IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 71 of 2001()
1. SUDHEESH
... Petitioner
Vs
1. THE S.I. OF POLICE
... Respondent
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.K.MOHANAN
Dated :03/12/2008
O R D E R
V.K.MOHANAN, J.
---------------------------------------------- CRL.A No.71 of 2001
---------------------------------------------- Dated, 3rd December, 2008
JUDGMENT
This is an appeal preferred by accused Nos. 1, 2 and 4 challenging the judgment dated 15.1.2001 passed by the court of Additional Sessions Judge, Kozhikode Division in S.C.No. 51/99, by which they were convicted and sentenced for the offences under section 304 Part II and Sec.307 read with Sec.34 of the Indian Penal Code.
2. The case of the prosecution is that on 27.5.97 at about 12 noon when PW1 Chandran and deceased Janardhanan were sitting at a parapet near the house of one Padmanabhan, the accused 4 in numbers with their common intention to commit murder of Janardhanan and knowing that the injury is likely to cause death, the Ist accused had stabbed Janardhanan on the back of his chest and the 2nd accused had caused grievous injury on the right thigh of the deceased Janardhanan with knife and the 2nd accused also caused injury to PW1 Chandran with knife by stabbing on his left ribs and beating with his hands and thereafter the deceased Janardhanan died on account of the injuries sustained in the incident. The accused persons have done this due to their CRL.A 71/2001
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previous enmity, connected with the incident related to the act of one Rajeesh, nephew of the accused Nos. 1, 2 and 4 peeping the wife of PW5 Bindu when she was attending the nature's call, and thereby all the accused have committed the offcence punishable under sections 302, 324 and 323 read with S.34 of IPC. On the basis of the above allegation, crime No.90/97 was registered in the Atholi police station for the said offences. After completing the investigation, a charge sheet was filed before the Court of Judicial First Class Magistrate, Quilandy, and as per order dated 10.2.99 in C.P. 3/98, the learned Magistrate committed the case to the Sessions Court from where the same was made over to the trial court.
3. In pursuance of the process issued and on appearance of the accused, after hearing them as well as the Prosecutor, a charge was framed originally for the offences punishable under sections 302, 324, 323 read with Sec.34 of IPC and the same were read over and explained to the accused to which they pleaded not guilty which resulted in the further trial during which PWs 1 to 17 were examined on the side of the prosecution and Exts.P1 to P18 were marked. Mos 1 to 11 were identified and marked as CRL.A 71/2001
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material objects. After closing the prosecution evidence, CMP 3464/2000 was filed by the Prosecutor for altering the charge under Sec.324 to 307 IPC which was allowed by the trial court as per its order dated 5.12.2000 and thus the charge was altered from 324 to 307 IPC read with Sec.34 of IPC which were also read over and explained to the accused and they pleaded not guilty. As there was no demand for further examination of the prosecution witnesses, the prosecution evidence was closed.
4. The incriminating evidence and circumstances emerged out of the prosecution evidence were put to the accused under section 313 Cr.P.C. and they denied the same. Besides the above, the 2nd accused filed a statement stating that they were not having any intention to kill the deceased Janardhanan or attack PW1 on account of the alleged previous enmity. In the said statement, the 2nd accused specifically stated that on the date of incident, the 2nd accused along with accused Nos.1 and 4 went to the place of occurrence to attend mediation talk proposed to be held at the house of the 3rd accused and at that time, knowing that the accused persons are likely to come there and to take wreak vengeance against them, on account of the enmity out of CRL.A 71/2001
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the incident the 2nd accused beat PW5 from a marriage house on the previous date of the incident, PW1 along with deceased Janardhanan were waiting at the place of occurrence and when the accused reached there, PW1 removed his shirt and showed his muscles and started beating the accused and at that time, deceased Janardhanan took a knife and tried to cause injury on himself and his brothers, the other accused. According to the 2nd accused, at that time, there was some scuffles between himself and deceased Janardhanan and in that process, 2nd accused sustained injuries on his shoulders. According to the 2nd accused, he somehow removed the knife from Janardhanan and wielded the same against PW1 and the deceased Janardhanan in exercise of his private defence to save his life and also of his brothers and in that process, deceased Janardhanan and PW1 had sustained some injuries. Thus, according to the 2nd accused, they have no intention to kill or cause injuries on Janardhanan or PW1. Accused 1 and 4 also adopted the same stand of 2nd accused and, 4th accused has further stated that he was not at all present at the place of occurrence on that day. During the time of defence evidence, DW1 was examined and Ext.D8 was marked from their CRL.A 71/2001
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side.
