Kerala High Court
Suresh Babu @ Kuttan vs State Of Kerala on 21 March, 2012
Bench: R.Basant, Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE R.BASANT
&
THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH
WEDNESDAY, THE 21ST DAY OF MARCH 2012/1ST CHAITHRA 1934
CRL.A.No. 1317 of 2007 (D)
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SC.119/2006 of ADDITIONAL SESSIONS JUDGE (ADHOC)-I, MANJERI
CP.23/2006 of J.M.F.C.,NILAMBUR
APPELLANT(S)/2ND ACCUSED:
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SURESH BABU @ KUTTAN, S/O.NADARAJAN,
CHAMMATTUVELA PUTHANVEETTIL HOUSE, PALUNDA
CHUNKATHARA AMSOM, NILAMBUR.
BY ADV. SRI.BECHU KURIAN THOMAS
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.ROY THOMAS.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-03-
2012, ALONG WITH CRA. 1468/2007, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
R.BASANT & BABU MATHEW P.JOSEPH, JJ
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Crl.A.Nos.1317 of 2007-D &
1468 of 2007-C
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Dated this the 21st day of March, 2012
COMMON JUDGMENT
Basant, J
(i) Did the Court below err in accepting and acting upon the oral evidence of PWs.4, 8 and 10.
(ii) Did the Court below err in drawing inspiration for the oral evidence of PWs.4, 8 and 10 from other circumstances proved in the case?
(iii) Are the appellants or any one of them entitled to the right of private defence?
(iv) Are the accused or anyone of them entitled to the benefit of any reasonable doubt? These are the questions raised before us in these appeals by the learned counsel for the appellants- Senior counsel Sri.M.K. Damodaran for appellants 1 and 3 to 5 and Sri.Bechu Kurian Thomas, the counsel for the 2nd accused. Accused 1 and 3 to 5 Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:2:- have preferred Crl.Appeal 1468/07 whereas accused No.2 has preferred Crl.Appeal 1317/07. Appellants are referred to in this common judgment in the manner in which they are ranked as accused before the lower Court.
2. The accused have been found guilty, convicted and sentenced under Sections 143, 147, 148, 341, 324 and 302 r/w S.149 IPC. For the offence u/s 302 IPC they have been sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/-. Default sentence has also been imposed. For the other offences they have been sentenced to undergo imprisonment for various terms.
3. The prosecution alleged that at 6.45 p.m. on 30.7.2004, in front of the bakery of the deceased, within the jurisdiction of Edakkara police station the accused were members of an unlawful assembly. They were acting in prosecution of their common object to cause the death of deceased Sivaraman at the scene of the crime near a public tap. The incident commenced there. The deceased was beaten with hands and with MO1, a teak stick. He was later stabbed by A1 on his back and chest with a Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:3:- dangerous weapon/knife of which MOs.2 and 7 are the two parts. The prosecution alleged that the accused have thereby committed the offences punishable under the above Sections.
4. Investigation commenced with the registration of Exts.P5(a) FIR on the basis of Exts.P5, F.I.Statement lodged by PW4 before PW12, Sub Inspector. Investigation was completed and final report was filed by PW13 before the learned Magistrate having jurisdiction.
5. The learned Magistrate after observing all legal formalities committed the case to the Court of Session. The Court of Session took cognizance of the offences alleged against the accused. The accused denied the charges framed against them by the learned Sessions Judge. Thereupon the prosecution was directed to adduce evidence. The prosecution examined PWs.1 to 13 and proved Exts.P1 to P35. MOs.1 to 13 were also marked.
6. In the course of cross-examination of the prosecution witnesses and later when examined u/s 313 Cr.P.C., accused 2 to 5 took up a defence of total denial. Accused No.1 set up a plea Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:4:- that he is protected by his right of private defence of person. DW1, a doctor, was examined by the first accused. Exts.D1 to D6 were also marked by the defence.
7. The learned Sessions Judge on an anxious evaluation of all the relevant inputs came to the conclusion that it is absolutely safe to place reliance on the oral evidence of PWs.4, 8 and 10. Their evidence is eminently supported by other circumstances proved in the case, it was held. The learned Sessions Judge, in these circumstances, proceeded to pass the impugned judgment.
8. Before us the learned counsel for the accused and the learned Prosecutor have advanced their arguments. The learned counsel for the accused argued that the learned Sessions Judge had erred grossly in placing reliance on the oral evidence of PWs.4, 8 and 10. Their evidence should have been discarded by the learned Sessions Judge, it is contended. It is further contended that in any view of the matter the first accused is entitled to the right of private defence. The learned counsel assailed the findings of the learned Sessions Judge that all the Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:5:- accused were prompted by the common object of causing death of the deceased. In any view of the matter the appellants are entitled to the benefit of doubt, contend the learned counsel for the accused.
