Sethu Madhavan Nair & Ors Vs. The
State of Kerala  INSC 141 (9 August 1974)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1974 AIR 1857 1975 SCR (1) 673 1975
SCC (3) 150
F 1976 SC 832 (6) R 1977 SC 785 (12)
Code of Criminal Procedure S. 417 -Appeal
under Practice and Procedure Scope of power of High Court to review trial
The appellants were tried for the offence of
murder but were acquitted on the ground that there was no reliable and convincing
evidence against them. The High Court reversed the judgment of acquittal and
convicted and sentenced them.
On the question whether the High Court was in
error in reversing the finding of acquittal recorded by Sessions Judge.
Allowing the appeal.
Held : The High Court was in error in
reversing the judgment of the court. The Sessions Judge had given convincing
and cogent reasons in support of his conclusions. The view taken by him can, by
no means, be described as unreasonable. Even if the High Court felt that on the
material on record a different view was also possible, that fact did not
justify interference with the judgment of acquittal. If two conclusions can be
reached on the basis of the evidence on record the High Court should not
interfere with the finding of acquittal recorded by the trial court. [679-D] In
an appeal under s. 417 Cr. P.C. against an order of acquittal, the High Court
has full power to review at large the evidence on which the order of acquittal
was founded and to reach the conclusion that upon the evidence the order of
acquittal should be reversed. No limitation should be placed upon that power
unless it be found expressly stated in the Code, but in exercising the power
conferred by the Code and before reaching its conclusion upon fact the High
Court should give proper weight and consideration to such matters as (1) the
view of the trial judge as to the credibility of the witnesses; (2) the
presumption of innocence in favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at his trial; (3) the right of
the accused to the benefit of any real and reasonable doubt; and (4) the
slowness of an appellate court in disturbing a finding of fact arrived at by a
judge who had the advantage of seeing the witnesses.
The High Court should also take into account
the reasons given by the court below port of its order of acquittal and must
express its reasons in the judgment which led it to hold that the acquittal was
not justified. Further, if two conclusions can be based upon the evidence on
record, the High Court should not disturb the finding of acquittal recorded by
the trial court. It would follow as a corollary from that, that if the view
taken by the trial court in acquitting the accused was not unreasonable the
occasion for the reversal of that view would not arise. [678. H 679C]:
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 16. of 1971.
Appeal from the Judgment and Order dated 15th
December, 1970 of the Kerala High Court in Crl. A.No. 256 of 1970.
K. R. Kunhirama and A. S. Nambiar, for the
K. T. Harindernath and A. G. Puddssery, for
The Judgment of the Court was delivered by
KHANNA, J. Sethu Madhavan Nair and 12 others were tried in, the court of the
learned Sessions Judge Palghat for offences under sections 148 and 302 or in
the alternative under section 302 read with 674 section 149 Indian penal Code
and were acquitted. On appeal by .the State, the Kerala High Court reversed the
judgment of acquittal and convicted the accused tinder section 302 read with
section 149 Indian Penal Code and sentenced each of them to undergo
imprisonment for life. The 13 accused thereafter filed the present appeal
against ..the judgment of the High Court.
Ananthakrishnan deceased was a landowner of
village Thannisseri. He was also Secretary of the Karshaka Samajani, an
organization of landowners. The accused are workers of the local Marxist
,Communist Party. About one or two months before the present occurrence, an
agitation had been started by Karshaka Thozhilali Union, which was affiliated
to the Marxist Communist Party, for the enhancement of wages payable to
agricultural labourers. As a result of that agitation, the landowners found
difficulty in conducting their agricultural operations. The relations between
the landowners and the Marxist Communist Party consequently became strained. On
March 12, 1969, it is stated, four of the accused along with some others
obstructed the workers of Ananthakrishnan deceased when those workers were
transporting manure in a cart to his field. The deceased filed a complaint
under sections 148 and 341 Indian Penal ,Code before the District Magistrate
against those persons.
As there was strike and picketing by the
Marxist workers, Ananthakrishnan deceased and his brother Velunni (PW 1)
addressed an application to the District Collector on April 11, 1969 requesting
that police protection might be given to willing workers and others whom they
might employ from neighbouring areas for agricultural work. A writ petition was
also filed in the High Court by the deceased for directing the authorities to
provide protection to him and his workmen in carrying on agricultural work. on.
April 18, 1969 Sub Inspector Damodara Menon (PW 12) went to the village of the
parties to settle a dispute between the deceased and the members of the Marxist
The Sub Inspector on that occasion recovered
an unlicensed revolver which Ananthakrishnan deceased had thrown into a field.
