Kerala High Court
State Of Kerala vs Kavullapurayil Joju on 12 December, 2018
Bench: A.M.Shaffique, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
WEDNESDAY,THE 12TH DAY OF DECEMBER 2018/5TH AGRAHAYANA, 1940
CRL.A.No. 1621 of 2011
AGAINST THE JUDGMENT IN SC 1022/2004 of SESSIONS COURT
,THALASSERY DATED 13-02-2009
APPELLANT/COMPLAINANT:
STATE OF KERALA
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV. ADDL.DGP SRI.SURESH BABU THOMAS
RESPONDENT/ACCUSED:
KAVULLAPURAYIL JOJU
S/O.KUNHAMBU ASARI, AGED 32 YEARS, CARPENTER,
CHEMBILODE AMSOM THANNADA, NEAR CHOOLA BUS STOP,
KANNUR TALUK AND DISTRICT.
BY ADV. SRI.B.RAMAN PILLAI (SR.)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
28.11.2018, THE COURT ON 12.12.2018 DELIVERED THE FOLLOWING:
Crl.Appeal No.1621/11
-:2:-
JUDGMENT
Shaffique, J.
This appeal is filed by the State of Kerala challenging the judgment and order passed by the Additional Sessions Judge, Thalassery in S.C. No. 1022 of 2014 arising out of Crime No. 38 of 2000 of Chakkarakkal Police Station by which the sole accused was acquitted of all charges levelled against him.
2. The prosecution case is that on 17/02/2000 at 21.45 hours in Chembilode Amsom Koyyode Desom at Vengilod, at the bus waiting shelter on the western side of the Mowanchery-Chala P.W.D. Road, with the intention to commit murder of Sajeevan who was sitting in the waiting shelter, the accused/respondent stabbed on the left side of the neck of Sajeevan with a dagger, thereby causing his death and he uttered that he would do away with PW1 and PW11 who were with the deceased Sajeevan as they attempted to interfere and the accused/respondent waved the dagger against them causing grievous hurt to them also and hence he was charged with offence under Section 302, 307 and 326 of the Indian Penal Code, 1860 (for short 'IPC'). Crl.Appeal No.1621/11 -:3:-
3. Prosecution examined PWs 1 to 13 as witnesses, marked documents Exts.P1 to P15 and identified MO1 to MO13.
4. During 313 examination, the accused/respondent denied the incriminating circumstances and stated that the witnesses who deposed against him in Court are his political enemies and they have given evidence due to political enmity against him. He is an RSS worker and he started an RSS sakha in the locality which was not appreciated by the rival political group in the locality. He further stated that on the date of incident, after his work, he came in a bus, alighted from it and he was walking towards his home. At that time, the deceased and the injured PW1 and PW11 attacked him. PW11 Prakasan stabbed him and since it was darkness and there was push and pull, the stab fell on the deceased Sajeevan. While the deceased cried aloud, others freed the hold on him and he ran to his house. Thereafter, the Marxist party people set his house ablaze. According to him, he had not attacked Sajeevan or anybody and he is innocent.
5. DW1 was examined as a witness from the defence side. Exts.D1 to D9 were also marked.
6. The learned Additional Director General of Prosecution Crl.Appeal No.1621/11 -:4:- Sri.Suresh Babu Thomas argued that PWs 1 to 3, 10 and 11 are eye-witnesses to the incident. PW1 and PW11 are injured witnesses. Apart from their credible evidence, the medical and scientific evidence clearly establishes the guilt of the accused/respondent. Motive behind the crime is political rivalry and it is proved by the prosecution. The accused/respondent belongs to BJP/RSS and the deceased and the injured belong to CPI(M). The deposition of eye-witnesses is cogent and convincing. The fact that they are injured would guarantee the truthfulness of their version as they would not spare the real aggressor. The wound inflicted was so fatal and was intentional. The attack was single-handed and the aggressor herein was the accused/respondent and he carried the weapon. The deceased and the injured were unarmed. The place of occurrence was the bus waiting shelter built by the DYFI. Prosecution proved all the material aspects of the case beyond reasonable doubt. The Court below failed to appreciate the evidence at hand and ended up in an erring conclusion. In all respects, the judgment is perverse and unreasonable. It resulted in serious miscarriage of justice. At any rate, the case at hand is a clear case of exceeding the right of Crl.Appeal No.1621/11 -:5:- private defence, if at all it is argued for. Accused/respondent killed one person and inflicted fatal injuries on two others who were unarmed. He vehemently argued for the reversal of the finding and to punish the accused/respondent according to law. Learned ADGP cited the following judgments to support his arguments:-
(i) Nizamuddin v. State of M.P. (AIR 1994 SC 1041)
(ii) Rafiq v. State of Maharashtra (AIR 1979 SC 1179) and
(iii) Bahadur Singh and Another v. State of Punjab (AIR 1993 SC 70).