9. The learned Prosecutor contends that the Court below has committed absolutely no error in placing reliance on the oral evidence of PWs.4, 8 and 10 which is supported by a host of other circumstances available in the case. The first accused is not entitled to claim the protection of the right of private defence. The first accused or the other accused is not entitled to the benefit of any reasonable doubt. In these circumstances these appeals may be dismissed, it is prayed.
10. We have considered all the relevant inputs. This appellate judgment is, is intended to be read and must be reckoned as rendered in continuation of the judgment of the trial court. In that view of the matter we deem it unnecessary to attempt a re-narration of the oral and documentary evidence placed before the learned Sessions Judge. We may hasten to observe that the learned counsel have taken us meticulously and Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:6:- in detail through the oral evidence of PWs.1 to 13 and DW1. We have also been taken through the contents of Exts.P1 to P35 and Exts.D1 to D6. We have also been taken through the charges framed by the learned Sessions Judge against the accused and the answers given by the accused in the course of their examination u/s 313 Cr.P.C. We shall advert specifically to relevant materials if necessary in the course of the discussions to follow.
11. It will be appropriate at the very outset to briefly narrate the case of the prosecution and the defence. According to the prosecution, there was animosity between the appellants and the deceased Sivaraman. Two reasons are alleged by the prosecution for such animosity. There was a recent quarrel between autorickshaw drivers and jeep drivers of the locality. The accused persons belong to the group of autorickshaw drivers. The deceased had taken a stand against the autorickshaw drivers. This was an irritant in the relationship between the appellants and the deceased. The prosecution has a further case now that accused 2 and 5 were earlier employees of the Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:7:- deceased. While they were so employed by the deceased in his bakery they had kept liquor bottles in the refrigerator in the bakery of the deceased. The deceased had questioned this conduct. That incident took place long earlier. That also according to the prosecution allegedly operated as a motive for this incident.
12. According to the prosecution, the deceased had gone to the scene of the crime where there was a public tap to wash his hands. There, accused 1 to 5, as members of an unlawful assembly proceeded to the deceased. There was wordy altercation followed by physical altercation. The deceased was beaten with hands by the appellants. A2 allegedly took MO1 stick which happened to be available at the scene. The deceased attempted to run away from the scene of the crime and when he reached the locked gate of the property of one Chandy near the said water tap all the accused illegally restrained him. A5 allegedly obtained MO1 stick from A2 and beat the deceased. A1, all of a sudden, took out the knife(of which MO2 and MO7 are parts) from his waist and inflicted stab injuries on the deceased. Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:8:- The accused went away from the scene thereafter. PWs.4, 8, 9 and 10, according to the prosecution, had witnessed this incident. This, in short, is the case of the prosecution.
13. The appellants/accused also took up a fairly definite stand. According to accused 2 to 5 they were not involved in the incident at all. According to accused No.1, his father has a shop near the scene of the crime. A1 had gone to the public tap and was washing his hands. At that juncture, the deceased, PW4 and PW8 had allegedly attacked the first accused. There was an altercation and the first accused had acted only in self-defence. This is the version advanced by the appellants.
14. We shall initially deal with the motive. The motive spoken to in Ext.P5 by PW4 does not tally exactly with the motive now attempted to be set up by the prosecution in the course of trial. Absolutely no evidence is adduced about the strain in the relationship consequent to the recent dispute between the autorickshaw drivers and jeep drivers in the locality. Except vague statements no evidence is produced to show that the deceased has taken the side of the jeep drivers. It is also Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:9:- significant to note that accused No.5 is, even admittedly, not an autorickshaw driver who belongs to the group of accused 1 to 4 - all without dispute autorickshaw drivers. So far as the strain in the relationship arising from keeping of liquor bottles in the refrigerator of the bakery of the deceased is concerned, in Ext.P5 the allegation is that A1 had a motive on that score. Now in the course of the trial that version is virtually given up and it is alleged that it was A2 and A5 who had motive against the deceased on that score. There is of course incongruity about the precise motive alleged and proved by the prosecution. But not a semblance of doubt remains on the question that there was strain in the relationship between the two. Notwithstanding the inability of the prosecution to prove the specific motive alleged in Ext.P5 we do not find any doubt on the question of existence of motive/strain in the relationship between the deceased and accused 1 to 5.