A case was thereupon registered against the deceased.
Ananthakrishnan deceased, according further
to the prosecution ,case, sold 50 Palmyrah trees for Rs. 3,000 to PW Krishnan
of village Parli. Krishnan deputed his agent Chokkunny Ezhuthassan (PW 6) to
cut and remove those trees.
On. April 18, 1969 Chokkunny Ezhuthassan
accompanied by some wood cutters went to cut and remove the aforesaid trees but
they were prevented from doing so by the Harijans as according to those
Harijans a bund had been declared on that day in connection with the agitation
started by the Karshaka Thozhilali Union. Chokkunny was also told to come after
two days for cutting the trees.
On the morning of April 20, 1969,
Ananthakrishnan deceased accompanied by his elder brother Velunni PW went to
the house of Joy (PW 5) as a function had been arranged at that house in
connection with the sending of Joy's wife for delivery. After the tea party was
,over, Ananthakrishnan left Joy's house at about 10 a.m. saying that 675 he
wanted to see whether the person to whom Palmyrah trees had been sold had come
to cut those trees. Velunni continued to stay in Joy's house. Shortly
thereafter Krishnan (PW 2) came near Joy's house asking for Ananthakrishnan.
Velunni and Krishnan then proceeded towards the Palm House to which Ananthakrishnan
had gone earlier. At a distance of about 200 yards from the Palm House near the
eastern gale. Velunni and Krishnan saw a large number of persons holding
sticks. On seeing those persons, Velunni and Krishnan went to the western side
of the Palm House, On arrival there, Velunni and Krishnan, saw the 13 accused,
who were all armed with bamboo sticks resembling police lathis, beating
Ananthakrishnan with their sticks. Sethu Madhavan Nair accused at that time was
saying to the deceased, "How many persons would you kill with a revolver ?
Would you not withdraw the case when. asked ?".
Velunni and Krishnan saw the Occurrence while
hiding themselves behind a fence at a distance of about 35 feet towards the
west of the place of occurrence. After the beating had continued for six or
seven minutes, Sethu Madhavan Nair accused cried a halt saying that Ananthakrishnan
was dead. The accused then left that place.
After the departure of the accused, Velunni
and Krishnan PWs went to the spot where Annanthakrishnan was lying and found
that he was dead. Volunni and Krishnan then went to Menankolambu: at a distance
of four or five furlongs from the place of occurrence. Krishnan stayed there,
while Velunni went from that place to Koduvayur. Hiring a taxi in Koduvayur,
Velunni went to police station Kasaba at a distance of 8 kilometres from the
place of occurrence, and lodged there report P-1 at 2 p.m.
After the registration of the case. Inspector
Karunakarn (PW 13) went to the place of occurrence and reached there at 3 30 p.
m. The Inspector prepared the inquest report. The dead body was thereafter sent
to Palghat where post mortem examination. was performed by Dr. V. S. Chandran
at 9-20 a.
m. on April 21,.1969. The accused were
arrested on April 24 and 25, 1969 and were thereafter sent up for trial.
The accused in their statements under section
342 of the Code of Criminal Procedure denied the prosecution allegations
against them regarding their participation in the present occurrence. No
evidence was produced in defence.
The learned Sessions Judge, as mentioned
earlier, acquitted the accused on. the ground that there was no reliable and
covincing evidence against them. On appeal the High Court disagreed with theSessions
Judge and came to the conclusion that the 13 accused were guilty of the offence
under section 302 read with section 149 Indian Penal Code.
In appeal before us Mr. K R. Kunhirama Menon
on behalf of the appellants has assailed the evidence adduced by the
prosecution and H has contended that it is of a most unsatisfactory character
for founding thereon the conviction of the accused. it has been further urged
by Mr. Menon that the High Court was in error in. reversing the finding 676 of
acquittal recorded by the Sessions Judge. As against that,. Mr. K. T. Harindra Nath
has canvassed for the correctness of the judgment of the High Court.
It cannot be disputed that a large number of
injuries were caused to Ananthakrishnan decreased on April 20, 1969 near the
Palni House as a result of which he died. Dr. Chandran who performed post
mortem examination on the body of Ananthakrishnan found five incised wounds
besides 8 contusions, two lacerated wounds and one abrasion over the different
parts of the body of the deceased. The five incised wounds were as under :
"1. An incised wound 3 cm x 5 cm x .25
cm oblique over the right parietal region.
