Kerala High Court
Shobha vs The on 9 February, 2011
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 9TH DAY OF FEBRUARY 2012/20TH MAGHA 1933
Crl.Rev.Pet.No. 494 of 2000 ( )
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SC.NO.222/1996 of ADDL.SESSIONS COURT, THALASSERY
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REVISION PETITIONER(S):
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SHOBHA,W/O.LATE RAJAN,
KOLLANANDY HOUSE, KUTHUPARAMBA,
TELLICHERY, KANNUR DISTIRCT.
BY ADV. SRI.S.RAJEEV
RESPONDENT/COMPLAINANT/ ACCUSED
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1. STATE OF KERALA, REPRESENTED BY THE C.I. OF POLICE,
KUTHUPARAMBA, KANNUR DISTIRCT.
2. N.K.SREENIVASAN,S/O.ACHUTHAN,AGED 50 YEARS, TEACHER,
MEPERI PARAMBU VEEDU, KUTHUPARAMBA AMSOM, AMBILADE DESOM.
3. NANDIATH VASU MASTER,S/O.KRISHNAN, TEACHER,
AGED 50 YEARS, PAIKKADU PARAMBU VEEDU, KOTTAYAM AMSOM,
PARAL DESOM.
4. MAROLI SUKUMARAN,S/O.KUNHIKANNAN,AGED 40 YEARS,
MUTELI VEEDU, KUTHUPARAMBA AMSOM, NARAVOOR DESOM.
5. KOYYODAN DHANANJAYAN,S/O.KRISHNAN, BILL COLLECTOR,
AGED 40 YEARS, ARAYALPURATH VEEDU, KUTHUPARAMBA AMSOM,
NARAVOOR DESOM.
6. MEPPADAN CHANDRAN,S/O.RAMAN, BILL COLLECTOR,
AGED 37 YEARS, MANGATTIDOM AMSOM, AMBILAD DESOM.
7. KAKKOTH PRAKASHAN,S/O.CHATHU,AGED 29 YEARS, MASON,
PARAMBATH HOUSE, AMBILADE DESOM.
8. PARAPPURATH RAMESAN,S/O.KUNHAMBU,AGED 32 YEARS,
DRIVER,CHAMAYIL VEEDU, KUTHUPARAMBA AMSOM,
AMBILADE DESOM.
sts 2/-
-2-
CRRP.NO.494/2000
9. CHIRAL SAJEENDRABABU,S/O.KRISHNAN, AGED 28 YEARS,
KUNNUMMAL VEEDU, KANDAMKUNNU AMSOM, KAITHERI DESOM.
10. PANOLI MANOHARAN,S/O.KUNHIRAMAN, AGED 40 YEARS,
PANOLI VEEDU, KUTHUPARAMBA AMSOM,NARAVOOR DESOM.
11. PURAMERI CHIRAYIL BABURAJ @ ASARI BABU,S/O.VASU,
CARPENTER, AGED 29, CHIRAYIL VEEDU, KANDAMKUNNU AMSOM,
KAITHERI DESOM.
12. KARAYI RAJEEVAN,S/O.KUNHIKANNAN, WELDER,AGED 29 YEARS,
POYYAYIL VEEDU, KANDAMKUNNU AMSOM, KAITHERI DESOM.
R1 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR
R2 TO12 BY SRI.M.K.DAMODARAN (SR.)
ADV. SRI.M.P.PRABHANANDAN
SRI.ALAN PAPALI
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 03-08-2011, THE COURT ON 09/02/2012 PASSED THE FOLLOWING:
sts
N.K. BALAKRISHNAN, J.
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Crl. R.P. No: 494 OF 2000
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Dated this the 9th day of February, 2011
O R D E R
The petitioner is the wife of deceased Rajan. Rajan had a homicidal death. The incident took place on 21.3.1994 at about 6.30 PM at Koothuparamba. It was alleged that the accused, who are respondents 2 to 12 herein, formed themselves into unlawful assembly with the common object of causing the murder of Rajan and in prosecution of the common object of that unlawful assembly, the accused committed rioting with deadly weapons, wrongfully restrained deceased Rajan and inflicted various cut injuries on his body to which he succumbed. The First Information Report was given by PW1, Harish an eye witness to the occurrence, at about 7.00 PM on the same day. It was recorded by the A.S.I. of Koothuparamba Police Station, based on which Crime No:101/1994 was registered. Investigation was taken over by the Circle Crl. R.P. No: 494 OF 2000 ( ) -2- Inspector of Police, Koothuparamba. The inquest on the body of the deceased was conducted by him and scene mahazar was prepared. The post mortem examination was conducted by the Doctor. Since offences under TADA were also incorporated the investigation was handed over to DySP. But subsequently, offences under the TADA were deleted and again investigation was entrusted to Circle Inspector of Police, Koothuparamba. After completing investigation charge sheet against respondents 2 to 12 were filed before the learned Magistrate who later committed the case to the Court of Session.