15. The prosecution primarily relies on the oral evidence of eye witnesses to prove the occurrence. The prosecution wanted to examine PWs.4, 8, 9 and 10 as witnesses to the occurrence. Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:10:- PW9 who was examined as an eye witness turned completely hostile to the prosecution. He was cross examined by the learned prosecutor and Ext.P11 series, case diary contradictions, were marked. We need only mention that the oral evidence of PW9 is not of any crucial help or assistance either to the prosecution or to the defence. The evidence of PW9 can hence be eschewed safely from consideration.
16. That leaves us with PWs.4, 8 and 10. PW4 claims to be an employee of the deceased. On that aspect also we find virtually no semblance of a doubt. The evidence of PW4 is sought to be supported by Ext.P5 F.I. Statement lodged by PW4. The incident had taken place at 18.45 hours on 30.7.2004. Ext.P5 F.I.Statement was lodged by PW4 before PW12 at 21.15 hours on 30.7.2004. i.e. within 2= hours. The FIR registered, Ext.P5(a), had reached the learned Magistrate at 10.40 a.m. on 31.7.04. We are in these circumstances convinced that the evidence of PW4 that he had witnessed the incident which is supported by the contents of the contemporaneous Ext.P5 F.I.Statement can broadly be accepted. We shall later specifically look into the Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:11:- allegation of incongruities between the version of PW4 in Court and his version in Ext.P5. That PW4 had witnessed the incident is proved to us beyond the shadow of any doubt.
17. We now come to the evidence of PW8. According to the prosecution PW8 had witnessed the occurrence. Not only was he a mere witness to the occurrence, he had suffered injury also. While the deceased was being attacked by A1 with the knife, he had tried to intervene and that is how he suffered the injury. He had also gone to PW6 Doctor and Ext.P8 is the wound certificate issued by PW6 Doctor after examining PW8. The fact that PW8 has suffered the injury and had advanced before PW6 Doctor his version that he had suffered the injury, within a very short time after the suffering of the injury, eminently suggest to us that the evidence of PW8 that he had witnessed the incident can safely be accepted. We shall of course look into the alleged incongruities and inconsistencies in the evidence of PW8; but not a semblance of doubt remains in our mind that PW8 had also witnessed the occurrence.
18. We now come to PW10. PW10, by his own showing is Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:12:- a chance witness who happened to be present at the scene of crime quite accidentally. The defence has trained all their guns against the evidence of PW10. PW4 or PW8 had not seen PW10 at the scene of the crime. PW10 descends into the case from thin air without anything to support his testimony, contends the learned counsel. His name does not find a place in any of the earliest documents. How was the investigator able to trace PW10 as a witness to the occurrence? We must note that no specific explanation has been offered by the prosecution also. PW10 claims to have seen the fag end of the incident only in which A5 allegedly had beaten the deceased with MO1 stick and A1 had allegedly stabbed the deceased with the knife (MO2/MO7).
19. The defence has suggested that this PW10 is a neighbour of one Ratnakaran, an excise official who happens to be the brother-in-law of the deceased. The obvious suggestion is that PW10 was imported into the case at the instance of the said Ratnakaran to speak falsehood against the appellants.
20. We do not want to brand PW10 as a witness unworthy Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:13:- of credit. But we do note that in the facts and circumstances of this case it is not essential for this court to place any reliance on the oral evidence of PW10. We do not hence propose to rely on the evidence of PW10 for any purpose. We do note that his evidence corroborates the version of PWs.4 and 8 and that the Court below had placed reliance on the oral evidence of PW10.