2. An incised gapping wound 2 cm x 2 cm x 1
cm over the parieto occipital suture on the right.
3. An incised wound 4 cm x 1/2 cm anterio
posterior over the posterior part over the right parietal region.
4. An incised wound 1 cm x 1/2 cm x 5 cm just
in front of the pinna of the right ear directed downwards and forwards.
5. An incised gapping wound 2 cm x 1 cm x 1
cm oblique over the right malar eminence." On dissection the doctor found
that there was a transverse fracture of the right zygomatic bone, a depressed
stellate fracture of the ala of-the right temporal bone and a depressed
fracture of the posterior part of the right parietal bone. There was also a
fracture of the right humerus. The injuries, according to the doctor, were
sufficient to cause death in the ordinary course of nature.
The case of the prosecution is that the
injuries to Ananthakrishnan deceased were caused by the 13 accused. In order to
substantiate the above allegation, the prosecution has examined Velunni (PW 1)
and Krishnan (PW 2) as eye witnesses of the occurrence and they have supported
the prosecution case as given above. It is upon the evidence of these two eye
witnesses that the High Court has based the conviction of the accused. After
having been taken through the evidence of these two witnesses, we find the same
to be far from convincing. We are further of the view that the learned Sessions
Judge gave cogent grounds for rejecting the testimony of these witnesses. The
High Court, in the circumstances, should not have reversed the well reasoned
judgment of the trial court.
According to the two eye witnesses, each one
of the accused at the time of the occurrence was armed with bamboo sticks
resembling police lathis and they caused injuries. to the deceased with those
sticks. Dr. Chandran who performed post mortem examination on the dead body of
the deceased, however" found five incised wounds on the body. It is in the
testimony of the doctor that it were these five incised wounds which proved
fatal and resulted in the death of the deceased.
677 Although Dr. Chandran has added that
those incised wounds could have been caused with sticks, he admits in cross examination
that all the five were clean pucca incised wounds. Dr. Chandran expressed his
disagreement with the view that an injury caused on the bony part of the body
with blunt type weapon could not cause a clean pucca incised wound. The learned
Sessions Judge who was of the view that the five incised wounds had been caused
by sharpened weapon rejected this part of the statement of the doctor and
relied upon the following observations on page 225 of Modi's "Medical
Jurisprudence and Toxicology, Seventeenth Edition:
"Occasionally, on wounds produced by a
blunt weapon or by a fall the skin splits and may look like incised wounds when
inflicted on tense structures covering the bones, such as the scalp, eyebrow,
illiac crest, shin, perineum etc., or by a fall on the knee or elbow when the
limb is flexed. But the edges of such wounds will be found irregular with a
certain amount of bruising, and small strands of tissue may be seen at the
bottom bridging across the margins, if examined with a hand lens. In the case
of wounds of the scalp the hairbulbs will be found crushed, if they are
inflicted with a blunt weapon, but will be found cut, if produced by a cutting
weapon." In the High of the above observation, we find no infirmity in the
finding of the learned Sessions Judge that the five clean pucca incised
injuries which were found on the body of the deceased had been caused by
sharpedged weapon and not by sticks. Dr. Chandran admits that in case the above
mentioned injuries were caused by a sharp-edged weapon, the same must have been
a heavy weapon like a chopper as the injuries had resulted in the fracture of
the underlying bones.
As regards the identity of the culprits,
Velunni PW has stated that he identified the culprits by looking at their faces
during the course of the occurrence. Before the committing magistrate, however,
the version of Velunni PW was that he identified the culprits by looking at the
back of each one of them. Velunni also added in his statement before the
committing magistrate that he could only see the back of each one of the
accused at the time of the occurrence. So for as Krishnan (P W2) is concerned
he deposed that he had known only two of the accused for five or six years
before the present occurrence but did not know the remaining 11 accused.
Krishnan added that he had seen those 11 accused once before the present
occurrence when he called at the office of the Communist Party. Krishnan was
then confronted with his statement made before the police.
According to that statement, Krishan had no
acquaintance with the persons who caused injuries to the deceased. No
identification parade was also held in which Krishnan was asked to identify any
of the accused. The learned Sessions Judge in view of the above came to the
conclusion that the evidence regarding the identity of the culprits was not
satisfactory. We find nothing unreasonable in the above view.