2. PWs 1 to 18 were examined and Exhibits P1 to P20 were marked. Exhibits X1 to X9 were also marked. On the side of the defence, Dws 1 to 17 were examined and Exhibits D1 to D12 were marked.
3. The learned Sessions Judge acquitted all the accused giving them benefit of reasonable doubt. No appeal was preferred by the State.
Crl. R.P. No: 494 OF 2000 ( ) -3-
4. The wife of the deceased, in this Revision filed by her under sections 397 and 401 Cr.P.C., challenges the said verdict of acquittal. The petitioner contends that the reasons given by the learned Sessions Judge to disbelieve the oral evidence of PWs 1 to 3 are totally untenable. The incident took place in a busy road in Koothuparamba town at 6.30 PM. Because of the terror and shock unleashed by the accused who belonged to a very strong political party, nobody came forward to speak the truth, for fear of retaliation at the hands of the accused who were supported by a militant political party who ruled the State. Hence, the Court below should have found that it was in that factual backdrop that no other person came forward to give evidence in the matter. The reasons put forward by the Court below to reject the evidence of PWs 1 to 3 is wholly erroneous and as such the verdict of acquittal given by the Court below is liable to be set aside, the petitioner pleads. Crl. R.P. No: 494 OF 2000 ( ) -4-
5. The fact that Exhibit P1 was lodged within half an hour of the incident and it reached the hands of the Magistrate on the same night should have been given weight by the Court below. The further fact that the names of the assailants were mentioned in Exhibit P1 also should have been taken into account by the Court below, the petitioner further contends.
6. Heard learned counsel for the petitioner and also the learned Senior Counsel appearing for respondents 2 to 12 and also the learned Public Prosecutor appearing for R1, the State. The following points arise for consideration.
1) Whether the Court below has improperly and illegally rejected the evidence given by the prosecution witnesses?
2) Whether the reasons given by the Court below to acquit the accused is wholly erroneous? and
3) Whether the verdict of acquittal is to be set aside.
Crl. R.P. No: 494 OF 2000 ( ) -5- Points 1 and 2
7. The fact that Kolanandi Rajan was attacked by a group of persons and he sustained fatal injuries, at about 6.30 PM on 21.3.1994 at Koothuparamba, to which he succumbed is not in serious dispute. Exhibit P7, the post mortem certificate proved by PW 11 (the Doctor) who conducted the autopsy, could see 27 ante mortem injuries on the body of the deceased. Injury No.8, mentioned in Exhibit P7 is found to be a very serious injury. Besides, the upper segment of right middle lobe of lung was found to have been cut. It was noted as injury No:10. The finding that deceased Rajan was murdered at the time and place as alleged by the prosecution is not assailed by the accused/respondents.
8. The defence mainly attacked the prosecution witnesses contending that there was no occasion for them to be present at the time and place so as to witness the incident. The learned counsel for the petitioner would Crl. R.P. No: 494 OF 2000 ( ) -6- submit that the Court below was carried away by the defence version that PWs 1 to 3 are only chance witnesses. To come to such a conclusion, the Court below has permitted impermissible evidence to be brought on record to assail the otherwise credible evidence of PWs 1 to 3. It is further submitted by the learned counsel for the petitioner that the fact that Exhibit P1, the First Information Statement, was given by PW1 at 7.00 PM, that is, within about half an hour of the incident, giving a short description of the incident in which the names of the assailants were mentioned should not have been over looked by the Court below by projecting the flimsy grounds raised by the defence.
9. The evidence given by PW1, as to his presence at the time and place was attacked by the defence contending that PW1 was never a painter and as such there was no occasion for PW 1 to purchase paint or to go to the hardware shop situated near the place of the incident. To Crl. R.P. No: 494 OF 2000 ( ) -7- prove that PW1 was not a painter by profession, DWs 1 and 2 were examined. DW2, who is an autorikshaw driver, says that PW1 was seen plying an autorikshaw. Even if it is assumed that PW1, at some point of time had driven autorikshaw, that does not mean that PW1 cannot be a painter nor can it be said that PW1 should not have/could not have gone to the shop for purchase of paint.
10. It was testified by PW1 that during that period, he was doing painting work and that deceased Rajan was known to him, as Rajan was a salesman in a shop by name 'Jyothi Traders'. It was further stated by PW1 that he used to go to the shop for purchasing paints. The incident took place at Koothuparamba-Kannur road in front of 'Leena Hotel'. The shop 'Jyothi Traders' lies almost opposite to 'Leena Hotel' mentioned above. It was sworn by PW1 that just prior to the incident, he had purchased some articles 'Janathasum' from 'Jyothi Traders'. The evidence would show that there was an outcry made by the accused that Crl. R.P. No: 494 OF 2000 ( ) -8- "no RSS man should be spared". So PW1's attention was drawn to the place of occurrence. He further swore that he saw about 15 persons attacking deceased Rajan. He, in particular, identified four persons namely, A1, A9, A10 and A11, who were seen hacking or cutting deceased Rajan. They were having long knives/choppers. It was further stated by him that besides the aforesaid accused, he could see and identify A2 to A8 also. He has given the names of those accused persons in evidence. It was further stated by him that thereafter, the accused persons left the place.