5. On the basis of the rival pleadings and contentions and the materials, the trial court formulated 5 issues for its consideration. However, the trial court has not framed any issue based upon the contention and defence taken by the accused to the effect that they had exercised their private defence. After considering the points raised, the trial court found that the prosecution has failed to prove that the 3rd accused had committed any offence punishable under section 302 or under section 307 read with Sec.34 IPC and he was accordingly acquitted giving him the benefit of doubt. With respect to the other accused, the trial court found that the prosecution has proved beyond reasonable doubt that accused Nos.1,2 and 4 have committed the offence of culpable homicide of deceased Janardhanan which is not amounting to murder, punishable under section 304 Part II read with S.34 IPC and also committed the offence of attempt to commit murder of PW1 punishable under section 307 read with S.34 of IPC. On the conviction of accused 1, 2 and 4 and after hearing them on sentence, they were sentenced to undergo rigorous imprisonment for 5 years each and also to pay a fine of CRL.A 71/2001
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Rs.20,000/- each and in default to undergo rigorous imprisonment for 6 months each under section 304 Part II read with S.34 of IPC and also sentenced to undergo rigorous imprisonment for 4 years each and also to pay a fine of Rs.10,000/-, and in default, to undergo rigorous imprisonment for 6 months more under section 307 read with S.34 of IPC. The sentence are ordered to run concurrently. Set off under section 428 Cr.P.C. was allowed. It is the above conviction and sentence are challenged in this appeal by accused Nos.1,2 and 4 in the above case.
6. I have heard the learned Counsel Sri T.G.Rajendran appearing for the appellants/accused and the learned Public Prosecutor Sri P.A.Salim and also perused the evidence and materials on record and also the judgment of the trial court.
7. PW1 is the injured in this case. The prosecution case, mainly, reveals through the oral testimony of PW1. According to PW1, at about 12 noon of 25.7.97, he along with deceased Janardhanan were sitting on the parapet which was situating on the side of the house of PW4 and at that time the accused came there and asked PW1 as to whether they have came there to wreck vengeance against them and accused No.4 had taken CRL.A 71/2001
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M.O2 knife from his pant's pocket and stabbed on the left back side of Janardhanan. According to PW1 when he tried to protect Janardhanan, 2nd accused took M.O1 knife and stabbed him on his chest and 2nd accused also stabbed Janardhanan with M.O2 knife on his right thigh. It is also the case of PW1 that when he started running due to fear, the accused persons chased him and accused 3 and 4 beaten him with hands and due to that he fell down near the Vayanasala and thereafter he was taken to hospital by PW2 and Rajan and others in an autorickshaw firstly to Atholi and from there to Medical College Hospital in a jeep. According to him, on the way to Atholi, he told the said Rajan that Janardhanan also sustained injury and fell down there. According to PW1, PW14 had recorded his FIS which marked as Ext.P1 on the basis of which PW14 registered Ext.P16 FIR in crime No.90/97 for the offences under sections. 302, 324, 323 read with Sec.34 IPC. In his deposition PW1 has also stated the reason for the incident and according to him, a week prior to the incident Rajeesh - nephew of accused Nos.1,2 and 4, had peeped through the latrine when wife of PW5 (PW5 is the brother of PW1) was inside and this was questioned by PW5 with the father CRL.A 71/2001
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and mother of said Rajeeh. According to PW1, the above incident of questioning the parents of said Rajeesh provoked the accused. PW1 would further say that the accused were under the impression that PW1 and deceased Janardhanan had come at the place of occurrence to wreak vengeance against the accused.
8. According to Prosecution, PW17 is the officer who undertook the investigation and he conducted the inquest of the deceased and prepared Ext.P5 inquest report. During inquest and as recorded in Ext.P5 inquest report, the clothes of the deceased Janardhanan namely, MO.3 shirt, M.O4 Mundu, MO5 Jetty were seized. As per the request of PW17, PW11 conducted the autopsy on the body of deceased Janardhanan and he issued Ext.P9 postmortem certificate. PW1 was treated by PW.9 and Ext.P7 is the wound certificate and case sheet of PW1 marked as Ext.P19 and both these documents marked through PW9. Ext.P4 is the scene mahazar prepared by PW17 in the presence of PW6 and other witnesses and he had seized MO6 series black hawai chapels from the scene of occurrence and MO7 single hawai chapel (left leg) and MO.8 shirt, M.O-9 blood stained soil and M.O-10 piece of root of the tree scratched from the tree CRL.A 71/2001
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containing blood stain also as per Ext.P4 scene mahazar. According to the prosecution, PW17 arrested the 1st accused near the Beach Hospital on 27.7.97 and accused 2 to 4 on the same day. It is also the prosecution case that on the arrest of 4th accused, he made a confession statement on the basis of which M.O-1 and M.O-2 knives were recovered from the house of 4th accused in the presence of PW10 and another witness as per Ext.P8 seizure mahazar. M.O-11 is the shirt of Ist accused seized by PW 17 as per Ext.P6 seizure mahazar in the presence of PW8 and another witness. The seized articles were produced before the committal court with property list and also sent Ext.P12 forwarding note along with Ext.P13 requisition to send the articles for chemical analysis and the same were received by PW13, the L.D.Clerk attached to Judicial Magistrate of First Class, Quilandy. Thus PW13 sent the articles for chemical analysis along with original of Ext.P14 letter of the then Magistrate and obtained Ext.P15 chemical analysis report. PW.12 is the Village Assistant attached to Atholi village office. Ext.P10 is the sketch plan of the place of occurrence. The further investigation was conducted by PW 16 and he laid the charge.