The learned Sessions Judge also expressed the
opinion that the assault on the deceased took place not at 1 1 a.m. as stated
by Velunni 11--M185 Sup. CI/75 678 and Krisnan PWs but before 9-30 or in any
case before 10 a.
m. Reliance in this context was placed upon
the evidence of Chokkuny (PW 6). Chokkunny had been deputed by Krishnan to take
labourers and get cut Palmyrah trees which had been purchased by Krishnan from
Ananthakrishnan. Chokkunny has deposed that at about 10 a.m. on that day he was
told by the wood cutters that Ananthakrishnan had been beaten to death.
Chokkunny was also confronted with his
statement made before the police. The learned Sessions Judge concluded from
that statement that Chokkunny had learnt about the death of the deceased from
others at about 9.30 a.m. The High Court took the view that the above mentioned
time did not relate to the moment when Chokkunny received information of the
death of the deceased but to the time when the deceased had gone alone towards
the place of occurrence. The police statement of Chokkunny in this respect is
not very clear. Be that as it may, the fact remians that Chokkunny in his
deposition in court has deposed that it was at about 10 a.m. that the learnt of
,the death of Ananthakrishnan deceased. The learned Sessions Judge made a
pointed reference to this part of the statement of Chokkunny. The High Court in
the course of its judgment, however, did not deal with this aspect of the
matter. The learned Sessions Judge also sought support for the conclusion that
the occurrence had taken place before 9-30 or 10 a.m. from the evidence of Dr.
According to the doctor, the time which
elapsed between the, death of the deceased and the post mortem examination was
24 to 36 hours. The post mortem examination was performed at 9 20 a.m. on April
21, 1969. In coming to that opinion, the doctor referred to the fact that he
noticed blisters and peeling all over the back off the trunk. The doctor also
noticed signs of decomposition. In view of the testimony of Chokkunny and Dr.
Chandran PWs, we are of the opinion that the learned Sessions Judge had
reasonable ground for arriving at the conclusion that the assault on the
deceased took place not at 11 a.m but earlier than 10 a.m. and that Velunni and
Krishnan did not witness the occurrence when they arrived near the Palm House
at about 1 1 a.m. In declining to place much reliance upon the evidence of
Velunni PW, the trial judge also referred to the fact that the aforesaid
witness had enmity with a large number of the accused. Another circumstance
which also affected the veracity of the statement of Velunny PW was that though
he disclosed in court that only the 13 accused had caused injuries to the
deceased, the version given by him in the first information report was that the
injuries had been caused by others besides the 13 accused.
in an appeal under section 417 of the Code of
Criminal Procedure against an order of acquittal, the High Court has full power
to review at large the evidence on which the order of acquittal was founded and
to reach the conclusion that upon the evidence the order of acquittal should be
reversed. No limitation should be placed upon that power unless it be found
expressly stated in the Code, but in exercising the power conferred by the Code
and before reaching its conclusion upon fact the High Court should give proper
weight and consideration to such matters as (1) the view of the trial judge as
to the credibility of 679 the witness; (2) the presumption of innocence in
favour of the accused, a presumption certainly not weakened by the fact that he
has been acquitted at his trial; (3) the right of the accused to the benefit of
any real and reasonable doubt; and (4) the slowness of an appellate court disturbing
a finding of fact arrived at by a judge who had the advantage of seeing the
witnesses. The High Court should also take into account the reasons given by
the court below in support of its order of acquittal and must express its
reasons in the judgment which lead it to hold that the acquittal is not
justified. Further, if two conclusions can be based upon the evidence on
record, the High Court should not disturb the finding of acquittal recorded by
the trial court. It would follow as a corollary from that that if the view
taken by the trial court in acquitting the accused is not unreasonable, the
occasion for the reversal of that view would not arise.
Keeping in mind the principles enunciated
above, we are of the opinion that there was no sufficient ground for the High
Court to reverse the judgment of the trial court whereby it acquitted the 13
accused. Learned Sessions Judge had given convincing and cogent reasons in
support of the conclusions at which he arrived. The view taken by him can by no
means be described as unreasonable. Even if the High Court felt that on the
material on record, a different view was also possible that fact, in our
opinion, did not justify interference with the judgment of acquittal. If two
conclusions can be reached on the basis of the evidence on record, the High
Court, as already mentioned above, should not interfere with the finding of
acquittal recorded by the trial court.
We are, therefore, of the view that the
learned Judges of the High Court were in error in reversing the judgment of the
trial court whereby it had acquitted the accused. We accordingly accept the
appeal, set aside the judgment of the High Court and restore that of the trial
court whereby the accused had been acquitted.