11. Evidently because of the terrifying effect of the incident the shop owners pulled down the shutters of their shops. Rajan who sustained injuries was lying unconscious. After some time the police jeep reached there. A few police men remained to guard the scene. The dead body of Rajan was taken by the police in their jeep to the Government Hospital, Koothuparamba. Thereafter, PW1 went to the Hospital. He could come to know that Rajan had succumbed Crl. R.P. No: 494 OF 2000 ( ) -9- to the injuries. He thereafter, went to the police station and gave Exhibit P1 the First Information Statement which was recorded by the A.S.I.
12. The learned senior counsel for the accused would submit that the evidence given by PW1 was rightly disbelieved by the Court below since there is evidence to show that he was not at all a painter and that he had no occasion to go to that shop at the relevant time and hence his evidence that he had seen the incident cannot be believed at all. It is submitted by the learned counsel for the petitioner that the Court below overlooked the fact that so many witnesses were examined on behalf of the accused only to contradict the prosecution witnesses ignoring the embargo contained in section 153 of the Evidence Act.
Section 153 reads thus:
"When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers Crl. R.P. No: 494 OF 2000 ( ) -10- falsely, he may afterwards be charged with giving false evidence."
13. Section 153 consists of two exceptions. Under the first exception evidence can be given to prove that the witness had been previously convicted of a crime. If the witness denied it during cross-examination, evidence may be given of his previous conviction. The other exception is; if a witness is asked any question tending to impeach his impartiality, evidence can be given to contradict it.
14. It was held by the Division Bench of this Court in Chandran v. State of Kerala 1992 (2) KLT 126 as:
"The rule limiting the right to call evidence to contradict witnesses on collateral issues excludes all evidence of facts which are incapable of affording any reasonable presumption or inference as to the principal matter in dispute. In an early decision, a Division Bench of the Allahabad High Court (consisting of Raghubar Dayal and Desai,JJ.) in Ram Bali v. State (AIR 1952 All.289) considered this aspect. Quoting Phipson on Evidence (8th Edn.), their Lordships said that "a party may not, in general, impeach the credit of his opponent's witness by calling witnesses to contradict him on irrelevant matters, and his answers thereon will be conclusive".
Crl. R.P. No: 494 OF 2000 ( ) -11- Their Lordships came to the conclusion that "if a question in cross-examination affects only the credit of the witness and is not relevant to the matters actually in issue, the witness's answer cannot be contradicted by other evidence except in certain exceptional cases". Such exceptional cases are those indicated in S.153 and 155 of the Evidence Act."
15. Sri. M.K. Damodaran, learned senior counsel for respondents would submit that illustration (c) to Section 153 would make it clear that the evidence, as led by the defence, is permissible .
Illustration (c) is:
"(c) A affirms that on a certain day he saw B at Lahore.
A is asked whether he himself was not on that day at Calcutta. He denies it.
Evidence is offered to show that A was on that day at Calcutta.
The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore."
But here, even according to the defence witness, PW 1 was in Koothuparamba town itself. It was stated by Crl. R.P. No: 494 OF 2000 ( ) -12- PW 1 that he happened to see the incident as he had been to the shop 'Jyothi Traders' for the purpose of purchasing paint. The contention that was advanced by the defence by examining the defence witness was that PW 1 was not a painter whereas he was a driver of a goods autorikshaw. PW 1 did not deny the fact that he used to drive the autorikshaw of one Babu. The evidence given by PW 1 would show that he used to purchase paint not for himself but for the owners of the building to be painted and so the bills also used to be obtained in the name of such persons. The fact that he could not remember the name of the persons in whose name it was purchased on that day is no reason to say that he had not been to that shop for purchasing the paint. It was stated by PW 1, that in fact, it was not paint but 'Janathasam' which was purchased by him on that day. According to him distemper, janathasam, emulsion etc are usually called as paint. All such materials are sold from such a hardware shop.
Crl. R.P. No: 494 OF 2000 ( ) -13-
16. Much was argued before the Court below that PW1 did not tell the investigating officer the name of the person for whom he had purchased paint or 'janathasam' on the date of occurrence. Witness is not expected to know that so much meticulous details have to be stated to the investigating officer, which actually falls in the realm of elicitatory exercise of the investigating officer. The fact that investigating officer did not elicit, such answers from the witness is no reason to hold that PW 1 is incredible. PW1 has fairly admitted that it was 'janathasam' and not emulsion paint which was purchased by him. That cannot be a reason to doubt the veracity of the witness, the learned counsel for the petitioner submits.