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9. The learned counsel for the appellants submitted that though in the court charge, Ist accused is shown as the person who stabbed the deceased, the finding is to the effect that the same was done by the 4th accused. According to the learned counsel, the entire prosecution case started with the registration of Ext. P16 FIR which registered on the basis of Ext.P1 FIS given by PW1. In Ext.P1, the specific case of PW1 is that it was A1 who stabbed the deceased. But when PW1 was examined in the court, he had made substantial improvement and deposed in contrary to Ext.P1 FIS that it was A4 who stabbed the deceased. The FIS was given by PW1 under the pretext that he had witnessed the incident but he had miserably failed to mention the injury sustained by A2. In the FIS, PW1 stated that A3 and A4 chased and beat him while he was running. But when he deposed in the court as PW1, he omitted the name of the 4th accused. Therefore, according to the learned counsel for the appellant, the entire case of the prosecution is under the shadow of doubt. The learned counsel pointed out that it is a case where the accused had admitted their presence connected with the incident and they have taken a plea of self defence. Under the above particular CRL.A 71/2001
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facts and circumstances involved in this case, it is incumbent on the trial court to find out who is the aggressor. According to the learned counsel , the trial court has miserably failed to come into a definite conclusion on that point. It is also pointed out by the learned counsel that in a case where self defence is taken, it is the unshifted burden of the prosecution to explain the injury on the person of the accused. In the present case, as evidenced by Ext.D8, 2nd accused sustained injury and therefore, the prosecution has to prove and explain as to how he sustained injury. The counsel invited my attention to Ext.P1 FIS launched by PW1 and submitted that there is no mention in the FIS about the injury sustained by the 2nd accused. It is also pointed out by the counsel that when PW-17 was examined, he was cross examined with respect to the injury sustained by 2nd accused. It is pointed out by the learned counsel that PW-17, the investigating officer has admitted that he knew that the 2nd accused sustained injury in the same incident and was admitted in the hospital from where he had obtained the wound certificate of 2nd accused and PW.17 had further admitted that he had questioned and recorded the statement of the doctor who CRL.A 71/2001
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treated the 2nd accused and issued Ext.D8 wound certificate. But to the surprise of the defence, that statement of the doctor was not produced, no investigation was conducted as to how the 2nd accused sustained injury and no explanation was offered regarding the injury on the 2nd accused. Thus the prosecution has suppressed the material facts from the scrutiny of the trial court The learned counsel invited my attention to the decision of the Supreme Court in Lakshmi Singh V. State of Bihar (AIR 1976 SC 2263), in which the supreme Court has laid down three inferences which can be drawn in case of non explanation of injuries on the accused. Another decision relied on on by the learned counsel is that of this Court in Pylan v. State of Kerala (1992 (2) KLT 661). The following decisions were also cited by the learned counsel for the appellant viz., Jalaram v. State of Rajasthan (JT 2005 (10)SC 168); Balwan Singh etc. v. State of Haryana (JT 2005 (5) SC 351); Chacko Mathai v. State of Kerala ( 1963 KLT 450) and George Dominic Varkey v. State of Kerala (1971 KLT 420).
10. Supporting the finding and conviction of the trial court, the learned Public Prosecutor Sri P.A.Salim submitted that the CRL.A 71/2001
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prosecution has established the case against the accused beyond reasonable doubt by adducing cogent and convincing evidence. It is pointed out that through the evidence of PW1 - an injured witness, the entire incident that taken place under which the deceased and PW1 sustained injuries are established. The learned Pubic Prosecutor submitted that in every case, the prosecution is not bound to explain the injuries of the accused. It is the case of the Public Prosecutor that 2nd accused sustained only minor injury and the same need not be explained by the prosecution and the non-explanation will not adversely affect the prosecution. The Public Prosecutor has cited the following decisions, viz., State of M.P.v. Sardar (2001 6 SCC 433); Ambika v. State (Delhi Admn.) AIR 2000 SC 718 and State of U.P v. Laeeq (1999 (5) SCC 588). The learned Public Prosecutor pointed out going by the evidence on record, it can be seen that neither the deceased nor PW1 were armed with weapon and therefore no explanation is required as to how the 2nd accused sustained injury. Hence the learned Public Prosecutor submitted that the conviction and sentence passed by the court below is based upon materials and evidence and no interference of this CRL.A 71/2001
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court is warranted in exercise of the appellate jurisdiction.
