Kerala High Court
State Of Kerala vs Narayanan Bhaskaran And Ors. on 16 July, 1991
Equivalent citations: 1992CRILJ238
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT Chettur Sankaran Nair, J.
1. This appeal by leave, is directed against the order of acquittal in S.C. 10/86 on the file of the Court of Session, Pathanamthitta Division. Respondents were charged with offences punishable under Sections 342, 324 and 302 read with Section 34, IPC, in that they in furtherance of their common intention, caused the death of one Muhammed Kannu and caused injuries to PW 2, at or about 9 p.m. on 5-6-1985. The incident took place in front of the shop of PW 3, at Mundukottakkal. According to prosecution, respondents were talking among themselves, when the deceased came on the scene. When deceased went near the respondents-accused, first respondent is alleged to have taken a chopper (M.O. 5), which the fourth respondent was carrying, and inflicted injuries on the deceased. PW 2 pleaded with them not to kill the deceased, and went towards them. Upon that, first accused is said to have inflicted a wound on his arm with the chopper. Thereafter, respondents went southwards. PW 2 went near the shop of PW 3 and leaning on a pillar, asked PW 3 to fetch a car. PW 3 looked for a car, but to no avail and reported the matter to PW 2. He then went to his brother's place, got a jeep and proceeded to the Government Hospital, Pathanamthitta and then to the Medical College Hospital, Kottayam. In the meanwhile, the injured Muhammed Kannu died. Around 11 p.m. on the same night, PW 1 -- father of deceased, made a statement Ext. P1 before PW 12 --Sub Inspector of Police. Ext. P1 (a) is the first information report. Ext. P5 is the inquest report and Ext. P4, the wound certificate issued by PW 5 in respect of the injuries sustained by PW 2. The dead body of Muhammed Kannu was sent for post mortem examination. PW 4 performed the autopsy and issued Ext. P2 Certificate. Respondents 1, 2 and 4 were arrested on 18-6-1985. Third respondent surrendered on 3-8-1985. Pursuant to a statement made by first respondent, M.O. 5 chopper was recovered under Ext. P6 mahazar. PWs. 8 and 13 speak to the recovery. Ext. P9 certificate of chemical analysis, reveals that the chopper was stained with human blood. PWs. 2, 3 & 6 speak to the occurrence. On this evidence, respondents stood trial. The case of respondents was one of denial.
2. The Court of Session acquitted the respondents on the grounds that PWs. 2 & 6 are not independent witnesses, that the evidence is self-contradictory, that PW 6 was a chance witness, and that the medical evidence did not support the prosecution case. These findings are challenged as perverse by the Public Prosecutor.
3. PW 2 is the injured and he has given a graphic description of the incident. PW 3 who runs a trade in the vicinity, states that he saw the incident and the accused going southwards after the occurrence. PW 6 who lives near the scene of occurrence, states that he saw injuries being inflicted on PW 2 and the deceased. He has also identified M.O. 5 chopper. These witnesses were questioned at the inquest soon after the occurrence, and they gave a clear and complete account of the occurrence, which accords with their evidence in Court. They are natural and probable witnesses. The cross-examination elicited nothing from them, to suggest that they bore ill-will towards the respondents, or that they were not speaking the truth.
4. Notwithstanding these, the Sessions Judge discarded their evidence. In paragraph (26) of the judgment, the Sessions Judge styled the evidence as self-contradictory. In what manner the evidence is self-contradictory, is not stated. The Sessions Judge stated further that the deceased, PW 2 and PW 6 were headload workers and 'customers of PW 3. PW 6 was, in addition, labelled a chance witness and disbelieved.