7. On the other hand, the learned Senior counsel appearing for and on behalf of the accused/respondent Sri.B.Raman Pillai argued that the Court below had discussed each and every aspect of the evidence available on record in detail and had arrived at the present conclusion which is perfectly correct. The Court below had the opportunity to see the demeanour of the witnesses as well. The entire prosecution case from the very lodging of FIR is concocted and falsely built. Prosecution has not proved the motive to the crime. Their version Crl.Appeal No.1621/11 -:6:- is that the victims were attacked due to political rivalry. It is in evidence that the accused/respondent was not a leader of BJP/RSS. Neither do the deceased and the injured, leaders of CPI(M). Even according to the injured witnesses, they don't have a case that the accused/respondent had or they had to the accused/respondent, any personal grudge or enmity. Learned Senior counsel further argued that the prosecution case had no consistency. There was definite improvements and additions. The very FIS Ext.P1 and FIR registered based on Ext.P1 FIS is itself a concocted one. Initially, other than the accused, three other persons were also mentioned in Ext.P1. Later, the case is fabricated so as to implicate the accused/respondent alone. The place of occurrence was not the one alleged by the prosecution. The incident happened outside the bus shelter, which is evident from Ext.P4 scene mahazar. There is evidence of violent scuffle. The items brought by the accused/respondent were scattered outside the bus shelter. The weapon is not recovered. The injured witnesses PW1 and PW11 had different version regarding the very infliction of injuries allegedly given on the deceased by the accused/respondent. Their version are full of material omissions Crl.Appeal No.1621/11 -:7:- and contradictions. The version of witnesses of the prosecution is not believable and hence they have been rightly disbelieved by the Court below. The genesis of the incident is suppressed from the Court. No attempt is made to make the other three persons spoken to by PW11 in Ext.P1 as witnesses to the incident. The alleged place of incident is a CPI(M) dominating area. The alleged bus shelter is built by DYFI, the youth wing of CPI(M). At no stretch of imagination, it can be inferred that the accused/respondent alone came to the bus shelter to create troubles risking his own life. He was on his way to home after work. The deceased and the injured attacked the accused/respondent and the deceased somehow got injured and even assuming that the accused had inflicted any injury, it could only be to defend himself. The trial Court rightly appreciated all these aspects and arrived at the just conclusion and it does not call for any interference. There is no perversity or unreasonableness in the appreciation of evidence to overturn the order of acquittal. He relied on the following judgments to substantiate his contentions:-
(i) Madathil Narayanan and Others v. State of Crl.Appeal No.1621/11 -:8:- Kerala and Another [2017 (1) KLD 350 (SC)]
(ii) Harbeer Singh v. Sheeshpal and Others (AIR 2016 SC 4958)
(iii) Hakeem Khan and Others v. State of Madhya Pradesh ((2017) 5 SCC 719)
(iv) Babu v. State of Kerala (ILR 2010 (4) Ker.1)
8. This is a case in which the Court below, after discussing the evidence of all material witnesses and documents adduced, disbelieved their version including that of the injured eye-witnesses. It is settled position that the appellate Courts must be reluctant to interfere with the judgment of acquittal passed by the trial Court unless the same is perverse or unreasonable or resulting in gross miscarriage of justice. Also, it is trite that the appellate Court shall not interfere with the judgment of acquittal passed by the trial Court merely on the reason that another view is possible. As already stated, this is an appeal against acquittal passed by the learned Sessions Judge. Hence, in our view, the only question to be looked into in the matter is whether the view taken by the Court below is a probable view in the light of the available evidence. Only in the Crl.Appeal No.1621/11 -:9:- event of finding any perversity or unreasonableness in the judgment, that we will be compelled to step in, to take a different view.