17. The learned counsel for the petitioner would submit that the whole attempt of the defence was to contradict the evidence given by PW1, by bringing in impermissible and inadmissible evidence. The learned counsel submits that the veracity of PW 1 cannot depend Crl. R.P. No: 494 OF 2000 ( ) -14- upon the number of witnesses examined on the side of the defence to contradict PW 1. The intrinsic worth of the witness (PW 1) has to be tested on the touchstone of probabilities. It is further pointed out by the learned counsel for the petitioner that there is evidence to show that persons who used to do other work, including autorikshaw dirvers, used to go for other works also, depending on the availability of the work. PW 1, himself stated that he used to drive autorikshaw also.
18. The learned counsel for the petitioner submits that even according to the defence it is not a passenger autorikshaw, that PW 1 used to drive but only goods autorikshaw which in fact would support the case of the prosecution that he used to carry such hardware items including paints purchased from the shops to the respective work sites. The fact that PW 1, used to drive autorikshaw also, even if it is accepted as the defence wanted to contend, cannot militate against the evidence given by PW 1 Crl. R.P. No: 494 OF 2000 ( ) -15- since his definite case is that on the day of the incident he had been to 'Jyothi Traders' for purchasing paint/janathasam.
19. It is also important to note that when PW 1 was examined there was no case for the defence that at the particular time when the incident took place PW1 was at a far away place or that it was humanly impossible for him to be at or near the place to see the incident. No specific case was put to PW 1 that at the relevant time he was seen at a different place, by such and such persons who were later examined as defence witnesses. When such a case was not put to PW 1, the evidence let in by the defence to contradict PW 1 has to be excluded in view of the inhibition contained in Section 153 of the Evidence Act.
20. The learned counsel for the petitioner has relied upon the decision of the Allahabad High Court in Ram Bali v. State AIR 1952 ALLAHABAD 289, where it was held:
"The other two witnesses of the actual occurrence happened to be passing by the house of Crl. R.P. No: 494 OF 2000 ( ) -16- Harbans only by chance. This fact may excite our suspicion but is not alone enough for a finding that the evidence given by them is false. Katwaroo was cross-examined on behalf of the accused with a view to show that Sheikh Nazir Hasan could obtain arus leaves from a place nearer his house than the place behind Harbans Singh's house. This cross- examination was against the law because no evidence could be produced by the accused to contradict the evidence of Sheikh Nazir Hasan about the reason for his being at the place of occurrence at the time when it took place. Obtaining matter through cross- examination of another witness is same as obtaining it from examination in-chief of own witness. In this respect the law makes no distinction between matter brought on record through examination-in-chief of own witness and that brought on record through cross-examination of a witness of the adversary. That evidence was not on a matter relevant to the issue. Whether arus leaves could be found at another place or not was not a matter relevant to the issue. The law as stated by Phipson on Evidence, Edn 8 is:
'After a proper foundation has been laid in cross-examination (Browne v. Dunne, ante, 468), a party may contradict his opponent's witnesses by independent evidence on all matters relevant to the issue, and in particular as to their previous contradictory statements.' (at p.471). Crl. R.P. No: 494 OF 2000 ( ) -17- 'A party may not, in general, impeach the credit of his opponent's witnesses by calling witnesses to contradict him on irrelevant matters, and his answers thereon will be conclusive.'(p.472)"
21. Witnesses cannot be expected to come prepared to defend, by independent proof of the incidents of his life to admit contradictory evidence which would lead to inextricable confusion, by raising an almost endless series of collateral issues. The aforesaid decision was dissented by Allahabad High Court in RUDDER AND OTHERS V. THE STATE, but it was on other grounds, reported in AIR 1957 ALLAHABAD 239. But Ram Bali's case was followed in MUNINAJAPPA V. STATE OF MYSORE AIR 1958 Mysore
138. Ram Bali's case was followed by the Division Bench of this Court in CHANDRAN V. STATE OF KERALA cited supra 1992 (2) KLT 126.
22. In Vijayan v. State AIR - 1999 SUPREME COURT 1311 it was held by the apex Court:
Crl. R.P. No: 494 OF 2000 ( ) -18- "Thus when the issue is whether PW3-Poosappan was present at the scene of occurrence evidence can be offered to show that at the very time he was at a different place. Evidence of that type is not aimed at shaking the credit of the witness by injuring his character. It affects the veracity of the testimony irrespective of his character."
In that case PW3 - Poosappan was present at Salem at 4.00 PM and so he could not have been present at Erode at 2.30 PM and hence it was held that the evidence is admissible since it was not aimed at shaking the credit of the witness. But that is not the position here, the learned counsel for the petitioner submits.
