K.Ramakrishnan
Unnithan Vs. State of Kerala [1999] INSC 81 (18 March 1999)
G.B.Pattanaik,
M.B.Shah PATTANAIK,J.
The
appellant and his son stood charged for offences under Sections 449, 341, 324
and 302 read with Section 34 IPC for having wrongfully restrained PW1 and
hurting him with a stick and for causing murder of deceased Kesava Pillai,
father of PW1 by stabbing him on his abdomen with a knife on 17.4.1985 at 11 P.M. The learned Additional Sessions Judge, on a thorough
discussion of the entire prosecution evidence came to hold that the prosecution
has failed to establish the charges beyond reasonable doubt and, therefore, the
two accused persons are entitled to be acquitted and accordingly acquitted them
of all the charges.
On an
appeal being carried by the State, the High Court of Kerala by the impugned
Judgment affirmed the order of acquittal passed by the learned Additional
Sessions Judge so far as the son is concerned but reversed the order of
acquittal of the appellant herein and convicted him under Section 302 as well
as under Section 324 IPC. For his conviction under Section 302 IPC, he was
sentenced to imprisonment for life and no separate sentence was passed for his
conviction under Section 324.
The
prosecution case in the nutshell is that the relationship between the accused
and the deceased Kesava Pillai was strained as the deceased had helped one Velu
Pillai with whom the accused had some property dispute. On 17.4.85 at 11 P.M. while PW1 was sitting on the varandah of a shop near
his own house, the accused-appellant and his wife passed by that way. As it was
dark, PW1 could not recognise them and enquired about their identity, whereupon
the accused-appellant used some abusive language and PW1 in turn, also abused
the appellant. On this score, there was a scuffle but on the dissuasion of the
wife of the appellant, he left the place. Few minutes later while PW1 reached
the door-step of his house, the appellant accompanied by his son (the acquitted
accused) reached there and the second accused dealt a blow on the head of PW1
with a stick and then caught hold of him and then the present appellant stabbed
him with a knife. On hearing Hullah, the sister of PW1 rushed to the scene. At
that stage when father of PW1 reached the scene of occurrence, the appellant
stabbed him on his abdomen on account of which he ultimately died in the
hospital on the next day at 11.30 A.M. Statement of PW1 was recorded at 1.15
A.M., which was treated as F.I.R., on the basis of which investigation started
and on completion of investigation, charge- sheet was submitted by the Police.
On
being committed, the two accused persons stood their trial. The prosecution
examined as many as 17 witnesses and exhibited a large number of documents of
whom PWs 1 to 3 are the eye witnesses to the occurrence. Of these eye
witnesses, PW3 is the daughter of the deceased whereas PW2 is a neighbour. PW8
is the doctor, who had examined the accused No. 1 and issued the wound
certificate. PW9 is the doctor who conducted the autopsy on the dead body of
the deceased Kesava Pillai and exhibit P15 is the post-mortem certificate. PW14
is the doctor who attended the deceased Kesava Pilla as well as PW1 in the Medical College Hospital on the night of occurrence. The defence
version as reflected in the statement of the accused-appellant under Section
313 Cr.P.C. is that there was a marriage proposal emanated from the deceased
but the same did not materialise and on that score there was an enmity. On the
date of occurrence, while the appellant and his wife had gone for a marriage
negotiation of their son, PW1 was waiting on the road. When he found that the
appellant and his wife are coming , PW1 abused them but the appellant came away
and while he reached near the house of PW1, deceased Kesava Pillai suddenly came
on the road with a knife and attacked him. The appellant attempted to escape
from such attack and caught hold of the knife and at that point of time, stones
were thrown by PW1 and his father. While the appellant had caught hold of the
hand of deceased Kesava Pillai who had a knife in his hand, a scuffle ensued
and deceased Kesava Pillai fell down and sustained the injuries on his abdomen
on that score. The further plea is that it is the acquitted accused No. 2,
seeing the scuffle, informed the Police Control Room, whereupon the Mobile
Police Vehicle came and picked up the injured PW1 and the deceased and removed
them to the hospital and PWs 2 and 3 were never at the scene of occurrence. On
the basis of the medical evidence of the doctor, who treated deceased Kesava Pillai
in the hospital and the post-mortem report, the learned Sessions Judge came to
the conclusion that deceased Kesava Pillai died as a result of penetrating
injuries sustained on his abdomen and the death is homicidal in nature.