21. We now come back to the evidence of PW4 and Ext.P5 F.I.Statement lodged by him. It is argued that Ext.P5 is inconsistent with the present version of PW4. We do note that there are incongruities/inconsistencies. The presence of A5 is not mentioned at all in Ext.P5. We have already adverted to the incongruity between the present version of the prosecution about the motive and the version in Ext.P5. It is also pointed out that in Ext.P5 there is no reference whatsoever to the use of MO1 stick by any of the miscreants. It is further pointed out that though it is the present case of the prosecution that A1 had inflicted multiple injuries with the knife on the deceased, in Ext.P5 there is no reference to any infliction of multiple injuries. It is argued that Ext.P5 can suggest infliction of only one injury. Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:14:-
22. We have taken note of these incongruities and inconsistencies between the oral evidence of PW4 in court and his version in Ext.P5. We do not reckon, and we have already said so, the inconsistency between the motive alleged in Ext.P5 and the present motive set up by the prosecution to be of any crucial relevance. That inconsistency cannot at all affect the evidence of PW4. Beating with MO1 (or the very use of MO1) is not referred to in Ext.P5 either specifically or by implication. We agree with the learned counsel for the appellants on that aspect. The short question is whether such omission is sufficient to generate any reasonable doubt in the mind of the Court about the very acceptability of the oral evidence of PW4. We do first of all note that PW4 is not shown to have any particular motive against A5 to justify a theory that he has deliberately implicated A5 falsely later. On this aspect we get the support of PW8 also in that he also speaks about the involvement of accused No.5. That MO1 was not specifically referred to, does not appear to us to be crucial, as it is no ones case that miscreants had proceeded to the scene of the crime with MO1. MO1 happened to be available Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:15:- at the scene and that is clearly decipherable from Ext.P10 scene mahazar. A branch of a teak tree was available and it appears that MO1 came in handy for the miscreants at the scene of crime. The omission to specifically refer to such a weapon(MO1) or the use of that weapon by A2 and A5 in Ext.P5 does not according to us persuade us to approach the evidence of PW4 with any amount of doubt, distrust, suspicion or dissatisfaction.
23. Now we will come to the evidence of PW8. We have already noted that PW8's evidence is convincingly supported by the injuries suffered by him described in Ext.P8 by PW6. PW8 is stated to be a person running a business activity in the shop adjacent to the shop of the deceased. PW9 is said to be an employee of PW8. We have already noted that the hostility of PW9 is of no consequence. The hostility of PW9 does not in any way persuade us to approach the oral evidence of PW8 with any doubt or reservation. PW8 is not shown to have any questionable antecedents worth the name. He is not shown to be in any manner interested in the deceased or inimically disposed to any one of the accused persons. His evidence eminently supports the Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:16:- oral evidence of PW4 about the commencement, genesis and culmination of the incident. We are not persuaded to approach the oral evidence of PW8 with any amount of suspicion or reservation on any score. The omnibus and vague allegation that PWs.4 , 8 and the deceased together were the aggressors against A1 does not in any way generate doubts in our mind against the acceptability of the version of PWs.4 and 8.
24. Various other contentions are also raised to assail the evidence of PWs.4 and 8. Why should the deceased have gone to the tap to wash his hands when a wash basin was available in his bakery/cool bar, it was queried. We have evidence to show that the hands of the deceased were stained with black oil( ) and it was hence that he proceeded to the tap nearby to wash his hands. Absolutely no element of dissatisfaction is aroused in our mind about the theory that the deceased had gone to the water tap to wash his hands. It is pointed out that PW4 was involved in a previous crime of alleged commission of rape. PW8, it is alleged, was involved in an incident in which he trespassed into a Bible School and indulged in contumacious and culpable acts. Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:17:-
25. PWs.4 and 8 have not denied these allegations but they have explained that no action ultimately was taken against them on the basis of those allegations. The learned counsel for the appellants attempted to build up an argument that PWs.4 and 8 were musclemen who had gone with the deceased to the scene of the crime in their attempt to attack A1. This remains in the realm of a totally unsubstantiated, vague and general theory with no legs to stand on. We do not find any merit in the contention that PWs.4 and 8 are interested in the deceased and were acting as musclemen at his instance. That theory only deserves to be rejected.
26. We now have to consider what really had happened at the scene of crime. We have already noted that the evidence of PWs.4 and 8 can safely be accepted. The learned counsel for the appellants contend that accused 2 to 5 have been arrayed as accused for fear that they who were available near the occurrence and who allegedly had witnessed the occurrence, may tender evidence in favour of the first accused.
27. A1, it is contended, was washing his hands at the said Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:18:- public water tap and he was then attacked by the deceased and PWs.4 and 8. We have already noted that this theory does not appear to be probable or acceptable.
28. Coming back to the oral evidence of PWs.4 and 8, their evidence clearly shows that all the five accused went to the deceased who was washing his hands at the said public water tap. An exchange of words and physical altercation followed in the course of which some of the accused allegedly beat the deceased with their hands. One of them(A2) allegedly picked up MO1 which was readily available. Deceased was attacked with MO1. No serious injury specifically corresponding to an infliction with MO1 is found on the person of the deceased though the possibility of some insignificant injuries having resulted by such beating with MO1 cannot be ruled out. In the course of that struggle the deceased tried to run away from the scene of the crime and then, the evidence of PWs.4 and 8 show that the deceased was obstructed and restrained by the appellants. This was done in front of the closed gate to the property of one Chandy and it was there that the crucial and fatal part of the Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:19:- incident took place. There A5 is alleged to have beaten the deceased with MO1. Specific injury to corroborate a blow with force with MO1 is not available on the person of the deceased. At that juncture the first appellant is alleged to have inflicted the stab injuries on the deceased. The evidence PWs.4 and 8, according to us, eminently establishes the sequences of events narrated above. It is apposite to further note that the oral evidence of PW4 and PW8 is supported by a host of other circumstances including the physical facts perceived at the scene of the crime described in the scene mahazar, the evidence of recovery of MO7 under S.27 of the Evidence Act and the medical evidence tendered by the experts.