23. It is further submitted by the learned counsel for the petitioner that to contradict one witness (PW1) so many witnesses were examined on the side of the defence as if the evidence is to be counted by the number of witnesses examined and not by the weight or the intrinsic worth of the evidence given by the witness.
Crl. R.P. No: 494 OF 2000 ( ) -19-
24. In State of Karnataka v. Yarappa Reddy AIR 2000 SUPREME COURT 185 it was held:
"The general rule of evidence is that no witness shall be cited to contradict another witness if the evidence is intended only to shake the credit of another witness. The said rule has been incorporated in S.153 of the Evidence Act."
It was further held:
"The basic requirement for adducing such contradictory evidence is that the witness, whose impartiality is sought to be contradicted with the help of such evidence, should have been asked about it and he should have denied it. Without adopting such a preliminary recourse it would be meaningless, if not unfair, to bring in a new witness to speak something fresh about a witness already examined. In Vijayan v. State (1999) 4 SCC 36; (1999 AIR SCW 1003: AIR 1999 SC 1311: 1999 Cri LJ 2037) this Court has held that 'the rule limiting the right to call evidence to contradict a witness on collateral issues excludes all evidence of facts which are incapable of affording any reasonable presumption or inference as to the principal matter in dispute.' As the general rule of evidence is one of prohibiting evidence on collateral issues and since it is only by way of exception that such evidence can be permitted, the Court must guard that the defence evidence falls strictly within the exception."
[underlined by me to lay emphasis] Crl. R.P. No: 494 OF 2000 ( ) -20-
25. Relying on the dictum laid down in the decisions cited supra, the learned counsel for the petitioner submits that on going through the evidence let in by the defence it can be discerned that the accused wanted to attack the credibility of PW1 by stating that he was not a painter but an autorikshaw driver and so it was not possible for PW1 to be present at the shop 'Jyothi Traders'. It was not impossible for PW1 to be present at the shop at the relevant time since even according to the defence PW1 was seen in Koothuparamba town itself where the shop 'Jyothi Traders' and the place of incident are situated.
26. It is also argued by the learned counsel for the petitioner that the incident took place somewhere in front of 'Jyothi traders' and that because of the terrifying and horrifying act of the accused hacking incessantly on the body of Rajan, inflicting so many such cut wounds, the people nearby ran helter-skelter and the shop owners pulled down their shutters and so Court cannot expect the Crl. R.P. No: 494 OF 2000 ( ) -21- shop owners or other persons to come forward to depose against the accused. Normally in such cases witnesses would try to avoid the witness box lest it should invite the wrath of one group or the other.
27. It is also pointed out that the accused are the members of a powerful ruling political party that no person would be dare enough to speak against the accused, who rule or control the police also. The fact that the accused could procure so many witnesses to give evidence on collateral issues not relevant to the point in issue cannot outweigh the evidence given by PWs 1 to 3. It is also argued that it would be easy for the accused who belong to a powerful political party to produce dozens of witnesses to say that the eye witnesses were not present at the time of occurrence. That is actually attacking the credibility of the witnesses by bringing in impermissible evidence.
28. DW1 has stated that persons who drive autorikshaw during night usually go for masonry, beedi Crl. R.P. No: 494 OF 2000 ( ) -22- rolling etc during day time. Therefore, the admission made by PW1 that he used to drive autorikshaw is only to be understood in that sense. Not only that simply because a person is an autorikshaw driver (even if it is so) that is not a reason to say that he should not go to the shop for purchasing such articles, especially when the autorikshaw driven by PW1, even according to the defence is only the 'goods-autorikshaw' and not a passenger autorikshaw.
29. The evidence given by DW2 is also in the same line as the one given by DW1. DW3 was the Accountant of 'Jyothi Traders'. He was examined to say that at the time of occurrence PW1 was not there. There is no case for the prosecution that this witness or other witnesses were questioned by the investigating officer. Therefore, the contention that DW3 was present in the shop cannot be accepted at all.
30. It is pointed out by the learned counsel for the petitioners that DW2 also belongs to the same political party Crl. R.P. No: 494 OF 2000 ( ) -23- of the accused persons and so there was no difficulty for the Court to hold that DW2 was also hired by the defence to give a tutored version. DW3, the accountant of 'Jyothi Traders' was examined to prove that PW1 was not present at the time of occurrence. This again is a negative evidence which DW3, was not expected to depose, for, that is actually to contradict the evidence given by Pws 1 to 3. The evidence given by him that the assailants were not known to him is not something which can be admitted in evidence. If such a case is accepted or adopted it would be the easiest way the defence can steal a march on the Court. A powerful political party having men and resources can procure dozens of witnesses to say that the attack was made not by the accused but by some unknown persons. That is an indirect way of attacking the credibility of the prosecution witnesses by bringing in inadmissible evidence. If the evidence given by the prosecution witnesses is found otherwise credible, then it can not be brushed aside.
