Vs. State of Kerala  Insc 379 (6 July 2006)
Pasayat & Lokeshwar Singh Panta Arijit Pasayat, J.
calls in question legality of the judgment rendered by a Division Bench of the Kerala
High Court upsetting the order of acquittal passed by learned Sessions Judge Kasaragod,
Kerala. Appellant faced trial for alleged commission of offence punishable
under Section 302 Indian Penal Code, 1860 (in short the 'IPC'). According to
the prosecution on 23.12.1994 at about 11.15 a.m. he stabbed one Narayanan (hereinafter referred to as the 'deceased') to
death at the private bus stand. The High Court by the impugned judgment held
that the order of acquittal passed by the trial court was not proper and the
appellant was convicted for the offence punishable under Section 304 Part I IPC
and sentenced to undergo seven years rigorous imprisonment. The prosecution
version as unfolded during trial was as follows :
23.12.1994 at 11.15
a.m. the accused
stabbed deceased to death at the private bus stand, Kanhangad. On Ext.P1
complaint of H.R. Ashokan (PW1) and V.K. Raghavan (PW 9), Sub Inspector of
Police, Kanhangad Police Station, registered Ext. P.9 F.I.R. in Crime No. 648
of 1994. The accused had been taken to the police station by PW1 and another,
from whom MO1 dagger and MO2 sheath were seized under Ext.P2 mahazar, which was
attested by K. Kanna (PW4), who was allegedly an eye witness. PW 9 also visited
the scene of incident where PW4 gave the details. P. Habib Rahiman (PW10),
Circle inspector took over the investigation at about 2.45 p.m. on the same day. He held inquest over the dead body
from the mortuary of the District Hospital, Kanhangad and gave his findings in Ext.P.11, inquest
report, under which MOs.3 and 4, clothes worn by the deceased, were seized. Dr.
C.V. Jayarajan (PW8), Asst. Surgeon, District Hospital, Kanhangad, conducted the
postmortem and he set out his findings in Ext.P8 postmortem certificate. The
accused was arrested, produced before the Magistrate and he was remanded.
were questioned, statements recorded and final report was filed against him for
the aforesaid offence. He pleased not guilty to the charge, whereupon
prosecution examined ten witnesses, marked sixteen exhibits and MOs. 1 to 4.
When questioned under Sections 313 of the Criminal Procedure Code, 1973 (in
short the 'Cr.PC') he denied the incident as alleged, gave his own version and
said that the deceased Tharingil Sunny (PW 2) and others never let him live in
peace, that on 19.8.1994they trespassed into his house, assaulted him, his wife
and children. He was hospitalized for treatment of the injuries sustained. On
his complaint a case was also registered against them. He had to leave the
place and take up residence in another place.
ill-fated day he had come to Kanhangad for purchasing some articles for his
pilgrimage to Sabarimala and medicines for his child. At the bus stand the
seven accused persons, against whom he had filed complaint, along with Aravindakshan
(PW3) and one Pappan, surrounded and attacked him. The deceased held him and he
was assaulted by one Kutty. He tried to wriggle out to escape, when PW2 tried
to stab him the blow accidentally fell upon the deceased. He denied that he
inflicted injuries upon him as alleged, and maintained his innocence. He
further stated that the local police was inimical towards him following a
complaint filed by him against the then C.I. and three police constables. The
investigation was one sided and biased. Exts. D1 to 3 were marked, but no
witness was examined in defence.
trial court after consideration of the evidence brought on record came to hold
that so far as the eye witnesses PWs 2 and 3 were concerned, there was great
deal of discrepancy in their version about the incident.
who was stated to be an eye witness did not support the prosecution case.
Therefore, it was held that even if the discrepant part of his evident is
eschewed then also his evidence was not credible and did not inspire
the evidence of PW1 did not inspire confidence.
trial court observed that on a conjoint reading of the evidence of PWs 2 and 3
it is clear that their version improbablised the scenario described by the
conduct of PW3 was also indicated to be highly suspicious. It was further noted
that a friend of PW3, i.e. Pappan (father of Sasi and Saji) who was also stated
to be standing by his side also resorted to the same unusual conduct i.e.
leaving the deceased who had allegedly received knife blows even without caring
to ascertain as to what had happened. Though there cannot be any universal
standard as to how a witness would react, but in this case even after the
accused had left the place of occurrence they did not care to ascertain as to
what had happened to the deceased.
this itself is not a determinative factor, the trial Court has rightly
considered this to be a suspicions factor.
trial Court also referred to various other circumstances which clearly ruled
out the presence of PWs 2 and 3.
the deficiencies in the prosecution evidence the trial Court directed
acquittal. In the appeal filed by the State, the High Court came to hold that
the discrepancies as pointed out by the trial Court were trivial and so called
discrepancies were immaterial and insufficient to disbelieve them.
Unfortunately the High Court did not analyse the evidence and in a very cryptic
manner discarded the conclusions of the trial Court.
counsel for the appellant submitted that the approach of the High Court is
clearly erroneous. The High Court has not even indicated any reason as to why
it discarded the conclusions of the trial Court and it did not even refer to
the conclusions arrived at by the trial court to direct acquittal.
response, learned counsel for the State submitted that the High Court has taken
an overall view of the matter. It is well settled that minor discrepancies in
evidence cannot be a ground to discard the prosecution version.
is no embargo on the appellate Court reviewing the evidence upon which an order
of acquittal is based.
the order of acquittal shall not be interfered with because the presumption of
innocence of the accused is further strengthened by acquittal. The golden
thread which runs through the web of administration of justice in criminal
cases is that if two views are possible on the evidence adduced in the case,
one pointing to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted. The paramount
consideration of the Court is to ensure that miscarriage of justice is
prevented. A miscarriage of justice which may arise from acquittal of the
guilty is no less than from the conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon the appellate Court to
re-appreciate the evidence where the accused has been acquitted, for the
purpose of ascertaining as to whether any of the accused really committed any
offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567)]. The
principle to be followed by appellate Court considering the appeal against the
judgment of acquittal is to interfere only when there are compelling and
substantial reasons for doing so. If the impugned judgment is clearly
unreasonable and relevant and convincing materials have been unjustifiably
eliminated in the process, it is a compelling reason for interference. These
aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v.
State of Maharashtra (AIR 1973 SC 2622), Ramesh Babulal Doshi
v. State of Gujarat (1996 (4) Supreme 167), Jaswant
Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore
Jha v. State of Bihar and Ors. (2003 (7) Supreme 152),
State of Punjab v. Karnail Singh (2003 (5) Supreme
508 and State of Punjab v. Pohla Singh and Anr. (2003 (7)
on the touchstone of the principles indicated above, the High Court's judgment
is clearly indefensible. By making observations in an abstract and general
manner it concluded that the discrepancies were immaterial, without even
discussing the factors which weighed with the trial court to hold that the
prosecution evidence was not cogent and credible. Therefore, the order of
acquittal should not have been set aside in the manner as done.
appeal is allowed. The judgment of the High Court is set aside. The appellant
is on bail, bail bonds shall stand cancelled.