Examining the question as to whether it is the appellant who caused the injury
on the deceased by stabbing blow with the means of a knife, the learned
Sessions Judge scrutinised the evidence of PWs 1-3 and also scrutinised the
medical evidence with relation to the injury found on the deceased as well as
the injury found on the person of PW1 and came to hold that the story of
alleged cause of injury on the occipital region of PW1 as spoken to by the eye
witnesses stand totally discredited and disproved by the evidence of PW14 and
the injury certificate Exhibit P11. The learned Sessions Judge accordingly
recorded a finding that the first part of the occurrence regarding the alleged
beating on the head of PW1 by the appellant with the stick as spoken by the
witnesses stands discredited by the evidence of PW14. The learned Sessions
Judge also rejected the contention of the defence that the non-explanation of
the injuries on the accused is fatal to the prosecution as such injuries are
superficial in nature being a linear abrasion over the left thenar and the
linear abrasion on the hypothenar eminence. But on examining the evidence of
the three eye witnesses as well the suspicious circumstances appearing in the
prosecution case, the Sessions Judge came to hold that the accused No. 2 was
never present at the scene of occurrence and he was falsely implicated upon by
the three eye witnesses. He also further found that when the witnesses have
tried falsely to implicate such person and on account of the inconsistencies
between their statements, doubt is created in the mind of the court as to the
trustworthiness of the prosecution witnesses and, therefore, it must be held
that the prosecution failed to establish the charges against the accused
persons beyond reasonable doubt. With these findings the two accused persons
being acquitted, the State preferred an appeal to the High Court. The High
Court by the impugned Judgment, affirmed the order of acquittal of accused No.
2 Sreenivasan. But on re- appreciating the evidence of the eye witnesses and
relying upon the same, came to hold that the prosecution has succeeded in
proving beyond all reasonable doubt that the accused-appellant had inflicted
stab injury on the deceased, besides inflicting injuries on PW1 and as such he
is liable for being convicted under Section 302 as well as under Section
324IPC. For such conviction he was sentenced to imprisonment for life.
Mr.
U.R. Lalit, the learned Senior Counsel, appearing for the appellant contended
that though the power of the High Court while sitting in judgment against an
order of acquittal is the same as in appeal against a conviction and the court
can re-appreciate the entire evidence on record but in case of an appeal
against an order of acquittal the court is duty bound to examine the reasons on
which the order of acquittal was based and should interfere with the order
after being satisfied that the view taken by the acquitting Judge was clearly
unreasonable. If the impugned judgment is examined from the aforesaid stand
point, it would appear that the High Court has not adverted to the reasons
given by the Sessions Judge in recording the order of acquittal and, therefore,
reversal of an order of acquittal by the High Court should be interfered with.
Mr. Lalit also further contended that the very fact that the son of the
appellant was falsely implicated by the eye witnesses would itself discredit
the witnesses and on such discredited version, the role ascribed to the
appellant could not have been relied upon. Mr. Lalit further urged that though
the learned Sessions Judge came to the positive conclusion after a thorough
analysis of the evidence that the defence plea was more probable but the High
Court never focussed its attention to the same and has not discussed any thing
on that score, which approach vitiates the impugned judgment.
Mr.Lalit
also urged before us that the prosecution not having come forward with a true
and correct version of the occurrence, the accused is entitled to the benefit
of doubt and, therefore, the order of acquittal should not have been interfered
with by the High Court. Lastly, Mr. Lalit urged that even assuming the blow
given by the appellant on the deceased can be said to have been established
beyond reasonable doubt but that would not constitute the offence under Section
302 and at the most the offence would be one under Part II of Section 304.