9. The evidence, in brief, is as follows:- PWs 1 to 3, 10 and 11 are the witness to the occurrence out of which PWs 1 and 11 are injured eye-witnesses. PW4 Dr.S.Gopalakrishna Pillai conducted the autopsy of the deceased and issued Ext.P2 post- mortem certificate. PW5 is the Village Officer who prepared Ext.P3 scene plan. PW6 is an attestor to Ext.P4 scene mahazar. MOs 3 to 9 were seized from there. PW7 is the Circle Inspector, Kannur City during the period covering 27/09/2001. He deposed that on 28/09/2001 he got the accused/respondent under custody from Court. The weapon allegedly used for the crime was not found out. PW8 is the Circle Inspector who continued the investigation. He sent Ext.P5 Chemical Analysis Report to the Court, verified the records and laid charge-sheet. PW9 is Dr.Chandrasekharan. He proved the wound certificates Exts.P6 and P7 of PW11 Prakasan and PW1 Mohanan respectively, issued by Dr.K.P.T.Abdulla. They reveal the following injuries suffered by PW11 and PW1. The injuries on PW11 Prakasan were:- Crl.Appeal No.1621/11 -:10:-
(1) Traumatic amputation left little finger, where only a piece of skin is remaining at the base. (2) Incised wound 1½ cm x 0.5 cm x 0.5 cm over the palmonar aspect of the left ring finger, where tendon is cut 4 cm x 2 cm x 2 cm and a 7cm x 2 cm x 1 cm T-shaped incised wound over left upper arm.
The injuries on PW1 Mohanan were:-
Incised wound 4cm x 2 cm x 1 cm over the latera eminence of the right hand. Contusion of 2 cm x 1 cm over the dorsal aspect of the left index finger, contusion 1 ½ cm x 1 cm over the dorsal aspect of left middle finger, incised wound 8 x 3 cm deep over the lateral aspect of the left upper arm, fracture head of second M.Cbone left side.
10. PW12 is the then ASI of Police, Chakkarakkal Police Station. He recorded Ext.P8 FIS of PW1 Prabhakaran on 18/02/2000 at 1.15 a.m. from the Co-operative Hospital, Thalassery and registered Ext.P9 FIR. Ext.P8(a) is the portion where injuries are noted in the body of both injured.
11. PW13 is the Circle Inspector of Police, Kannur at the time of incident. He conducted major part of the investigation of the case. He conducted inquest and prepared Ext.P1 inquest report, prepared Ext.P4 scene mahazar, seized MOs 1 to 13, filed Ext.P10 report deleting 3 persons mentioned in FIR, filed Ext.P11 Crl.Appeal No.1621/11 -:11:- report, sent Ext.P12 property list to Court, marked Ext.P14 copy of the forwarding note for sending MOs for chemical analysis and marked MO13 currency note.
12. DW1 is the then C.I of Police, Iritty Police Station on 18/02/2000. Ext.D9 is the FIR registered in connection with burning of house of one Kavullappurayi Kunhambu in Crime No. 24 of 2000 and Ext.D8 is the certified copy of scene mahazar of the said crime which details the complete destruction of the above-said house due to violent attack. Ext.P9(a) is the FIS of the said crime.
13. Now let's look into the evidence in detail. PW4 is the Doctor who conducted the post-mortem examination of deceased Sajeevan. Ext.P2 is the certificate issued by him. He noted a wedge shaped incised penetrating wound 7x2 c.m. vertical on the upper part of front of chest and the adjoining part of top of shoulder, on the left side, as ante-mortem injury on the deceased. He deposed the cause of death as penetrating injury on the chest involving the left lung. There is no controversy on the fact that the deceased died due to infliction of injuries detailed in Ext.P2 post-mortem certificate and it was a homicide. Crl.Appeal No.1621/11 -:12:-
14. PW1 Mohanan is an injured witness and he deposed that he saw the accused/respondent inflicting stab injuries on the deceased. He also deposed that the accused/respondent attacked both himself and PW11 during their attempt to prevent him from attacking.
15. PW2 Chalil Rajeevan is also a witness to the incident.
He deposed that he was in the bus shelter on the date of incident till 9.30 p.m. with the deceased, PW1, PW11, PW10, Chandran, and Premajan. At 9.30 p.m., all except the deceased, PW1 and PW11 left the company. After some time, he heard a cry "അമ "
(mother). He rushed to the spot and saw PW1 and PW11 catching hold of the shirt of the accused/respondent. The accused/respondent was holding a knife in his hand. It is his version that the accused/respondent waived the knife two to three times and at that time PW1 and PW11 got injured with the knife.