11. Going by the facts and circumstances involved in this case, the prosecution case is that a prior incident was occurred in which the allegation is that one Rajeesh, nephew of the accused peeped on Bindu - wife of PW5 , when she had gone to latrine and the same was questioned by PW5 with the parents of said Rajeesh and at that time PW5 was beaten by the said Rajeesh and pursuant to that there was a mediation at the instance of the 3rd accused and in the meanwhile, PW5 was beaten by 2nd accused in a marriage house on the previous day of the incident. On the date of incident, according to the prosecution case, the deceased and PW1 were sitting on the parapet, granite wall constructed on the lane of the side of the house of PW4 and at that time, the accused came there from the house of the sister of the accused and on seeing the deceased and PW1, the accused asked PW1 as to whether they came there to wreak vengeance against the accused and then 4th accused took M.O.2 knife from his pant's pocket and stabbed on the left back side of Janardhanan. Then the 2nd accused took M.O1 and stabbed on PW1 when he tried to protect the deceased CRL.A 71/2001
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Janardhanan from the attack of 4th accused. It is the further case that 2nd accused had also stabbed Janardhanan with M.O.2 knife on his right thigh and when PW1 started running due to fear, 3rd and 4th accused had beaten him with hands. According to the prosecution, in the said incident, PW1 sustained injury and deceased Janardhanan also received fatal injury and as result of which he died. In this juncture, it is relevant to examine the case of the defence also. The defence case is very specific and they put the same in black and white by filing a statement under section 313 Cr.P.C. According to the said statement, they admitted their presence at the place of occurrence in the incident. In the statement filed by the 2nd accused, other accused also had chosen to adopt the same contention, except 4th accused who stated that he was not at all there at the place of occurrence, it is stated that they were not having any intention to kill the deceased Janardhanan or attack PW1 on account of their previous enmity. According to them, on the date of the incident, 2nd accused along with accused 1 and 4 went to the place of occurrence to attend mediation talk proposed to be held at the house of 3rd accused and at that time, knowing CRL.A 71/2001
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that the accused are likely to come there and to wreak vengeance against them on account of the enmity of 2nd accused beating PW5 from the marriage house on the previous day of the incident, PW1 along with deceased Janardhan were waiting at the place of occurrence and when they reached there, PW1 removed his shirt and showed his muscles and started beating them with his hands. It is the specific case of the accused that at that time deceased Janardhanan took knife and tried to inflict injury on the 2nd accused and his brothers and at that time there was some scuffle between 2nd accused and deceased Janardhanan and in that process, 2nd accused sustained injury on his shoulder. According to him, he somehow removed the knife from Janardhanan and wielded the same against PW1 and deceased Janardhanan in exercise of their private defence to save the life of himself/2nd accused and also his brothers and in that process, deceased Janardhanan and PW1 sustained injuries.
12. From the above nature of the prosecution case and defence, it can be seen that both the parties are giving a different version regarding the starting of the incident and also the subsequent developments. Under the above circumstances, CRL.A 71/2001
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according to me, it is a heavy task of the trial court to find out the origin and genesis of the incident. It is relevant to note that the right of private defence or self defence can be taken by the accused either on the basis of the materials and evidence from the prosecution side or also by adducing as defence evidence and the same need not be in writing and need not specifically pleaded. Bu in the present case, such pleading was raised by filing a statement and also produced documents and oral evidence in support of such plea and during the cross examination of the prosecution witnesses questions were asked in support of plea of self defence. It appears to me that the trial court failed to consider such plea in its seriousness and importance and that is why the trial court miserably failed at least to frame an issue with respect to the plea of self defence raised by the accused.
13. Now I may examine the prosecution evidence and how far the prosecution succeeded in establishing its case, under the above situation, beyond doubt. Going by the judgment of the trial court and on a perusal of the entire evidence and materials on record, it can be seen that the prosecution has cited CRL.A 71/2001
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PW1 as its star witness for the very purpose of registration of the crime and also to establish the case against the accused. On the basis of Ext.P1 FIS given by PW1 to PW13 who recorded the same and consequently, crime No.90/97 was registered for the offences mentioned earlier in the Atholi police station. It is on the basis of the above FIR, the investigation was undertaken and after starting the evidence , prosecution filed a petition to alter section 324 to 307 IPC. It is on the basis of the above materials, the trial court framed the charge against the accused where also the main charge was against Ist accused that he inflicted injury on the deceased Janardhanan.
14. Now I may examine the oral deposition of PW1. According to PW1, when himself and deceased Janardhanan were sitting on the parapet mentioned above, the accused namely Pavithran, Pradeepan and Gireeshan came from the house of their sister and 2nd accused asked them whether they had come there to wreak vengeance for the beating of PW5 - the brother of PW1. At that time, he saw 4th accused stabbing Janardhanan when he got up on hearing the question of 2nd accused. According to PW1, when he tried to rescue Janardhanan , 2nd CRL.A 71/2001
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accused took a knife from the pocket of his pants and stabbed on his ribs. He said that on receiving the stab injury he started running and accused 2 and 3 chased and hit him on his back and he fell down there. He had also stated that 2nd accused chased him after inflicting injury on the thigh of Janardhanan. During his deposition, PW1 also gave an account regarding the previous incident, which is the root cause for the entire incident. According to him, to question the above incident, his brother - PW5 went to the house of the sister of the accused, viz., Vilasini, he had stated that his brother PW5 was beaten by the boy who peeped the wife of PW5 when she had gone to the latrine. He had also stated that pursuant to that, 2nd accused had beaten his brother PW.5. PW1 had stated that at the place of occurrence he was waiting for his brother as the wife house of his brother is very near to the place of occurrence. In the chief examination, itself, PW1 had stated that the accused had attacked them under a misunderstanding that they reached at the spot to wreak vengeance against the accused. (emphasis suuplied). It is also stated that because of hot and sweating, he was not wearing the shirt which was kept CRL.A 71/2001