Crl. R.P. No: 494 OF 2000 ( ) -24-
31. DW4 was examined to prove that the incident took place on the road in front of the shop and that Rajan was hacked to death by some assailants. He was made to say that the assailants were not known to him. For the same reason as has been mentioned above, his evidence also should have been eschewed. DW4 even went to the extent of saying that he knew the names of some of the persons who murdered Rajan but curiously enough he did not tell the same to the Investigating Officer. That evidence is actually intended to contradict the evidence given by PWs 1 to 3.
32. DW 5 has stated that on 21.3.1994, he had attended an interview conducted by the Co-operative Bank and that the first and second accused were members of that interview board. He says that the interview was conducted at 5.45 - 6.00 P M. But this evidence was attempted to be used by DW5 to bolster up a plea of alibi set up by A1 and A2. There were so many aspects which were brought out Crl. R.P. No: 494 OF 2000 ( ) -25- from DW 5 to show that he was a hired and tutored witness and so he is totally incredible. There was absolutely no document to show that he had attended any such interview or to show when actually the interview had taken place. The evidence of DW5 was used only to consider the plea of alibi set up by the defence and not to contradict the evidence given by Pws 1 to 3. Therefore, his evidence is to be separately considered when the plea of alibi is to be examined.
33. DW6 was examined to say that there was a complaint against PW2 on the ground that he had cheated a woman promising to marry her but later he left the locality without marrying her. It is not known how such a conduct of PW 2, even if accepted as true, can shatter his credibility, if his evidence is otherwise worthy of credence.
34. DW7 was examined to say that the house name of PW2 furnished by him is incorrect and that he was not actually residing in the house called 'Vannathankandi'. It is Crl. R.P. No: 494 OF 2000 ( ) -26- for PW2 to say where he was residing at the relevant time and that could be challenged by putting such questions to PW2. It is not known how the evidence of DW 7 also was tried to be made use of by the defence.
35. DW8 was examined to prove that the second accused in the case had attended the duty as an Invigilator for the S.S.L.C. examination. The place of S.S.L.C. examination was stated to be a High School. The incident took place at 6.30 PM at Koothuparamba town. Even if A2 had attended the examination duty, there would be no difficulty to be present at the scene of occurrence. That apart , the said evidence also will have relevance only when the plea of alibi is to be considered. Similar is the evidence given by DWs 9 and 10.
36. DW11 was summoned to produce Exhibit X5 minutes of the Co-operative bank. It seems there was evidence to prove that an interview was conducted on 21.3.1994 as mentioned above. DWs 12 and 13 were also Crl. R.P. No: 494 OF 2000 ( ) -27- examined to prove the very same aspect.
37. DW 14 was examined to say that the second accused was residing at some other place and so the house name of second accused furnished by the prosecution witness is incorrect. By producing such an evidence the defence wanted to contend that the witnesses were giving false statement. But the evasive answers given by DW 14 would actually show his loyalty towards the accused and his party men. The fact that the second accused shifted his residence to another place, after a new house was constructed, is no reason to say that his earlier house name furnished by the prosecution witness should be viewed with suspicion. The learned counsel for the petitioner would submit that even after change of residence, persons are known by their earlier address or house name and so there is nothing unusual in referring the second accused with a particular house where he had lived earlier for a quite long time.
Crl. R.P. No: 494 OF 2000 ( ) -28-
38. DW 15 was examined to say that PW 3 is an active member of RSS. He has also stated that he did not see PW3 doing any tailoring work. That means, since DW 15 had no occasion to see PW3 doing tailoring work, it should be held that PW3 is not a tailor and so he could not see the incident, is the line of argument advanced by the accused. That also is another way of contradicting PW3; that PW 3 is not a tailor and so he (PW3) had no occasion to see the incident. This evidence is also inadmissible, the petitioner contends.
39. DW 7 is stated to be a reporter of a particular newspaper. It seems the defence wanted to contend that in a news item relating to the murder of Rajan, details as to the name of the assailants and manner of attack were not mentioned, as if the investigation and trial have to be conducted by the reporter or correspondent of a particular daily/newspaper.
40. DW17 was the Police officer of Koothuparamba Police Station. Exhibit X9, the G.D. (General Diary) of Crl. R.P. No: 494 OF 2000 ( ) -29- 21.3.1994 was caused to be produced. It is pointed out that there is no entry that a telephonic information was received regarding the murder of a person in Koothuparamba town nor is there any entry to show that any police officer had gone to the spot on that day at about that time. This has been produced by the defence to show that the evidence given by the Police that on getting some information, the police officials rushed to the spot and thereafter the deceased was taken to the hospital is incorrect. But there is evidence to show that on getting information police had rushed to the spot and the deceased was taken to the Government hospital, situated near by, from where the deceased was pronounced dead by the doctor. No doubt this evidence may not attract the inhibition contained in Section 153 of the Evidence Act.