29. The Court below has found all the appellants guilty of the offence of murder punishable u/s 302 r/w S.149 IPC. We shall straight away consider the contentions raised on behalf of the respondents 2 to 5 that even at worst accused 2 to 5 cannot be held to have shared any common intention or common object with the first accused to cause the death of the deceased. The sequence of events is eloquent. There is absolutely nothing to Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:20:- indicate, even going by the evidence of the prosecution, that A1 to A5 had gone to the deceased with any weapon. Of course MO1 is shown to have come in handy at the scene of crime and two of them in succession are shown to have wielded the same also. We are satisfied that from the details available it would be too naive and puerile to assume that the accused 2 to 5 had shared the alleged intention of A1 to commit the crime of murder against the deceased when they together proceeded to the deceased who were available near the water tap. Common object or common intention for accused 2 to 5 to cause the death of the deceased is thus not established.
30. It is common knowledge that vicarious liability for a crime has to be fastened only on convincing evidence placed before court. The miscreants may be having a common object or common intention but when one of them exceeds such common intention or common object and indulges in the specific crime, such person alone can be convicted for the culpable overt act committed by him. The others who shared the common intention or common object with such miscreant for lesser offences cannot Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:21:- obviously be mulcted with vicarious liability for such action of one of them which was unanticipated much less intended or contemplated by the others. In that view of the matter we are of the opinion that accused 2 to 5 who must definitely have shared the common object of the unlawful assembly to attack and cause hurt to the deceased cannot lightly be assumed to have intended to cause the death of the deceased. In this view of the matter we are of the opinion that it would be only safe to conclude that accused 2 to 5 along with A1 had the common object of assaulting and causing injuries to the deceased by beating him with hands - and may be with a weapon MO1 which was available handy at the scene of the crime. An assumption that they had the common object for commission of any graver offence does not appear to be justified by the facts and circumstances proved in the case. It is also trite that common object or common intention can be developed even without prior contemplation and planning. But in the absence of any convincing indications, we are satisfied that common intention/common object to murder the deceased cannot be attributed to the other accused(A2 to Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:22:- A5). Even the facts that some members of the unlawful assembly had picked up MO8 at the scene, that all of them continued as members of the unlawful assembly thereafter also and some of them restrained the deceased who tried to ran away from the scene are not sufficient to conclude that the other members of the unlawful assembly shared the object or intention of A1 to cause the death of the deceased. We, therefore, come to the conclusion that the finding that all the accused 2 to 5 had shared the common object of causing the death of the deceased cannot be supported. According to us it is therefore only safe to assume on the basis of the materials available that their common object could have been only to commit an offence punishable u/s 324 IPC. We shall consider the complicity of A1 later but A2 to 5, we hold, cannot be found guilty of the offence of murder punishable u/s 302 r/w S.149 IPC. To that extent the challenge by A2 to A5 deserves to succeed.
31. We now come to the evidence about the complicity of the first accused. He was armed with the knife. That knife the evidence reveals had broken at the scene of the crime and MO2 Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:23:- and MO7 are parts of the same weapon. MO2 the broken handle was available at the scene and the same was recovered under Ext.P10 scene mahazar. MO7 was allegedly thrown by the 1st accused to the adjacent property from where it was recovered under Ext.P12 recovery mahazar by PW13 Investigating Officer. PW11 is an attester to PW12 recovery mahazar. The recovery was on the basis of Ext.P12(a) information which the first accused allegedly furnished to the Investigating Officer when he was interrogated in custody.
32. The learned counsel for the first appellant contends that no witness has spoken that he had seen the weapon breaking into MO2 and MO7. No witness had perceived the alleged conduct of the deceased throwing MO7 blade portion of the knife after the incident to the adjacent property. For these reasons this theory of the prosecution on this aspect deserves to be rejected, it is contended. We find no merit in this contention also. The inability of PWs.4 and 8 to perceive the breaking of the weapon and the conduct of the first accused throwing MO7 blade to the adjacent property is no reason for the court to assume that Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:24:- the said version of the prosecution is incorrect, false or unacceptable; nor is that a sufficient reason to approach the evidence of PWs.4 and 8 with any reservation. We find no reason not to accept the evidence of PW13 about the furnishing of P12
(a) information by A1 when interrogated in custody and recovery of MO7 under Ext.P12 in the presence of PW11. That evidence eminently supports and corroborates the oral evidence of PWs.4 and 8 about the infliction of the injury on the deceased by A1.
