead and PW2 was referred to the Medical College Hospital, Thiruvananthapuram. His case is that he accompanied PW2 to the Medical College Hospital and came back 0n 24.3.2008. Crl.A.No.1213 of 2015
:-34-:
Thereafter, PW14 recorded Ext.P1 statement and registered the case. The occurrence in this case was on 23.3.2008 at 7.30 pm. On a perusal of Ext.P11 wound certificate issued from the A.M.Hosptial, Kaunagappaly, there is nothing on record to show that PW1 accompanied the deceased and PW2 to the hospital. When examined before court, PW14 stated that immediately after the occurrence, he rushed to the scene of occurrence and arranged a scene guard duty and thereafter left home for preforming law and order duty in connection with the annual festival at Kottamkara Devi Temple. He did not record his proposed visit to the place in the General Diary. Though he received reliable information regarding the occurrence, he did not record it and waited for the arrival of PW1. When an information was received at the Police Station, of course, he was not obliged to register every information. However, when he had verified the facts after conducting local inspection, he was bound to register the case. It is true that delayed FIR is not illegal. However, prompt and immediate lodging of FIR is always ideal. Firstly, it affords commencement of the investigation without any time lapse. Secondly, it expels the opportunity for any concoction of a false version. In this case, it is the definite case of PW1 that he Crl.A.No.1213 of 2015 :-35-:
accompanied the deceased and PW2 to the hospital. During the course, he had interacted with several people and formed an opinion touching the manner in which the occurrence had taken place. Under the circumstances, the delay in lodging the F.I.S. by PW1 before PW14 is material. The conduct of PW14 in not recording the information received in the General Diary and proceeded to the place of occurrence is also doubtful. It appears from the facts and circumstances of the case that PW1 lodged Ext.P1 FIS suppressing the genesis of the occurrence. In other words, concoction of a false version cannot be ruled out.
40. MO1 weapon was recovered in accordance with Section 27 of the Evidence Act at the instance of the accused. As per Ext.P8 postmortem certificate, the deceased had sustained incised penetrating wound 1.9x1cm, oblique, on the front of left side of chest, its upper outer end being rounded and lower inner sharply cut end being 9cm to the left of midline and 18 cm below collar bone with a small side cut 0.3x0.1cm at its inner edge 0.3cm above the lower sharp end. PW8, one of the attestors in Ext.P5 recovery mahazar stated that his signature is different.
Ext.P5 mahazar would show that MO1 is having a total length of 20.8 cm including the handle portion and the blade portion is Crl.A.No.1213 of 2015 :-36-:
having a length of 8.9cms. As per the description contained in Ext.P5, one side of the weapon is blunted. The nature of injury sustained to the deceased as disclosed from Ext.P8 does not tally with the injury sustained to the deceased with MO1. When one of the witnesses examined by the prosecution stated that his signature in Ext.P6 is different and the injuries sustained to the deceased and the measurement of the blade portion of MO1 and taking into account the nature of the weapon, it causes suspicion in our mind regarding the manner in which the occurrence took place. Although MO1 was sent for chemical examination, no human blood was detected on it. With regard to the injury in the postmortem certificate, there is a side cut as injury no.1. The question as to how side cut was caused with MO1 has not been explained. With regard to Exts.P9 and P11 certificates issued by the Doctor, who treated PW2, the entire columns have not been filled up. The treatment certificate was issued after one year from the date of treatment. It is a fact that the deceased was drunk on the date of occurrence. The accused contended that PW2 was also under the alcoholic effect. The contemporaneous records pertaining to the admission of PW2 and treatment given to PW2 were not produced. MO2 T-shirt of PW2 was produced. Crl.A.No.1213 of 2015
:-37-:
According to the evidence let in, PWs.1 and 2 were wearing dress materials at the time of occurrence. One T-shirt (MO.2)was produced with a cut. It does not contain any bloodstains on examination. These circumstances would eloquently show that the court below has taken a possible view. The contention that the court below ought to have taken a different view is not a ground to upset the finding of not guilty and consequent acquittal by the trial court.
41. PW3 testified that he came to the C.N.Junction as requested by PW4. On the other hand, PW4 stated that firstly he went to the residence of PW3 in search of him. He was not available at home. According to him, he went back to the C.N. Junction thereafter. When PW4 was examined before court, he stated that he did not see whether the accused had taken a cigarette for smoking.