41. The learned counsel for the petitioner submits that since the accused belonged to a ruling political party who actually rules the police also, so many witnesses could be Crl. R.P. No: 494 OF 2000 ( ) -30- procured to give evidence on irrelevant and inadmissible matters. That evidence actually persuaded the Court below to hold that the evidence given by PWs 1 to 3 cannot be accepted. The learned counsel further submits that most of the evidence given by the defence witnesses was totally on irrelevant and inadmissible aspects and as such the Court below should not have been persuaded by such a device devised by the defence to impute incredibility to the prosecution witnesses.
42. It is also submitted by the learned counsel for the petitioner that, that was the reason why the learned trial Judge, even before framing the points for determination has described the witnesses as chance witnesses. In paragraph 6 it was referred "PW2 Haridas is another chance witness who happened to place himself in a nearby sweet stall at the time of occurrence." Referring PW3 it was stated, "PW3, Panickan Jayan is said to be a tailor. He was yet another chance witness"
Crl. R.P. No: 494 OF 2000 ( ) -31-
43. There are similar observations made by the Court below. Those observations were made even before proceeding to discuss the points in dispute, the learned counsel for the petitioner points out. Therefore, according to the learned counsel the learned trail Judge was misguided by the number of witnesses examined on the side of the defence. It is pertinent to note that the attention of the Court was not drawn to the fact as to the inadmissibility of the evidence given by some of the witnesses whose evidence was actually intended by the defence to contradict PWs 1 to 3 which is against the mandate of Section 153 of Evidence Act.
44. The learned counsel for the petitioner would also submit that the learned Public Prosecutor who conducted the case before the trial court did not raise his little finger pointing out the inadmissibility of the evidence and untenability of the contentions raised by the defence. According to the learned counsel, had the Court below been Crl. R.P. No: 494 OF 2000 ( ) -32- apprised of the inadmissibility of the evidence tendered by the defence, then certainly the Court would have been persuaded to take a different view, assessing and analyzing the evidence given by PWs 1 to 3 from a different angle, assessing the inherent worth of the testimonies of those prosecution witnesses. Since such appraisal of evidence was not there, because of the factors mentioned above, appreciation of the evidence made by the Court below has to be termed as wholly erroneous.
45. The extent of jurisdiction of the High Court in the matter of interfering in revision against an Order of acquittal was considered by the apex Court in various decisions (vide D. STEPHENS V. NOSIBOLLA AIR 1951 SC 196 AND LOGENDRANATH JHA V. SHRI POLLAILAL BISWAS AIR 1951 SC 316).
46. It was held by the apex Court in CHINNASWAMY V. STATE OF ANDHRA PRADESH AIR 1962 SC 1788:
"It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private Crl. R.P. No: 494 OF 2000 ( ) -33- parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of S.439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the Crl. R.P. No: 494 OF 2000 ( ) -34- appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. These and other cases of similar nature can properly be held to be cases of exceptional nature, where the High Court can justifiably interfere with an order of acquittal; and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of S.439(4)."
47. Therefore, it has to be seen whether there is any glaring defect in the procedure adopted by the Court below or whether there is a manifest error on a point of law and consequently there has been a flagrant mis-carriage of justice. The learned counsel for the petitioner would submit that had that part of the evidence adduced on the side of the defence which attracted the embargo contained in section 153 of the Evidence Act been not admitted or not accepted by the Court below, on the reason that credibility of the two witnesses could not depend upon the fact whether one was a painter or an autorikshaw driver, or a tailor, the Court would not have been persuaded to reject their testimony. In other words, if the inadmissible part of Crl. R.P. No: 494 OF 2000 ( ) -35- the defence evidence is eschewed or segregated, then evidence given by two of the prosecution witnesses has to be appreciated from a different angle.
48. The learned counsel submits that if the evidence of those two witnesses was appreciated independently then the Court would have come to a different conclusion. The learned counsel tries to distinguish, pointing out, that it is not a mere wrong or incorrect appreciation of evidence so far as the case on hand is concerned because the trial Court had pre-judged the issue because of the number of witnesses examined on the side of the defence and also because that Court was carried away by the impression that those two witnesses could not have seen the incident only because inadmissible evidence was admitted to come on record. Therefore, according to the learned counsel for the petitioner this is an exceptional case and there is glaring defect in the procedure adopted at the trial which resulted in Crl. R.P. No: 494 OF 2000 ( ) -36- manifest injustice in the ultimate analysis of the prosecution case.