The
learned counsel appearing for the respondent on the other hand submitted that
it is too well settled that the High Court while sitting in an appeal against
an order of acquittal can re-appreciate the entire evidence on record and
having done so and having found the witnesses to be reliable, there is no
infirmity with the conviction of the appellant under Section 302 IPC. According
to the learned counsel for the respondent, the substratum of the prosecution
story that the appellant gave a fatal blow on the vital part of the deceased on
account of which the deceased ultimately succumbed is established through the
cogent and consistent evidence of the three witnesses and such evidence is
corroborated by the medical evidence of the doctor who treated the deceased at
the hospital as well as the doctor who conducted the autopsy on the dead body
and, therefore, the conclusion of the High Court that the prosecution case
against the appellant has been proved beyond reasonable doubt is unassailable
and cannot be with. The plentitude of power available to the court, hearing an
appeal against acquittal is the same as that available to a court hearing an
appeal against an order of conviction. But however the court will not interfere
solely because a different plausible view may arise on the evidence. In a case
of murder, if the reasons given by the trial court for discarding the testimony
of the eye witnesses are not sound, then there should be no hesitation on the
part of the High Court in interfering with an order of acquittal. If the
Judgment of the trial judge was absolutely perverse, legally erroneous and
based on wrong testimony, it would be proper for the High Court to interfere
and reverse an order of acquittal. Having examined the judgment of acquittal
passed by the learned Sessions Judge and the impugned Judgment of the High
Court, reversing the said judgment of acquittal and on scrutinizing the
evidence of the three eye witnesses, though we find some substance in the
grievance of Mr. Lalit, appearing for the appellant that the High Court has not
adverted to all the reasons given by the trial Judge for according an order of
acquittal, but it is difficult for us to come to hold that the High Court
exceeded its jurisdiction and the parameters fixed for interference with an
order of acquittal. We find the approach of the learned Sessions Judge in
recording an order of acquittal was not proper and the conclusion arrived at by
the Sessions Judge on several aspects is unsustainable. Even though, the eye
witnesses appear to have exaggerated their version and improved upon their
version in giving a role to the accused No. 2 for which an order of acquittal
passed by the Sessions Judge has been affirmed by the High Court but to bring
home the charge of murder against the appellant on the ground that he gave a
stabbing blow on the deceased on a vital part by means of a knife, while he
came out of his house has been consistently narrated by the three eye
witnesses. There has been no embelishment or exaggeration of these eye
witnesses so far as the role ascribed to the appellant from their previous
version to the Police is concerned. Thus the basic prosecution case as unfolded
through the testimony of the aforesaid three witnesses is fully corroborated by
the medical evidence of the two doctors and, therefore, the learned Sessions
Judge was not justified in discarding this part of the prosecution case and in
acquitting the appellant and the High Court, therefore, was fully entitled to
re-appreciate the evidence of these witnesses and record its own conclusion on
the question whether the evidence of the eye witnesses that the appellant gave
the stabbing blow on the deceased can at all be sustained or not. We have
ourselves scrutinized the evidence of the three eye witnesses and we are of the
considered opinion that the reasons adduced by the trial court for discarding
their testimony were not at all sound. On the other hand, the evaluation of the
evidence made by the trial court was manifestly erroneous and, therefore, it
was the duty of the High Court to interfere with an order of acquittal passed
by the learned Sessions Judge. In this view of the matter, we are unable to
accept the ultimate submission of Mr. Lalit that the High Court exceeded its
limit in interfering with an order or acquittal passed by the learned Sessions
Judge.
The
question then remains for consideration is whether on the materials on record
can it be said that the appellant gave the blow on the deceased with the
intention of causing murder of the deceased so as to be convicted under Section
302 IPC. The eye witness account of the three eye witnesses is to the fact that
when PW1 cried aloud, his sister rushed there and at that point of time his
father, the deceased came out, opening the door and asked as to why his son is
being beaten up and then the appellant stabbed the deceased on his abdomen with
the knife. The post-mortem report of the deceased indicates existence of a
sutured incised wound inverted "L" shaped on the left side of the abdomen,
the vertical limb was parallel to the midline, 4 cms. in length and the
horizontal limb from its upper and measured 3 cms. and was placed 1.3 cms. to
the left of midline and the junction of the two limbs were at the level 25 of
umbilicus.
The
wound entered the abdominal cavity. The doctor PW14, who was working as tutor
in surgery, Medical College, Trivandrum and was in the casualty on 17.4.85,
in his evidence stated that the deceased had an incised wound 4 cms. long below
the umbilicus, left to the midline of the body with a part of the intestine
protruding out and that is the only injury. The doctor who conducted the
autopsy, PW9 in his evidence also stated that though there are three injuries on
the deceased as per the post-mortem report, but injury Nos. 1 and 3 are
surgical injuries and injury No. 2 is the inflicted injury. Thus it is
established beyond reasonable doubt that the appellant had given one blow but
the blow no-doubt was quite severe, as a result of which the intestines had
protruded out . It is however crystal clear that the appellant had no animosity
against the deceased and he was involved because of the altercations with PW1.
The scenario in which the appellant has been stated by the eye witnesses to
have given one blow on the deceased, it is difficult for us to hold that he
gave the blow in question either with the intention of causing murder of the
deceased or he can have said to have the requisite knowledge that the death would
otherwise be the inevitable result. In such a situation, even on accepting the
prosecution case we hold that the accused did not commit the offence under
Section 302 but under part II of Section 304 IPC. We accordingly, set aside the
conviction of the appellant under Section 302 IPC and instead, convict him
under Section 304 Part II. The incident is of the year 1985 and more than 13
years have elapsed. The accused is on bail pursuant to the orders of this court
dated 6th February,
1992. Mr. Lalit,
appearing for the accused-appellant stated that he has already undergone
sentence of about four years. In such circumstances, for his conviction under
Section 304 Part II IPC , we sentence him to the period already undergone. His
conviction under Section 324 IPC remains unaltered but no separate sentence is
being awarded. This Criminal Appeal is disposed of accordingly. The bail bond
furnished by the appellant stands discharged.
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