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near the place of occurrence and the pants were taken to the house from the hospital and he washed the same ignoring the importance. During the chief examination, nothing mentioned as to how Janardhanan, the deceased happened to be at the place of occurrence. Without any explanation, he had stated that it was 4th accused who inflicted injury on the deceased, whereas regarding the injury on the deceased, his version in Ext.P1 FIS was that the same was inflicted by first accused. During the cross examination, PW1 said that on that day he had not gone for work and came there to meet his brother. During his cross examination, Ext.D1 was marked. Ext.D1 is the portion of the S.161 statement of PW1 by which he had stated before the police that before receiving the injury itself, because of hot and sweating he had unwear the shirt and placed it on his shoulder. During his examination, he denied the same. He had also stated that before the incident, there was no issue between himself and the accused and he find no reason for the accused to attack him. (emphasis supplied). He had deposed that they did not done anything to provoke the accused so as to attack them. When PW1 was asked whether 2nd accused sustained CRL.A 71/2001
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injury in the same incident at the same place and he was treated in the Panchayat Hospital , Kozhikode, he said he is not aware of it. It is also stated that he does not know as to how 2nd accused sustained knife injury in an accident which taken place in the same occurrence. In the cross examination also he repeated that when his brother questioned the above indecent incident that taken place at the instance of said Rajeesh, his brother was assaulted by Rajeesh. He had also admitted that with respect to the above incident there was a mediation talk. He pleaded ignorance to the suggestion that the accused had attended the conciliation talk held on 23rd and 25th. He had also pleaded ignorance as to whether his brother's wife's relatives attended the conciliation. Again he pleaded ignorance when he was questioned as to whether he was aware of the conciliation talk proposed on 27th since nobody attended from the part of PW1 or his brother PW5 on the previous conciliation talks held on two occasions. But he had admitted that it was in the meanwhile 2nd accused assaulted his brother on 26th in the marriage house. He had also admitted that 2nd accused assaulted his brother at the house of his mother's sister and the same was taken place when the CRL.A 71/2001
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invitees taking feast after the marriage and the said incident was a hot subject among the invitees. He had also admitted that because of that incident, he felt ashamed. He had also stated that it was a defiant act of the 2nd accused since he had done the same after coming over to their house. In the cross examination he had further sated that in the occurrence, the first incident was that of the stab injury inflicted on the deceased by Gireesan (4th accused). He had further admitted that with respect to this case, the said incident was an important one. He had stated that he had deposed before the police on two occasions when he was questioned that it was 4th accused inflicted the injury on the deceased Janardhanan. He had also stated that he had nothing to say if it is not seen in the statement. He also stated that when he launched Ext.P1 statement, he never stated that 2nd accused Pavithran inflicted injury by using knife on the thigh of the deceased Janardhanan. He had stated that he had deposed before the police on two occasions when he was questioned that he had told the police that when 4th accused inflicted knife injury on the deceased Janardhanan ,he received injury from 2nd accused when he tried to rescue Janardhanan. CRL.A 71/2001
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During the cross examination when suggestive questions asked to him, in support of the defence case of private defence, he denied the same. When PW1 was cross examined for and on behalf of 3rd accused, he had denied his own statement made before the police and thus Exts. D2, D3, D4 were marked. It is also important to note that during reexamination, he had tried to make up the default or the lacuna occurred during his chief examination. Only during the chief examination, he gave an account as to why he happened to be at the place of occurrence and also the presence of the deceased.
15. On a close scrutiny of the evidence of PW1, it can be seen that his evidence is not free from doubt. As pointed out earlier, in the court charge, the overt act is against Ist accused who allegedly inflicted injury on the deceased. This was framed on the basis of the materials such as Ext.P1 and the other statement of PW1 made to the police when he was examined under section 161. But when PW1 was examined, he said go-by to his Ext.P1 statement and refixed the liability on 4th accused. According him, he was present in the place of occurrence and he had seen the entire incident. But when he launched Ext.P1 and CRL.A 71/2001
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made statement before the police , he stated that it was done by Ist accused. It is also his case that he had made statement to the police that it was 2nd accused who inflicted the injury on the thigh of deceased Janardhanan. So regarding the injuries that sustained by the deceased and the person who inflicted the injury or the overt act of the accused, he had no consistent version . Exts. D1 to D4 contradictions were marked when PW1 was examined which will also goes on credibility of PW1. It is also relevant to note that from the deposition of PW1 it is clear that PW1 was highly aggrieved by the previous incident that taken place connected with the peeping incident of said Rajeesh. Therefore, the motive suggested by the defence for attacking them by PW1 and deceased cannot be ruled out and the same seems to be more probable. PW1 stated that his brother PW5 was assaulted by the said Rajeesh when PW5 questioned the above indecent incident at the instance of Rajeesh. He had also stated about the assault of 2nd accused on PW5 that took place in a marriage house viz., in the house of PW1's mother's sister. He had categorically stated that that incident was an insult to their family and they were ashamed of it. He had also stand that the CRL.A 71/2001
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said incident was taken place because of the defiance of 2nd accused. It is also relevant to note that either in the chief examination or in the cross examination, no convincing explanation was given by PW1 as to why PW1, without going for work, reached at the place of occurrence along with the deceased Janardhanan who is in no way connected with the previous incident and who is a stranger to the place of occurrence.