16. PW3 Majeed was conducting a grocery shop near the place of occurrence. It is his version that while he was closing his shop, he heard a sound from the shelter on 17/02/2000 at 09.45 p.m. He heard a cry "അമ ". It is his version that when he went Crl.Appeal No.1621/11 -:13:- there, he saw Sajeevan collapsed inside the bus shelter and PW1 and PW11 standing there, bleeding from their hands. He saw the accused/respondent Joju running towards Chala side. According to him, the accused/respondent was having a knife in his hand and he was not wearing a shirt.
17. PW10 Unnikrishnan C. stated that he saw the incident. He is a friend of the deceased and PWs 1 and 11. He was in Udaya Kalasamithi at the relevant time. He had rushed to the scene of occurrence hearing hue and cry from there. It is his version that when he went there, the accused/respondent was getting into the road. PW1 and PW11 were trying to block the accused/respondent. Accused/respondent was holding a knife. While the accused/respondent waved the knife, PW1 and PW11 got injured. He further deposed that at that time, the accused/respondent unbuttoned his shirt, dropped it and ran towards Chala. At that time, PW11 told him that the accused/respondent stabbed the deceased. It is his deposition that Premarajan, Rajeevan and Chandran reached there at the time when he reached the spot. The injured were active party workers of CPI(M) and the accused/respondent a BJP/RSS worker. Crl.Appeal No.1621/11 -:14:- The reason for the attack is political rivalry.
18. PW11 is also an injured witness. His version is that, on 17/02/2000, at about 09.45 p.m., the accused/respondent came from Chala side and entered into the shelter and threatened them stating that if they play around with them, he would do away with them. Deceased asked the accused/respondent why he was saying such things. At that time, the accused/respondent took out a dagger from a bag which he was carrying and stabbed the deceased on the left side of his neck. The deceased cried aloud "അമ ". It is the version of PW11 that PW1 and himself tried to ward off the attack and the accused/respondent waved knife at them telling that he would do away with them. When the accused/respondent tried to run away, PW1 and PW11 tried to block him and both of them got injured. He deposed to the injuries sustained by them. PW1 caught hold of the collar of the shirt of the accused/respondent. The accused/respondent cut off his buttons of shirt and ran away. According to him, apart from political enmity, there is no personal enmity between them and the accused/respondent as a reason for the attack. According to him, there are other prominent leaders in the locality for both the Crl.Appeal No.1621/11 -:15:- political parties and neither the victims nor the accused/respondent held any key position in their respective parties. According to him, they were in the habit of spending time in the bus shelter area near to the Samiti till 10.00 p.m. It is his version that the accused/respondent had passed through that way earlier on many occasions while they were sitting there. PW11 added that he saw two to three persons behind the accused/respondent on the date of incident at the relevant time. According to him, the said three persons did not remain there till the end of the incident. They had not entered into the shelter. They did not attack also. PW11 does not know whether they were RSS workers or not. It was PW11 who caught hold of the shirt of the accused/respondent while he was trying to run away. At that time, the accused/respondent waved the knife and he and PW1 got injured. There was no scuffle between them and the accused/respondent. It is his version that the accused/ respondent left his shirt by unbuttoning after PW1 let loose his hold on the shirt. He identified the shirt, the left hand of which was torn and hanging. According to him, none of his belongings were lost there. He denied the suggestion that all of them Crl.Appeal No.1621/11 -:16:- including the deceased attacked the accused/respondent and the accused/respondent was in fear of life. He also denied the suggestion that the accused/respondent was caught hold by them and taken to the other side of the road.
19. On a close perusal of the evidence at hand, it is seen that the following aspects were brought out by the defence for disproving prosecution case, out of which some of them were relied on by the Court below to disbelieve the witnesses and to arrive at its conclusion which is under challenge.
1. Prosecution suppressed truth about the actual incident and presented a fabricated story before the Court.
2. FIS itself is concocted and it is entirely different from the testimony of the witnesses.
3. There are material contradictions in the depositions of PW1 and PW11 who are alleged eye-witnesses to the incident, even in describing the overt act.
4. The case of the defence is that, if at all any injury is caused to anybody, the appellant was exercising his right of private defence.
5. It can be seen that PW12 got information from his senior Crl.Appeal No.1621/11 -:17:- officer about all relevant aspects about the crime as to place of incident, death and injury caused, time of incident etc., but he did not register an FIR. He went to the hospital and of late, registered the crime at 1.15 a.m on 18/02/2000 based on Ext.P8 FIS of PW1. The delay throws shadow of doubt on the truthfulness of the FIR.