5. The expressions "independent witness' and 'chance witness' have been employed without a proper appreciation of what these expressions convey. If by 'independent witnesses' the Sessions Judge meant persons of the highest sense of detachment and abandon, she was importing a concept alien to realities. The Supreme Court has time and time again, cautioned against labelling witnesses in an unrealistic manner, and rejecting their evidence. Expressions like 'independent witness' and 'interested witness' must be understood in a reasonable perspective. What is a witness, expected to be independent of? He must be independent of bias, for or against the prosecution or the accused. He should be free of personal interest in the outcome of the trial. In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 : (1952 Cri LJ 547) the Supreme Court described an independent witness, as one independent of sources, which are likely to be tainted, and in State of U.P. v. Sughar Singh, AIR 1978 SC 191 : (1978 Cri LJ 141), the Court cautioned that there should be clinching material for classifying a witness, as partisan. Whether a witness is independent or interested, is a matter of ascertainment from circumstances, by a process of evaluation, based on broad probabilities and sound forensic sense. The intangibles are incommensurable, and the yardstick of forensic evaluation is the only measure available. Vague hunches cannot take the place of judicial evaluation. Nor, are phrases like 'interested witness', weapons to be used at will against witnesses. Since no personal interest for the prosecution, or against the accused is discernible in PWs. 2, 3 & 6, it is not proper to characterise them as interested witnesses.
6. Even in the case of interested or partisan witnesses, it is not the law that their evidence should be rejected. Principle and precedent, is to that effect. State of Uttar Pradesh v. Ballabh Das AIR 1985 SC 1384 : (1985 Cri LJ 2009) illustrates the law on this point. The Court said (para 3):
There is no law which says that in the absence of any independent witness, the evidence of interested witnesses should be thrown out.... The evidence of interested witnesses is not like that of an approver which is presumed to be tainted....
An interested witness is not always an unreliable witness. The evidence has to be assessed, like any other piece of evidence. Sir Rupert Cross -- Evidence -- 5th Edition (page 165) states :
Interest is now something which only affects the weight of a person's evidence.
In Hari Obula Reddi v. The State of Andhra Pradesh 1980 Cri LJ 1330 (SC) : (AIR 1981 SC 82), the Supreme Court reminded that it is settled law that interested evidence, is not unreliable evidence. (See also State of U.P. v. Ram Swarup -- AIR 1988 SC 1028; State of U.P. v. Hari Ram -- AIR 1983 SC 1081 : (1983 Cri LJ 1638); and Babu v. State of Uttar Pradesh -- AIR 1980 SC 443 : (1980 Cri LJ 392)). Assuming that PWs. 2 and 6 and the deceased were headload workers who had worked for PW 3 (like they would have worked for many others), it eludes comprehension how they cease to be independent witnesses, or become unreliable.
7. Describing PW 6 as a chance witness and rejecting his evidence on that score, was not justified. The expression 'chance witness' is of dubious coinage -- of no precise import, and often misunderstood than understood. The most that the expression may convey, is that the witness is not a probable witness or a likely witness. For that matter, human beings do not always move in an appointed orbit. Because of their presence at a place, where they have no compelling reasons to be present, their evidence does not warrant rejection. The decision of the Supreme Court in Rana Partap v. State of Haryana AIR 1983 SC 680 : (1983 Cri LJ 1272) is instructive. The Court said (para 3) :
We do not understand the expression 'chance witness'. Murders are not committed with previous notice to witnesses, soliciting their presence.... If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion....
What ought to be a matter of forensic assessment, cannot be reduced to a wooden yardstick.
8. The Sessions Judge erred seriously in styling PW 6 a chance witness. He lives near the scene of occurrence, and there is nothing extraordinary or incongruous, if he is seen around the scene of occurrence, that too, at not too unearthly an hour. It must also be remembered that PWs. 2, 3 & 6 were questioned at the inquest, and that they came out with a graphic version of the incident at the first available moment. They are people of the locality and natural witnesses. Nothing was elicited against them, to suggest that their evidence was unreliable.
9. Another reason that persuaded the Sessions Judge to reject the prosecution case, is the presence of the dead body at a place 181/2 metres away from the place of incident. PW 4 Doctor, stated that death would have been instantaneous. From this, the Sessions Judge concluded that the prosecution case was not true. The opinion of the doctor -- apart from the fact that it is only an opinion, cannot lead to the inference that the deceased would have fallen dead instantaneously on the spot, at the moment he sustained the injury. Modi in Medical Jurisprudence and Toxicology (21st Edition, page 286) has noted several cases where, after sustaining serious injuries, the victims moved for considerable distances. An instance of a person whose 8th, 9th and 10th ribs were severed and stomach and spleen cut, walking for a distance and giving a first information statement, a day after, has been noted. Likewise, Mr. Stevens, Collector of Comila, after sustaining an injury with a lethal weapon, like a "45 revolver" piercing the lung and heart ran for a distance, before he died. In the light of recorded experience and common knowledge, the finding of the Sessions Judge has only to be rejected.