16. The above contradictions, infirmities and doubtful conduct of PW1 has to be evaluated in the background of the fact that the accused had set up the plea of self defence and they admitted their presence at the place of occurrence. According to the accused/defence, they reached at the place of occurrence to participate in the conciliation talk held at the instance of 3rd accused and when PW1 and deceased Janardhanan saw them at the spot, they attacked the accused asking whether they came to wreak vengeance in respect of the incident whereby 2nd accused assaulted PW5, the brother of PW1. Thus, on seeing the accused, PW1 after removing his shirt showed muscles and started beating them with hands and at that time deceased Janardhanan took knife and tried to cause injury on CRL.A 71/2001
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2nd accused and his brothers and at that time there was some scuffle between 2nd accused and deceased Janardhanan and in that process 2nd accused sustained injury on his shoulder. As pointed out earlier, the prosecution party and the defence were given different versions with respect to the origin of the incident. In a criminal case, the accused need not prove their case within the same parameters as that of the prosecution and prove the case beyond reasonable doubt as an unshifted and inherited burden of prosecution. Whereas the defence need not prove its case beyond reasonable doubt and to discharge their burden, they need only to make out a probable case.
17. As the outcome of the examination and evaluation of the evidence of PW1, I have already pointed out that his evidence is not free from doubt as the same contained full of contradictions and infirmities. When he was examined he had put an entirely new case with respect to the injury received by the deceased Janardhanan. 2nd accused in his statement had admitted that he was present in the scene of occurrence and incident and he had sustained an injury during the scuffle between himself and the deceased Janardhanan. But PW1 did not make any mention CRL.A 71/2001
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regarding the injury sustained by 2nd accused in the same incident though PW1 claimed that he had seen the entire incident. Ext.D8 is the accident cum wound certificate with respect to 2nd accused. In Ext.D8, the alleged history is shown as at about 11.55 a.m at Atholi at his sister's residence assaulted by Chandran. 2nd accused was admitted in the hospital on that day. PW17, the investigating officer admitted that he knew about the injury sustained by 2nd accused in the very same incident and he had collected the original of Ext.D8 from the hospital and had also questioned the doctor who issued Ext.D8 and his statement was recorded. Suffice it to say that no investigation was conducted by the investigating team as to how 2nd accused sustained injury. During the trial, no explanation was offered by the prosecution regarding the said injury. On the other hand, defence gave a plausible explanation as to how 2nd accused sustained injury. Going by the attendant circumstances, I am of the view that the defence version is more probable.
18. In this juncture it is relevant to note that it is 2nd accused who sustained injury in the scuffle. According to PW1 and the prosecution it was 2nd accused who assaulted PW5, the CRL.A 71/2001
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brother PW1 at the house of PW1's mother's sister and , that too, when the invitees of the marriage function were taking feast. As pointed out earlier, the said incident was a shame for PW1 and his family and they were very much aggrieved by the same. PW1 also stated that the above incident happened on account of the defiance of the 2nd accused. As per the prosecution evidence and the defence version, it is beyond dispute that on the date of incident there was a mediation talk proposed at the instance of the 3rd accused. On that day, after abandoning the work of that day, PW1 was waiting at the scene of the occurrence along with the deceased Janardhanan whose presence at the place of occurrence was not explained with convincing reason. Therefore, the defence version that the accused were the target of PW1 and deceased Janardhanan , cannot be ruled out. It is also relevant to note in the deposition made by PW1 to the effect that they were attacked by the accused when the accused saw them and on seeing them while they were coming from the side of the house of their sister, under a misunderstanding (emphasis supplied) that PW1 and deceased came there to wreak vengeance against 2nd accused because of the previous day incident that took place CRL.A 71/2001
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in the marriage house. From the above version of PW1 itself it is clear that the accused were not having pre-plan to attack deceased and PW1.
19. Then the question is as to how the incident started. In paragraph 29 page 27 of the judgment, the Addl.Sessions Judge observed: "But the other injuries on the deceased which were not explained will go to show that neither the prosecution nor the defence were giving true state of affairs that had transpired at the place of occurrence". From the above observation itself, it is clear that the court was not convinced with the evidence of the prosecution regarding the incident that taken place. But the learned trial Judge went to the extent to observe as follows: "So the possibility of altercation between the accused and PW1 and deceased Janardhanan prior to the stabbing incident could not be ruled out in this case. The fact that PW1 was without shirt also probabilises the case of the defence that he was preparing to do something when the accused persons came there". After making the above observation, the court further stated: "But even assuming that CRL.A 71/2001
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the incident had started at the instance of PW1 and deceased, there is no evidence adduced on the side of the defence to prove that the deceased and PW1 were the aggressors and they were armed with weapons". According to me, the above observation and finding are unwarranted and unfounded. When the prosecution witnesses failed to give a clear and correct account regarding the incident, and explanation about how 2nd accused sustained injury, the above observation and finding is highly perverse, arbitrary and illegal. The accused by filing the statement, gave an account regarding the incident which is more probable. Since the prosecution party, especially, PW1 suppressed the facts regarding the scuffle and the injury sustained by 2nd accused, it can be only possible that, but for the self defence of the accused, otherwise the net result would have been a different one. In paragraph 31 of the judgment, the trial court has observed: "Further comparing the nature of injury sustained by him (A2) with the injury sustained by deceased and PW1 it can be safely concluded that the accused had exceeded his right of private defence, even assuming that the plea of private defence alleged by CRL.A 71/2001
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second accused is true. Once he had exceeded the right of the private defence then he is not entitled to get the benefit of exercise the right of private defence and he will be liable to be convicted for his act". In the present case, even According to the prosecution, during the trial, their case is that the fatal injury on the deceased was inflicted by 4th accused and not 2nd accused. So the above observation of the trial court is contrary to the materials and evidence on record. It is also relevant to note that the point at which the defence exceeded the private defence can be decided, only by referring to the incidents preceded to the said point. When the prosecution failed to explain the injury on 2nd accused, and suppressing the prior facts, how one can come to a conclusion whether the accused exceeded the right of private defence. When the trial court itself is not satisfied with the prosecution evidence regarding the origin of the incident and convinced the possibility of altercation of the accused with PW1 and deceased Janardhanan prior to the stabbing incident, it cannot be said that the accused had exceeded the right of private defence.