6. In FIS, prepared after many hours of the incident, it was stated by the so called injured eye-witnesses that the appellant and three others who are identifiable were also involved in the crime. The subsequent investigating officers PWs 7 and 8 do not even venture to investigate into that aspect as PW13 filed a report Ext.P10 deleting the above 3 people from the list of accused.
7. Subsequent deletion, insertion and addition of content including names is seen in the concocted FIS and it inspires no confidence as far as the case at hand is concerned.
8. PW11 admitted in Ext.P8 that there was scuffle during the occurrence.
9. According to FIS, the incident of murder of Sajeevan happened inside the bus waiting shelter. But Ext.P4 scene Crl.Appeal No.1621/11 -:18:- mahazar amply shows that there was every possibility of violent scuffle happening outside the shelter during an attempt from the side of the deceased, injured and others to attack the appellant, which is in terms with the defence version.
10. Most of the MOs seized from the spot belongs to the appellant and it can be seen that they were scattered around the place. A shirt torn from the side of right hand is also seized from the spot. Even according to the prosecution, the said shirt belongs to the appellant and it is their version that he left it there by removing the buttons voluntarily, which is an unbelievable story.
11. The circumstances completely improbabilizes the case of the prosecution that the appellant entered the bus shelter and took the dagger from the plastic cover and inflicted injuries on the victims.
12. Even PW1 and PW11 had two different versions regarding the injury sustained by the deceased.
13. PW11 disowned his FIS version by stating that the three other persons mentioned by him did not do any harm Crl.Appeal No.1621/11 -:19:- to them and they were not involved in the crime.
14. No weapon of offence is recovered by the prosecution.
15. Motive for the offence is not proved by the prosecution. No enmity is proved by the prosecution between the appellant and the victims so as to commit murder of the deceased by coming to the stronghold place of DYFI, a youth front of CPI(M).
16. Exts.D8, D9 and D9(a) would show that the house of the appellant's father was totally destroyed following the incident.
20. From the appreciation of evidence, we may arrive at the following findings:-
The specific case of the prosecution is that the appellant all alone, carrying a dagger in a plastic bag, entered into the bus shelter shed built by DYFI with intention to commit murder of the deceased. The reason for enmity is political rivalry, no personal rivalry.
21. On the other hand, seemingly, the case of the defence is that the deceased, PW1 and PW11 were waiting for the appellant at the place of incident knowing well that the appellant Crl.Appeal No.1621/11 -:20:- would pass through the said place at that time, with a plan to attack him. The victims herein literally attacked the appellant and he escaped from the attack and during the process, somehow the victims sustained injuries. The reason for enmity was that the appellant was instrumental in starting an RSS sakha prior to the incident in a CPI(M) stronghold area.
22. As far as motive for the crime is concerned, prosecution does not have a case that apart from general political rivalry, there was any personal enmity existed between the victims and the appellant. Even injured witnesses PWs 1 and 11 categorically stated the same.
23. Another serious lapse on the part of the prosecution pointed out by the defence was the purposeful suppression of the genesis of the incident. Even the lodging of FIR is not free from cloud. PW12 deposed that he got information about the incident in detail as to the place of incident, those who were injured and those who inflicted injuries from senior officials who visited the spot soon after the incident, but he waited till 1.15 a.m. to register FIR, the purpose of which is only known to the prosecution. PW12 virtually admitted that certain insertions were Crl.Appeal No.1621/11 -:21:- made in the FIR. It is his version that he does not know under what circumstance and when the said insertion was made. He also stated that from the FIS given by injured eye-witness, he came to know that apart from the appellant, three other persons were also involved in the crime. All these evidence cast serious doubt about the genuineness of Ext.P8 FIS as it contains insertion, deletion and replacement of names for which PW12 has no explanation and so also Ext.P9 FIR and that benefit would go to the appellant.
24. The deposition of occurrence witnesses are inconsistent with respect to the fact how the deceased suffered injuries. PW11 deposed that the appellant stabbed the deceased while he was sitting in the seat inside the bus shelter. Whereas, PW1 has a version that the deceased stood up and at that time the appellant caught hold of the deceased and stabbed him.
