Kerala High Court
Bhaskaran Nair Alias Bhasy vs State Of Kerala on 19 March, 1990
Equivalent citations: 1991CRILJ23
JUDGMENT S. Padmanabhan, J.
1. The sole accused in Sessions Case No. 36 of 1986 was tried by the Additional Sessions Judge, Thodupuzha for offences punishable under Sections 302 and 307 of the Indian Penal Code, but convicted only under Sections 302 and 324. Sentences are life imprisonment and rigorous imprisonment for one year. He is the appellant.
2. Deceased Pappan and PW 2 Varghese were friends and residents of Pooyamkutty. Appellant went and settled there six months before the incident. Soon he gained friendship with Pappan and divulged to him his criminal antecedents in confidence. Pappan betrayed the confidence and conveyed this information to others. That was the starting point of enmity. In the absence of Pappan, the appellant brought one Mammy, a lady of bad virtues, and lived with her in Pappan's house. Pappan was annoyed at this. In this background, they met at 7.00 p.m. on 31-1-1986 at the arrack shop of PW 14 and had a quarrel. Appellant went away announcing his determination to murder Pappan, but Pappan said that the appellant could do nothing.
3. By 7.30 p.m. that day, Pappan was waiting for PW 2 in the flight of steps near the store of one Mathai, at a short distance from the arrack shop of PW 14. Standing in the nearby road, appellant challenged Pappan to come to the road. By that time P.W2 also came there. In spite of the entreaties from PW 2 and others, Pappan accepted the challenge and came to the road. Appellant was informed of his presence and asked what he is going to do. He pushed Pappan down and took out MO 8 knife to stab him. PW 2 prevented, but resistence was overcome by giving him two stabs. PW 2 fell down. Pappan stood up and attempted to grab the knife for preventing attack. There was a scuffle for the knife. Appellant stabbed Pappan on the left side of his neck and ran away. Pappan fell down and died instantaneously. This is the prosecution case.
4. First information was given by PW 1, a local Congress (I) leader, who came on hearing about the incident. Though several occurrence witnesses were examined, all, except PWs 2 and 3, turned hostile. Among them, PW 3 was not believed by the Sessions Judge. Conviction was solely on the evidence of PW 2 taken along with the medical evidence. We do agree with the Sessions Judge that the evidence relating to Section 27 recovery of MO 8 and the extra judicial confession alleged to have been made by the appellant are not material items in view of the fact that the incident is admitted and the plea is only one of private defence.
5. Plea of the appellant is that Pappan and PW 2 waited for him and attacked him and MO 8 was with Pappan. He claims to have wrested MO 8 from Pappan and waived it when he was attempted to be stabbed.
6. Motive is not in serious dispute. It is clear beyond doubt from the evidence of PWs. 1, 2 and 15 and to a certain extent from the evidence of PW 14 also. The fact that at 7.00 p.m. the appellant announced his intention to do away with Pappan is also clear from what PW2 said though PW 14 did not support him to that extent.
7. Ext. P 23 post-mortem certificate and the evidence of PW24, who conducted autopsy, show that the injury sustained by the deceased is possible with MO 8 in the manner spoken to by PWs 2 and 3 and that it is sufficient, in the ordinary course of nature, to cause death and death was the result. Exts. P 24 to 26 and the evidence of PWs 25 to 27 also likewise probabilise the evidence of PWs. 2 and 3 in relation to the injuries of P.W. 2. The fact that the injury to the deceased was intentionally caused is also evident from the depositions of these two witnesses. Therefore, if the prosecution evidence is accepted and the plea of private defence is ruled out, convictions under Sections 302 and 324 must stand.
8. We cannot accept the argument that the evidence of PW 3 cannot be considered to support the conviction for the reason that he was disbelieved by the Sessions Judge. Acquittal could be supported by an accused even on grounds rejected or not considered by the acquitting court. Likewise, a conviction could be supported by the prosecution on all items of evidence including those considered and rejected as well as grounds not considered the entire evidence is available to the appellate court to consider the guilt or innocence untrammelled by what the trial court said. Appellate court is not bound by the fallacious reasons resorted to by the trial court. When there is a conviction, there is no question of the prosecution filing an appeal or cross objection, as in a civil case. The propriety of the rejection of the evidence of PW 3 or any other item of evidence could be challenged by the prosecution in an appeal by the accused against conviction and the appellate court is bound to consider those grounds. In that process, for supporting or vacating the conviction, the appellate court can come to its own conclusion on all items of evidence ignoring the reasons assigned by the trial court, if they are not valid.
9. PW 3 was a cook in the store building, in front of which the incident took place. His impartiality and independence were never in challenge. He is a competent witness, whose presence in the store as a cook at the time of incident was admitted even by the hostile witnesses, PWs 4 and 5 and others. He said on hearing the talk, he came out and flashed his torch and saw the incident. Flashing of torch by PW 3 is not a new development. During investigation itself, PWs 2 and 3 said so as seen from the evidence of PW 34. PWs 2 and 3 corroborated each other in the box in this respect, but the Sessions Judge simply discarded the evidence of PW 3 as improbable without assigning any reason. We find that he is a fully believable witness whose evidence find support from PW 2, the medical evidence and other circumstances. Flashing of torch in such a situation is not an improbability rendering the evidence of PW 3 unbelievable. Even if it is taken that PW 3 might not have seen the earliest part of the incident in its starting point that is no reason to reject his evidence regarding the actual overt acts. The deceased, appellant and PW2 were closely known to PW 3 and identification, even in the country light as spoken to by PWs 2 and 3, is probable. The incident was a few days before full moon.