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20. It is relevant to note that though no point was formulated based upon the plea of private defence set up by the accused, the court below has considered certain decisions with respect to the legal position of private defence. Shrishail Nageshi Pare v. State of Maharashtra (AIR 1985 SC 866 ) is one of the decisions considered by the court below. The above decision is not applicable in the present case. In the present case the accused have specifically set up plea of private defence in the 313 statement and have adduced evidence also to that effect. The decision in Boolineedi Venkataramaiah v. State of Andhra Pradesh.(AIR 1994 SC 76) and Khujji v. State of M.P. (AIR 1991 SC 1853) are not applicable in the present case as the factual scenario is entirely different from that decisions. The decision referred by the learned Sessions Judge in paragraph 19 i.e.,Rajesh Govind Jagesha v. State of Maharashtra (AIR 2000 SC 160), is not relevant in the present case since the applicability of Section 34 is not a question in the present case. It is relevant to note that in the present case, when PW1 was examined in the court he had stated an entirely new story deviating from his earlier version contained in Ext.P1 statement. CRL.A 71/2001
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There is no explanation as to how the deceased Janardhanan sustained injuries other than the two injuries noted in the postmortem report. So, the so called eye witness is not reliable in the present case. Apart from the above mentioned substantial change, his deposition is full of contradictions and infirmities and his evidence is not capable to instill the confidence of the Court. But the question to be considered is the consequence of non explanation of the injury on the 2nd accused, though the investigating officer is fully aware of the injuries sustained by the 2nd accused in the same incident and he had questioned the doctor who issued Ext.D8. No doubt, non explanation as to the injury and the failure to conduct investigation in this regard are highly fatal to the prosecution. Therefore, the decision in Ambika Prasad v. State of Delhi Admn. ( AIR 2000 SC 718) is not helpful to the prosecution. The factual circumstances in AIR 2000 SC 718 is also entirely different from the present case and therefore, the same is not applicable in the present case.
21. The decision referred to by the learned trial Judge in paragraph 22 viz., Kasam Abdulla Hafiz v. State of Maharashtra ( AIR 1998 SC 1451) is not relevant in the present CRL.A 71/2001
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case. In the present case, 2nd accused sustained injury and there is no explanation regrading such injury. The defence had accounted as to how the incident took place and when 2nd accused sustained injury. If that be so, in the absence of evidence showing assault by the deceased referred in the above decision is not relevant in the present case. In Pylan v. State of Kerala (1992 (2) KLT 661), this Court has held that "the prosecution has not given any explanation whatsoever for non- production of the documents relating to the injuries sustained by first and third accused. Even when PW15 was asked about them in cross examination, prosecution was not prepared to take any step to get down the document revealing the injuries sustained by first and third accused. If prosecution has a case that first and third accused have sustained injuries in the occurrence, why should the prosecution suppress that fact? It is still a riddle why the prosecution has not moved a little finger for producing the first information statement furnished by third accused on the same day of occurrence. That would certainly have given the court an opportunity to see the rival version of the same incident presented to the police on the same day. It is very strange, if CRL.A 71/2001
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not incomprehensible, that the prosecution has strained a lot in suppressing such materials. Merely examining three eye witnesses is of no use for the criminal court to come to the conclusion as to how the incident had commenced, developed and ended. Even to test the veracity of the testimony of eye witnesses the materials relating to the injuries of the accused sustained during the occurrence would be indispensable". In the present case also, the prosecution suppressed the details with respect to the injury sustained by 2nd accused and no explanation is given. Therefore, examining the sole eye witness, i.e., PW1 is of no use for the trial court to come to the conclusion as to how the incident had commenced, developed and ended. Hence, according to me, the prosecution has failed to prove its case beyond doubt.
22. In the decision in Lakshmi Singh v. State of Bihar AIR 1976 SC 2263), the Supreme Court formulated certain inferences which can be drawn by the court on the ground of non explanation of injuries sustained by the accused. According to the Honourable Supreme Court, "in a murder case, the non- explanation of the injuries sustained by the accused at about the time of the CRL.A 71/2001
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occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the
genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the
presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version
which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case".