These are spoken to by injured eye-witnesses of the prosecution regarding one and the same incident. Also, PW11 turned away from his earlier version that three other persons were also there to attack them. His evidence in Court is that they were mere spectators and they did not do anything against them. Crl.Appeal No.1621/11 -:22:-
25. It is also to be noted that PW2 and PW10 who are cited as occurrence witness by the prosecution, were witnesses to Ext.P1 inquest as well. Neither these witnesses nor the investigating officer had a case at the time of inquest while taking their statements that they were eye-witnesses to the alleged incident.
26. No weapon is recovered in connection with the crime.
27. According to the prosecution, the entire incident relating to the death of Sajeevan happened inside the shelter. But as detailed earlier, contents of Ext.P4 scene mahazar prepared by PW13 unveils an environment of violent scuffle and disorder near the alleged place of occurrence, especially outside the bus shelter. Even Ext.P8 FIS admits scuffle between the appellant and the witnesses. MOs were scattered at the place of occurrence and most of them belonged to the appellant. Virtually, prosecution witnesses has a case that the appellant loosened his shirt and left it in the waiting shed. It is not believable as such because the shirt was torn and was found outside the shelter and across the road. The sheath in which the weapon was brought was also seen outside the bus shelter. According to the Crl.Appeal No.1621/11 -:23:- prosecution, the deceased sat at the spot after suffering the stab. He did not come out. But Ext.P4 shows that blood-stained chappals of the deceased were found one inside the bus shelter and other outside in the roadside almost 15 metres away from the shelter. These facts improbabilize the version of prosecution that the incident of murder happened inside the bus waiting shelter. It rather probabilizes the defence version that the incident had happened outside the said waiting shed.
28. Finally, the learned Additional Director General of Prosecutions contended that even assuming a case of private defence, the evidence at hand would show that the appellant exceeded grossly the right to defend himself and hence need to be punished for culpable homicide not amounting to murder. The victims were unarmed. The appellant was the aggressor. He was carrying the weapon.
29. In Rafiq (supra), the Apex Court held that in an instance where the victim was stabbed with a knife causing grievous injury to his heart resulting in his death, even if it is found that the assailant was exercising the right of private defence, it could be stated that he had exceeded the right of Crl.Appeal No.1621/11 -:24:- private defence by stabbing the victim in his heart and hence he would be guilty for the offence u/s 304 Part I and not murder u/s
302. Similar proposition had been laid down in Bahadur Singh (supra) where it was found that even in a plea of self defence, when the injuries on the deceased are very serious, it amounts to exceeding the right of private defence and the accused could be convicted u/s 304 Part II and not murder. Same proposition had been held in Nizamuddin (supra). But, as already stated, in this case, the prosecution had not put forward the genesis of the incident. Of course, from the prosecution evidence itself, it is clear that the accused was exercising right of private defence. The question to be considered is whether he had exceeded the right of private defence. In this case, the injury was only a single stab and on the chest of the deceased and adjoining the part of top of the shoulder. Of course, the injury caused to the deceased was enough to cause death in the natural course and was fatal.
30. It is settled law that when a right to private defence is taken as a defence, there is no necessity for the defence to prove the same beyond reasonable doubt. It is enough that the right to private defence is evident from the proved facts and the Crl.Appeal No.1621/11 -:25:- inferences that could be drawn from the same. In other words, the defence need only probabilize a case involving right to private defence.
31. That apart, this is a case in which the trial Court after considering the entire evidence has acquitted the accused. The Apex Court in Babu (supra) held that while considering an appeal against acquittal, the appellate Court should bear in mind the presumption of innocence of the accused which stands bolstered by the judgment of acquittal of the trial Court. Merely because another view is possible, interference should be avoided unless there are good and sufficient reasons and the judgment under appeal is found to be perverse. The position of law had been reiterated in Hakeem Khan (supra) and Madathil Narayanan (supra). Viewed in that angle, we are of the view that when the trial Court based on sufficient material did not believe the version of the prosecution and had placed reliance upon sufficient material to acquit the accused, it may not be possible for this Court to interfere with the said finding.
32. From the above discussion, it is clear that the prosecution had not proved the case beyond reasonable doubt. Crl.Appeal No.1621/11 -:26:- Though the injury sustained to the deceased by itself is fatal, taking into account the overall factual circumstances in the case, we do not think that the accused had exceeded the right of private defence, if at all it is assumed that he has committed the said overt act.
In the result, we do not find any ground to interfere with the judgment of the trial Court. The above appeal is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
SHIRCY V.
Rp //True Copy// JUDGE
PS to Judge