10. It was then stated that there were no bloodstains on the pillar, on which PW 2 leaned. This is factually wrong because, PW 13 Circle Inspector of Police noticed blood-stains on the pillar. The Sessions Judge pointed out further that blood-stains were not found on coconuts, which the deceased was carrying in a paper bag. The paper bag was found stained with blood. The coconuts might have rolled in different directions, or the deceased would not have been squirting or spraying blood all round. There are ever so many possibilities. The Sessions Judge made a mountain of a mole, of a triviality. It was as if the Sessions Judge was looking for reasons for their own sake, and finding reasons, that are too transparent to stand scrutiny.
11. It is further stated that the prosecution did not find out the details of the conversation, between the deceased and respondents (paragraph 31). According to the witnesses, respondents were talking in low tones. The only persons who could have thrown light on the conversation, are the accused and deceased. Since dead men tell no tales, and the accused have not chosen to reveal the contents of conversation, prosecution cannot be blamed for this omission -- if omission it be. The prosecution is not required to attempt or attain the impossible.
12. Evidence must be approached with a sense of reality, with an awareness of life in its ordinary quality, and not from an unrealistic angle. Exaggerated devotion to maudlin sentiments, make a mockery of criminal law. The perspective in which evidence should be appreciated, was indicated by the Supreme Court in Shivaji Sahebrao Bodade v. State of Maharashtra, AIR 1973 SC 2622 : (1973 Cri LJ 1783). The Court observed (para 6):
We may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. 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 especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. 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 hunch, 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.
13. Noticing the decision in Shivaji's case and later decisions, the Supreme Court in State of U.P. v. Krishna Gopal, AIR 1988 SC 2154: (1989 Cri LJ 288) reiterated the need for adopting a realistic perspective. The Court said (para 13):
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.... The concepts of probability and the degree of it, cannot obviously be expressed in terms of units to be mathematically enumerated... uninformed legitimisation of trivialities would make a mockery of administration of criminal justice.
14. Criminal Law has a purpose to serve. The object is to suppress criminal enterprise, and punish the guilty. In this process, it must, however, be ensured that reasonable doubts are given to the accused. This is a guideline, not a fetish. Sir Carlton Alien said:
I dare say some sentimentalists would assent to the proposition that it is better that a thousand or even a million guilty persons should escape, than one innocent person should suffer.... If our ratio is extended indefinitely, there comes a point when the whole system of justice is broken down and society left in a state of chaos.
Viscount Simon in Stirland v. Director of Public Prosecutions (1944) AC 315 pointed out that miscarriage of justice may arise from the acquittal of the guilty, no less than the conviction of the innocent. The function of the court is not to look for reasons for acquittal. In State of U.P. v. Anil Singh AIR 1988 SC 1998 : (1989 Cri LJ 88), the Supreme Court stated the law (para 15):
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....
Viewed in this background, it is not proper to brand PWs. 2, 3 & 6 as interested witnesses, or to reject their evidence and acquit the accused. The view taken by the Sessions Judge is unreasonable. We accepted the evidence of PWs. 2, 3 & 6, and find that the occurrence took place as stated by them.
15. To sum up, the evidence of PWs. 2, 3 & 6, as also the evidence of recovery, clearly establish the charge against first respondent. However, evidence regarding common intention on the part of respondents 2 to 4 is lacking. That they were together, and that they ran away southwards, are not conclusive evidence of common intention. It may not be unreasonable to think that they shared a common intention. But, without more positive evidence, it cannot be said that existence of common intention is proved beyond reasonable doubt. The finding of the Sessions Judge to this extent, has to be upheld.
In the result, we allow the appeal against the first accused, set aside the order of acquittal, and convict him of the offence Under Section 302, IPC. He is sentenced to suffer rigorous imprisonment for life. The order of acquittal against respondents 2 to 4 is confirmed.