42. As indicated earlier, it was brought out from the prosecution evidence that the deceased was drunk on the date of occurrence. On examination, ethyl alcohol was detected in stomach, liver,kidney and blood. In fact, he was muddled with alcoholic liquor. Under the circumstances, we are unable to presume that the accused was the aggressor and as such,the Crl.A.No.1213 of 2015 :-38-:
prosecution had succeeded in proving its case beyond doubt. The truth is certainly different.
43. It is settled principle of law that in an appeal against acquittal, the appellate court has power to reappreciate the evidence. However, without coming to the definite conclusion that findings given by the trial court are perverse, we cannot substitute the findings of the trial court by taking a totally different view.
44. In Umedbhai Jadavbhai v. The State of Gujarat [(1978)1 SCC 228], in paragraph 6 of the judgment, the Apex Court observed thus:-
"In an appeal against acquittal, the High Court would not ordinarily interfere with the trial court's conclusion unless' there are compelling reasons to do so,inter alia, on account of manifest errors of law or of fact resulting in miscarriage of justice. We are satisfied in this case that the High Court was justified in intervening in the matter for the reasons to follow."
45. In K.Gopal Reddy v. State of Andhra Pradesh [(1979)1 SCC 355], the Apex Court observed as follows:-
"............It stems out of the fundamental principle, of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that Crl.A.No.1213 of 2015 :-39-:
against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. "A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reason".
46. In Tota Singh and another v. State of Punjab [(1987)2 SCC 529], the Apex Court reiterated the very same principles in the following words:-
"..........This Court has repeatedly pointed out that the mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous."
47. In Madan Lal v. State of Jammu and Kashmir [(1997)7 SCC 677] , the Apex Court observed as under:
".....................that there must be "sufficient and compelling reasons" or "good and sufficiently cogent reasons" for the appellate court to alter an order of acquittal to one of conviction ............"Crl.A.No.1213 of 2015
:-40-:
48. In Sambasivan and others v. State of Kerala [(1998)5 SCC 412], the Apex Court observed thus:
"The principles with regard to the scope of the powers of the Appellate Court in an appeal against acquittal, are well- settled. The powers of the Appellate Court in an appeal against acquittal are no less than in an appeal against conviction. but where on the basis of evidence on record two views are reasonably possible the Appellate Court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the Appellate Court can interfere with the order of acquittal......"
49. In State of Karnataka v. K.Gopalakirshna [(2005) 9 SCC 291] while dealing with an appeal against acquittal, the Apex Court observed as follows:-
".....................In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal............."
50. Judged by the above standards, we are of the view that due and proper weight must be given to the decision of the trial court. On a survey of the decisions cited above, it is obligatory on the part of the appellate court to examine the evidence with particular care on which the order of acquittal was based and should interfere with the order only when it is satisfied Crl.A.No.1213 of 2015 :-41-:
that the view taken by the trial judge is clearly unreasonable. This is especially relevant when credibility of prosecution witnesses is at issue. The prosecution has suppressed the material facts including the genesis of the occurrence. Under the circumstance, it is not proper to rely on the oral evidence of PWs.1 to 4 to convict the accused. No investigation was conducted by PW17 as to whether the deceased was drunk. Regarding PW2 also, he did not conduct any investigation as to whether he was under the alcoholic effect. We do not find any substantial and compelling reason to hold that the trial court was wrong. The trial court had considered the entire aspects in detail and formed a probable view. In our view, the trial court's conclusion with regard to the fact is not palpably wrong or patently illegal though the entire evidence is not discussed in accordance with the sequence of events. On a re-appreciation of the evidence in this case, two views are possible:- one that leads to acquittal and other leads to conviction. When two views are possible, it is settled position of law that the appellate court must rule in favour of the accused particularly in view of the fact that his innocence is doubled by way of an acquittal by the trial court.Crl.A.No.1213 of 2015
:-42-:
51. Bearing in mind the aforesaid principles of law laid down by various decisions of the apex court, we are of the view that the findings of the trial court are not perverse. Therefore, interference in appeal is not possible. We do not find any compelling circumstance to interfere with the order of acquittal.
Resultantly we find no merit in the appeal and the appeal is dismissed accordingly.
Sd/-
A.HARIPRASAD, JUDGE sd/-
N.ANIL KUMAR, JUDGE MBS/