33. The accused No.1 has pleaded the right of private defence. It is unnecessary to advert to precedents to ascertain the burden of proof on the prosecution and the accused when the plea of private defence is raised. The law is too well settled to require or warrant reference to any specific precedents.
34. The burden always rests on the prosecution to prove its case beyond doubt in all prosecutions. Whatever be the nature of evidence relied on by the prosecution and whatever be the nature of the defence set up by the accused this burden continues to rest squarely and heavily on the shoulders of the prosecution to prove the indictment beyond doubt from the Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:25:- beginning to the end of a criminal trial.
35. S.105 of the Evidence Act mandates that the presumption ought to be drawn by the Courts that the case does not fall within any of the general exceptions to criminality under the penal law. The burden to establish such general exceptions to criminality(the right of private defence in this case) must rest on the accused. The presumption u/s 105 is a rebuttable presumption of fact. The accused can attempt to discharge that burden. It is not necessary that an accused must adduce evidence on his side in support of such plea of right of private defence. He can rely on the broad probabilities emerging from the case of the prosecution. He can rely on the answers elicited during the cross-examination of prosecution witnesses. He can also rely on cogent explanations offered in the course of examination u/s 313 Cr.P.C. He can further rely on defence evidence if any adduced. It is certainly not the law that the Court must look upto the accused to adduce evidence in support of his plea of private defence.
36. We must also alertly remind ourselves of the Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:26:- difference in the quality and nature of burden on the prosecution to prove its initial case and the accused to prove his claim for any general exception. The prosecution must always prove its case beyond reasonable doubt. The case of the prosecution has to be proved to the hilt. But the burden of the accused is different. He need not prove his case to the hilt or beyond doubt; it is sufficient that he establishes his case by the test of balance of probabilities as in a civil case.
37. We must also note that an accused who unsuccessfully sets up a plea of right of private defence may not succeed in establishing such defence but he may be successful ultimately in the case if in the course of his unsuccessful attempt to establish his plea of private defence he succeeds in generating a reasonable doubt on the very case of the prosecution. If there is any reasonable doubt generated on any vital aspect of the prosecution case the accused will undoubtedly be entitled to the benefit of the reasonable doubt arising therefrom.
38. Learned counsel for the first appellant in this context points out that the first accused did suffer an injury. That is Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:27:- proved eminently by the oral evidence of PW6 and Ext.D4 wound certificate issued by him. We have also indications to suggest that the appellant had gone to the Medical College Hospital to continue his treatment. Exts.D5 and D6 are relied upon to show that PW6 had referred the appellant to the District Hospital, Manjeri. But the appellant had gone to the Medical College Hospital, Calicut. Exts.D4, D5 and D6 suggest that the appellant had suffered an injury. No prosecution witness has specifically explained this injury. The prosecution did not attempt to prove this injury on the first appellant. But in any case we have evidence of PW6 and Ext.D4 and D6 as also the evidence of DW1 and D5 to prove the injury on the first accused. The injury on the first accused/appellant hence stands proved. The prosecution has not proved it. But certainly there is proof before court of the injury suffered by the first appellant. It is the case of the prosecution now that the injury may have been suffered by the first appellant in the course of the incident. An accidental contact with the weapon used by him could itself have caused the injury, it is pointed out. In Ext.D4 the injury is described to be an Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:28:- incised wound of 2 x 1 cm in the lumbar region. There was bleeding also. In Ext.D6 reference letter also it is described that the first appellant had an incised wound 2 x 1 cm on the lumbar area. Sutures were put to control bleeding, it is further revealed in Ext.D6. DW1 did not examine the first appellant. He only proved Ext.D5. Ext.D5 was issued by another Doctor who is presently not available. The evidence of DW1 shows that there was a linear wound 3 x 0.5 x 3 cm on the lower back of L5 vertebra region and an abrasion 7 x 0.5 cm on the left leg above ankle.
39. The learned counsel for the appellant relying on precedents contends that the burden is on the prosecution to explain all injuries on the accused. The injuries stand proved. The explanation is only that these injuries could have been suffered in the course of the incident. PWs.4 and 8, the eye witnesses, have not perceived the suffering of such injuries by the first accused. Therefore, the injuries on the first appellant are not explained, contends the learned counsel for the first appellant.
Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:29:-
40. We are unable to accept this contention. The principle that the prosecution must explain injuries on the accused is not a fetish. There are sound principles underlying this obligation of the prosecution to explain such injury. If a witness does not explain the injury on an accused person, the first possibility is that the witness may not have seen the entire incident. Therefore, the non explanation of the injury demands and warrants an approach with care and caution against the evidence of the eye witnesses.
41. The next possibility is that the witnesses may be tendering partisan evidence. They want to white wash the role of one of the combatants and do not want to frankly come out with an honest version about the real incident. This is the 2nd possibility. The third possibility is of course the anxiety of such witnesses to shut out the possibility of a plea of right of private defence in favour of the injured/accused. It is to rule out the above three possibilities that the law insists that the prosecution has the burden to explain the injury on the accused.
42. In the instant case we have looked into the evidence Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:30:- of PWs.4 and 8 closely. We find no reason to assume that PWs.4 and 8 are guilty of any of the three vices referred above. The non explanation of these relatively minor injuries by the prosecution witnesses does not in any way arouse any doubt or reservation in our mind about the acceptability of the oral evidence of PWs.4 and 8. The injuries are found to be relatively minor and insignificant injuries. The evidence indicates that in the course of the incident the first accused had fallen down. Accidental contact with any object of appropriate size and nature could have caused the injuries on the first appellant. We have convincing medical evidence on that aspect. Injury could also have been caused on account of an accidental contact with the weapon used by him. In any view of the matter, we are satisfied that the non explanation of the injuries by PWs.4 and 8 need not persuade us to reject the evidence of PWs.4 and 8 or to approach their testimony with any reservation. There is absolutely nothing to indicate that the first appellant was the victim of aggression. No such complaint has ever been raised before the investigating authorities by the appellant. At any rate Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:31:- there is no evidence to show that any such complaint was ever raised before the investigator or the Magistrate by the accused.
43. The learned counsel for the first appellant finally contends that even going by the version of PWs.4 and 8 the first appellant had drawn out the knife only long later after the commencement of the incident and after the incident had progressed almost to its completion. The obvious argument is that the first appellant was obliged to take out the knife in self- defence. There is absolutely nothing to indicate that there were any circumstances which could have justifiably induced an apprehension in the mind of the first appellant of any harm to his person at the hands of the deceased. Therefore, the question of any right of private defence for the first appellant does not arise.
44. Moreover, the sequence of events clearly shows that it was first accused along with accused 2 to 5 who went to attack the deceased. If the deceased attempted to resist such attempt on his person he was certainly protected by the right of private defence. The act in private defence of the person cannot clothe the assailants with any further right of private defence. In that Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:32:- view of the matter also we are satisfied that the first appellant is not entitled to take umbrage behind the plea of right of private defence.
45. What offence has been committed by the first accused? This is the next question to be considered. We have come to the conclusion that the deceased has suffered the injuries at the hands of the first accused with a knife like MO2/MO7. The injuries suffered by the deceased are described in Ext.P9 postmortem certificate which we extract below.
"1. Incised penetrating wound 1.4 x 0.3 cm(oblique), on the left half of front of chest, its lower inner square end placed 3.5 cm outer to midline and 6 cm below collar bone. A linear abrasion 0.3 cm long, extended upwards and to the right from the lower inner end at right angle to the incised wound. The upper outer end of the incised wound was sharp cut, it was placed 4.5 cm outer to midline. It cut the intercostal muscles just below the 2nd left rib, entered the chest cavity, made an incised wound in the outer aspect of the upper lobe of left Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:33:- lung 1.6 x 0.2 cm, perforating it to emerge just above the hilum on the inner aspect of left lung making a cut 2 x 0.2 cm; it then cut the pericardium (3 cm long) and made a cut 2 cm long on the left wall of descending part of arch of aorta. The wound was directed upwards, backwards and to the right and had a total minimum depth of 6 cm. The mediastinum showed infiltration of blood. The left chest cavity contained 600 ml of fluid blood. Left lung (150gm) collapsed.
2. Abrasion 0.5 x 0.1 cm, oblique, situated on the front of neck, placed 2 cm to the left of midline and 5 cm above collar bone.
3. Abrasion 1 x 0.1 cm, vertical, on the front of lower jaw, 3.5 cm to the left of midline, its lower extent at jaw border.
4. Contusion 1 x 2 cm, front of left arm, 17 cm below the shoulder tip. There was an abrasion 0.4 x 0.2 cm overlying the contusion.