49. The decision in BINDESHWARI PRASAD SINGH V. STATE OF BIHAR AIR 2002 SC 2907 has been cited by the learned senior counsel appearing for the accused to fortify his submission that the High Court should not re-appreciate the evidence to reach a finding different from the trail Court and that in the absence of manifest illegality resulting in grave mis-carriage of justice, exercise of revisional jurisdiction in such cases is not warranted. But the learned counsel for the revision petitioner would submit that in BINDESHWARI PRASAD SINGH's case there was no defect of procedure and there was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself. But so far as the case on hand is concerned, whether the evidence let in by the defence should have been permitted or not, in the light of the Crl. R.P. No: 494 OF 2000 ( ) -37- embargo contained in Section 153 of Evidence Act, was not at all in the realm of consideration of the Court below.
50. The learned senior counsel would submit that the aforesaid decision would make it clear that in exercise of revisional jurisdiction against an order of acquittal at the instance of a private party, the Court exercises only limited jurisdiction and should not constitute itself into a trial Court which has a much wider jurisdiction to go into the questions of facts and law to convert an order of acquittal into one of conviction. But by an order of remand this Court does not permit adduction of fresh evidence but the trial Court is only directed to re-appreciate the evidence bearing in mind the applicability or otherwise of Section 153 of Evidence Act, in regard to the evidence given by some of the defence witnesses and to have the appreciation independently.
51. In BANSI LAL V. LAXMAN SINGH AIR 1986 SC 1721 it was held by the apex Court:
"Even in an appeal against an order of acquittal no interference will be made with the judgment of the trial Crl. R.P. No: 494 OF 2000 ( ) -38- Court except in rare and exceptional cases where there has been some manifest illegality in the approach to the case or the appreciation of the evidence or where the conclusion of fact recorded by the trial Judge is wholly unreasonable so as to be liable to be characterized as perverse and there has been a resultant miscarriage of justice. The revisional jurisdiction of the High Court while dealing with an order of acquittal passed by the trial Court is more narrow in its scope. It is only in glaring cases of injustice resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of the acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised sparingly and with great care and caution."
52. By this order of remand the learned trial Judge would not be swayed or guided by any of the observation made by this Court. While hearing the matter afresh, the trial Judge would not be bound by the observations made herein, except to the extent that the trial Court has to appreciate the evidence adduced by the prosecution bearing in mind the inhibition contained in section 153 as to the acceptability or admissibility of the evidence given by some Crl. R.P. No: 494 OF 2000 ( ) -39- of the defence witnesses, in the light of the principle of law laid down by the apex Court in the decisions cited supra. That cannot in any way be complained of by the defence stating that the trial Court would be bound to take a particular decision in the light of the order of remand passed by this Court. It is made clear that no such direction is made by this Court.
53. The decisions in KAPTAN SINGH V. STATE OF M.P. 1997 SCC (CRI) 870, GURSHINDER SINGH V. JOGA SINGH 1999 SCC (CRI) 1311 AND JAGANNATH CHOUDHARY V. RAMAYAN SINGH AIR 2002 SC 2229 have also been relied on by the learned senior counsel, Sri.M.K. Damodaran, to strengthen his submission that the revisional jurisdiction of the High Court should be exercised sparingly and only in exceptional circumstances where there is manifest illegality or grave miscarriage of justice. Appreciation of evidence was got upturned by relying upon the inadmissible evidence and thus there was glaring defect Crl. R.P. No: 494 OF 2000 ( ) -40- in the procedure adopted by the Court below resulting in grave miscarriage of justice, the learned counsel for the revision petitioner submits.
54. Bearing in mind the principles adumbrated by the apex Court in the various decisions, I find that there was gross miscarriage of justice since impermissible evidence was allowed to be let in by the defence and that was considered by the trial Court to hold the prosecution witnesses unreliable. Whether eschewing that part of impermissible or inadmissible evidence adduced by the defence, the evidence given by the prosecution witnesses could infuse confidence in the mind of the trial Judge has to be considered independently.
55. Considering the totality of the facts and circumstances, I find that illegality was committed by the Court below in admitting evidence which is impermissible to be let in under section 153 of Evidence Act and it has thus affected the appreciation of evidence. Since grave Crl. R.P. No: 494 OF 2000 ( ) -41- miscarriage of justice was caused the judgment of acquittal passed by the Court below has to be set aside.
56. In the result this revision petition is allowed. The judgment of acquittal passed by the learned Sessions Judge in the aforesaid case is set aside. The case is remanded to the trial Court for fresh disposal. It is made clear that the trial Court shall rehear the prosecution and the defence, based on the evidence already adduced and will dispose of the matter afresh uninfluenced by any of the observations made by this Court. To avoid delay it is directed that the accused/respondents will appear before the Addl. Sessions Judge, Thalassery on 14.3.2012.
N.K. BALAKRISHNAN, JUDGE jjj