In the decision in Balwan Singh etc. State of Haryana (JT 2005 (5) SC 351), the Apex Court has held :
"It is true that in all cases failure of the prosecution to explain injuries to accused may not be fatal, and that the consequent of failure to explain such injuries depends upon the facts and circumstances of the case, the nature of the occurrence and the nature of the injuries suffered by the accused. In this case the injuries suffered by A1 to A3 are numerous. The injuries were serious because any of the injuries on the skull could have proved fatal. The mere fact that the accused are also found to have sustained serious injuries unexplained by the prosecution does not necessarily give rise to an inference that there must have been a free fight. In the instant case, there is ample evidence on record to CRL.A 71/2001
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establish that the occurrence took place in a different manner altogether in which the accused were also injured. They were promptly examined by the doctor, and they had also lodged a first information report stating relevant facts and alleging that it was the prosecution party which was the aggressor. The motive suggested by the prosecution does not appeal, because if there was an altercation between A1 and A2 in village Juan when a request was made by PW5 to A1 to take the groom on his motor cycle to the Choupal, there appears to be no reason why the accused would have assaulted his father after returning to the village, particularly, when PW5 was not with his father. The motive as alleged by the prosecution does not appeal because it does not appear to be natural that for the conduct of his son at a different place, the appellant would return to the village and kill his father. It is well settled that while the prosecution has to prove its case beyond reasonable doubt, the defence has only to produce evidence or show material on record which probablise its defence".
23. The Honourable Supreme Court in Varkey v.State of Kerela (1971 KLT 420) has laid down the test, scope and ambit of excess of private defence. It is held:
"The apprehension is in the mind of the person exercising the right of self defence and the apprehension is to be ascertained objectively with reference to events and deeds at that crucial time and in the total situation of surrounding CRL.A 71/2001
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circumstances. Broadly stated, the right of private defence rests on three ideas; first, that there must be no more harm inflicted than is necessary for the purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence, and thirdly, the right does not commence until there is a reasonable apprehension. It is entirely a question of fact in the circumstances of a case as to whether there has been excess of private defence within the meaning of the 4th clause of S.99 of the Indian Penal Code, namely, that no more harm is inflicted than is necessary for the purpose of defence. No one can be expected to find any pattern of conduct to meet a particular case. Circumstances must show that the court can find that there was apprehension to life or property or of grievous hurt. If it is found that there was apprehension to life or property or of grievous hurt the right of private defence is in operation. The person exercising right of private defence is entitled to stay and overcome the threat". (emphasis supplied).
So on an application of the above test in the present case, it cannot be said that the accused had exceeded the right of private defence, especially, when prosecution party miserably failed to give a correct and clear account regarding the origine, development and end of the incident. But the defence case is more probable.
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24. In the light of the above decisions and discussions and on application of the dictum laid down by the above authorities in the present case, it can be seen that the evidence on record are not sufficient to fix the liability and to find out as to who is the aggressor, as the prosecution party, especially, PW1 who deliberately suppressed the material facts as to the origin of the incident and his failure to account the circumstances under which the 2nd accused sustained injury. Therefore, neither the trial court nor this court is in a position to assess the entire situation and to find out whether, even if the injuries sustained by the deceased and PW1 are taken as inflicted by the accused, the same was warranted or required for their self defence to abate the apprehension from the part of the prosecution party, cannot be decided. Thus from the facts and circumstances included in the case, it can be safely concluded that : (i) the prosecution has suppressed the genesis and origin of the incident and has not presented the true version ; (ii) the witness mainly, PW1 has miserably failed to explain , rather, he denied the injury on the 2nd accused and hence, he is lying about most material point and therefore his evidence is unreliable; (iii) the defence CRL.A 71/2001
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version which explains the injury on the accused tendered the same as more probable consequently throw doubt on the prosecution case; (iv) the accused are entitled to exercise their right of private defence to overcome the threat and therefore in the absence of any contra evidence, it cannot be said that the accused have exceeded the private defence.
25. It is also relevant to note that there is no proper explanation and convincing reasons for the presence of the deceased Janardhanan at the spot who was a stranger to the locality. The prosecution evidence does not disclose as to what happened to Janardhanan after the so called injury sustained by him. The number of injuries on the body of the deceased Janardhanan remains unexplained, even though the number of injuries accounted by PW1 is lesser than the total number of injuries. As pointed out earlier, in the F.I.Statement, it is shown as first accused is the person who stabbed the deceased. But when PW1 was examined, that liability fixed upon the 4th accused. 4th accused took the contention to the effect that he was not present even at the alleged time at the place of occurrence. In order to connect the 4th accused with the offence, the only CRL.A 71/2001
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evidence is that of PW10 whose evidence is very much relied on by the prosecution for the recovery of MO1 and MO2. It is brought on record that when PW1 was examined, there is glaring difference in the name of the colony where the house of 4th accused is situated. On a reading of the evidence of PW 10 and Ext.P8 seizure mahazar, it can be seen that the name of the colony where 4th accused residing is entirely different one. If that be so, the alleged recovery of MO-1 and M.O 2 under section 27 of the Evidence Act rendered as doubtful. So, the correctness of S.27 recovery has to be appreciated in the background of the fact that PW1 stated an entirely new story from his FI Statement and only at the time of examination in the court he had stated and implicated the 4th accused. So, the above infirmity will go against the entire prosecution case.
26. In the light of the above facts and circumstances and discussion and in view of the settled position of law discussed above, I am of the view that the prosecution has miserably failed to establish its case beyond reasonable doubt and the appellants are entitled to get the benefit of doubt. Consequently, the finding arrived on by the court below is liable to be set aside. CRL.A 71/2001
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In the result, the conviction and sentence imposed against the accused are set aside. The bail bond if any executed by the appellant/accused are cancelled and they are set at liberty. Accordingly, this appeal is allowed.
V.K.MOHANAN, JUDGE
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