5. Incised penetrating wound 1.4 cm long (oblique), situated on the left half of back of chest, its upper inner square end Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:34:- placed 23 cm below the top of shoulder and 6 cm outer to midline. Its lower outer sharp cut end was placed 6.5 cm outer to midline. It was directed upwards, forwards and to the right. It entered the left half of chest cavity and made an oblique cut on the lower lobe of left lung 2 x 0.2 cm. The wound had a total minimum depth of 4 cm.
6. Incised wound 1.6 x 0.2 cm, vertical, situated on the right half of back of abdomen, 1.5 cm outer to midline and 31 cm below top of shoulder. Its lower end was square and upper end sharp cut. It was directed forwards, cut the paraspinal muscles and terminated by making a vertical cut 0.2 cm long and 0.1 cm deep on the transverse process of first lumbar vertebra. There was infiltration of blood around. The wound had a depth of 3.5 cm."
46. Any one who inflicts such injuries on the deceased with a weapon like MO2/7 can safely be assumed to have intended to cause the death of the deceased. Under clause firstly of S.300 the offence of murder punishable u/s 302 IPC is thus clearly Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:35:- established. It is however not the law that the offender must always have intended to cause the death of the deceased to attract the offence of murder defined u/s 300 IPC. We have unmistakable evidence to show that the injuries were intentionally inflicted with the knife(MO2/7). The injuries suffered, the evidence of PW7 shows, were sufficient in the ordinary course of nature to cause death. Injuries were inflicted intentionally and the injuries reckoned objectively were sufficient in the ordinary course of nature to cause death. Hence under clause thirdly of S.300 certainly (if not under clause firstly of S.300) the offence of murder is clearly established against the first accused. The conviction of the first appellant u/s 302 IPC is therefore perfectly justifiable and the same does not warrant interference.
47. There is a contention raised that the conviction u/s 148 IPC against all the five accused is not justified. Accused No.1 was armed with a deadly weapon/knife. Accused No.2 had picked up MO1, a deadly weapon, at the scene of the crime. Accused No.5 had armed himself with the same weapon in the Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:36:- course of the incident. Accused Nos.1, 2 and 5 can therefore be certainly held to be armed with deadly weapons in the course of committing the offence of rioting. But however as against A3 and A4 there is not even an allegation that they were armed with any deadly weapon. We find merit in the contention of the learned counsel for accused Nos.3 and 4 and that at any rate, even accepting the case of the prosecution in toto, conviction of accused Nos.3 and 4 for the offence punishable u/s 148 IPC is not justified. The challenge of accused Nos.3 and 4 against the conviction u/s 148 IPC must hence succeed.
48. We now come to the sentence imposed on the appellants. It is submitted that accused 2 to 5 have already undergone the entire sentence imposed on them u/Ss. 143, 147, 148, 341 and 324 r/w S.149 IPC. We are satisfied that the sentence imposed on all the accused u/Ss. 143, 147, 341 and 324 r/w S.149 can be upheld. We are further satisfied that the sentence imposed on accused 1, 2 and 5 u/s 148 IPC can also be upheld.
Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:37:-
49. In the result:
a) These Crl.Appeals are allowed in part;
b) The verdict of guilty, conviction and sentence imposed
on all the accused under Sections 143, 147, 341 and 324 r/w 149 I.P.C are upheld;
c) The verdict of guilty, conviction and sentence imposed on accused 1, 2 and 5 under Section 148 I.P.C are also upheld;
d) The verdict of guilty, conviction and sentence imposed on the 1st accused under Section 302 I.P.C are upheld;
e) The verdict of guilty, conviction and sentence imposed on accused 3 and 4 under Section 148 I.P.C are set aside. They are found not guilty and acquitted of the said charge;
f) The verdict of guilty, conviction and sentence imposed on accused 2 to 5 under Section 302 r/w 149 I.P.C are set aside. They are found not guilty of the offence punishable under Section 302 r/w 149 I.P.C and are acquitted of the said charge;
g) Substantive sentences of imprisonment imposed on all the appellants under all Sections shall run concurrently.
50. Registry shall forthwith communicate this judgment to Crl.A.Nos.1317 of 2007-D & 1468 of 2007-C -:38:- the court below and the prison authorities. If accused 2 to 5 have already served the sentence imposed on them, they shall, needless to say, be released from custody forthwith, if their further detention is not necessary in connection with any other case.
(R.BASANT, JUDGE) (BABU MATHEW P.JOSEPH, JUDGE) ul/-