10. It is true that PW 2 is an interested witness. That aspect could only caution the court to be careful in appreciating his evidence. His evidence was considered by the Sessions Judge on the merits and accepted. We find no reason to disagree. On the evidence of these witnesses and on the basis of the proved motive and announcement made by the appellant, it is clear that he came and challenged the deceased when he was sitting on the steps. Pappan only came to the road accepting the challenge. The appellant then pulled him down without any provocation and attempted to stab him. It was then that PW 2 caught hold of him in an attempt to prevent the attack and he was disabled and his obstruction overcome by stabbing him twice. By the time Pappan stood up, naturally he attempted to grab the knife which was aimed against him. That was only to save himself. It was in that scuffle that the appellant stabbed him to death. Pappan and PW 2 were unarmed. These facts clearly emerge from the evidence of PWs. 2 and 3 and we have absolutely no reason to disbelieve.
11. No plea of private defence could succeed in such a situation. An aggressor cannot plead private defence even when the victim did something by way of self protection. Law does not except a man, who is challenged by another without any justification, to be a coward and run away for escape. If the victim accepts the challenge of the aggressor and simply asks him after going near him as to what he is going to do, it is well within his limits even though he could have avoided that also. That cannot be, without anything more, taken as provocation to the aggressor because that is what he bargained for. If, as in this case, he is pushed and attacked, that is evidently an attack without provocation. What PW2 and the deceased did in this case against the appellant are evidently acts solely to avoid attack against the deceased. The evidence clearly indicate that Pappan alone was there and PW 2 came only after the appellant came and made the challenge. Both Pappan and PW 2 were unarmed and evidently they did not do anything to attack the appellant. What they did cannot invest the appellant with any right of private defence which is intended only by way of protection against apprehended danger to life, property or grievous hurt. None of these questions arises in this case when the appellant is solely responsible for everything.
12. There cannot be any dispute that when conviction has to depend on the evidence of a single witness, that evidence must be convicting and totally unblemished in order to satisfy the conscience of the court. Here, as we earlier stated, the evidence of PW 2 does not stand isolated. Still an argument came that his antecedents are such that he cannot be believed because he had occasion to get himself involved in various crimes as admitted by PW 1 though subsequently denied by PW 2. It is true that there are indications regarding the involvement of PW 2 in some crimes though the truth of these accusations is denied by PW 2. Regarding the truth of the accusations, there is no evidence. As against the appellant also, there are indications of involvement in more heinous crimes. The antecedents of the deceased also do not appear to be a clear state. But these are aspects of which we are not directly concerned in deciding criminality.
13. The antecedents of PW 2 is relevant in the enquiry solely for shaking his credit and thereby injuring his character. Otherwise it is not relevant and it is only a collateral or incidental matter on which independent evidence is tabooed under Section 153 of the Evidence Act when denied by the witness even when by the answer he is liable to prosecution for perjury. The prohibition is there not because the time of the court should not be wasted by entering into endless controversies on matters irrelevant to the enquiry. When a person comes as a witness, he is not expected to be prepared to answer all questions concerning his past conduct and give evidence in support of it. Therefore, on such matters, which are relevant solely to shake his credit and injure his character, what he says must be taken an conclusive (so far as that enquiry is concerned, even though it may not be so in other contexts. The counsel, therefore, said that Section 153 is applicable as prohibition only in giving evidence after the witness was asked and he answered and it will not affect any evidence given before the examination of the witnesses. Though literally such an interpretation may be correct according to the wording of the section, we are afraid that it will go against the spirit of what is intended by the Section. The provision cannot be overcome by anticipating denial and giving evidence before hand on matters capable of shaking the credit and injuring the character of a witness, who is yet to be examined. According to Section 5 of the Evidence Act, evidence could be given only on facts in issue and those declared to be relevant and of no others. The credit and character of a witness to be examined in future is not a fact in issue or fact declared to be relevant by any of the provisions of the Evidence Act. Therefore, questions to answers by PW 1 regarding the credit and character of PW 2 are only to be ignored as irrelevant. Further, on the merits, there is nothing in the evidence of PW 1 which is acceptable as shaking the credit and character of PW. 2. Even if his antecedents are relevant, it is only for cautioning the court to scan his evidence carefully. Whatever be his character and antecedents, we feel that his evidence in his case is capable of standing any scrutiny and it gets sufficient corroboration also.
14. PW 2 was carrying some explosives in his loins. The evidence is that it was the balance after being used for fishing. It was found scattered at the scene. This fact, when taken along with the circumstance that Pappan and PW2 were unarmed, indicates that they had no criminal intention. If actually they were armed and they jointly attacked the appellant, he could not have escaped at least without a scratch and the position of the provisions carried by him would not have been as seen from the evidence. So also, in such a situation, without any difficulty, he would not have been able to cause injuries on both his opponents. We also do not find any merit in the political colour given by the counsel. He said that Pappan and PW 2 were Congressmen and the appellant belongs to a rival political group and hence PW 1 foisted a case using his influence. It is true that P W 1 is a Congress leader and PW 2 as well as Pappan were sympathisers of that party. But there is no evidence of any political inclination of the appellant or any manipulation or political influence at the instance of PW 1. His evidence is that the appellant was also friendly with him. In this case, the evidence clearly indicates that Pappan did not take serious note of the possibility of the appellant meaning business in what he announced and that he was unaware of the danger and the fact that appellant had a dangerous weapon with him. What he did was only to make out that he was not a coward. We are fully satisfied from the evidence that it was an unprovoked attack in which offences punishable under Sections 302 and 324 were committed. The convictions and sentences do not require interference at our hands.
Criminal appeal is dismissed.