State v. Choni Yohannan — 1950 DIGILAW 17 (KER)

Judgment :- 1. These two appeals are presented on behalf of the State by the Public Prosecutor from an order of acquittal made by the learned Sessions Judge of Quilon in S.C. No. 11 of 1124. There were two accused in the case. They are Choni Yohannan and Choni Chacko who are brothers. They were charged with the offence of murder under Ss. 301 and 104 of the Travancore Penal Code. The learned Sessions Judge has found the accused not guilty and has acquitted them and it is from this judgment of acquittal that the present appeals are preferred at the instance of the State in respect of each of the accused persons acquitted by the Court below. 2. In the course of arguments a question was raised as to the power of this court to interfere in an appeal from an order of acquittal as in the present case. The learned Public Prosecutor invited the attention of the court to the views expressed in the case reported in 1949 T.L.R. 191, which according to him are inconsistent with the provisions of law, and therefore deserve to be overruled. On going through this decision, we find that the observations made by the learned judge who wrote the judgment in that case which are intended to limit the power of the High Court in an appeal like the present are obiter dicta and as such they have not the force of a decision which needs reconsideration. My learned brother was a party to that decision, but the judgment was written by the judge with whom he was sitting. He did not share the views expressed in the obiter dicta; at the same time he did not feel called upon to express dissent, since the observations were, in his judgment really beside the point and not necessary for arriving at a decision in that case. He is in full agreement with the views that are expressed in this judgment. 3. We may state at the outset that the obiter dicta in the judgement in 1949 T.L.R. 191 which purport to restrict the powers of this court to interfere in appeal from an order of acquittal are based upon an old decision of the Allahabad High Court reported in Empress of India v. Murari, I.L.R. 4 All. 148. 3. We may state at the outset that the obiter dicta in the judgement in 1949 T.L.R. 191 which purport to restrict the powers of this court to interfere in appeal from an order of acquittal are based upon an old decision of the Allahabad High Court reported in Empress of India v. Murari, I.L.R. 4 All. 148. The views of Straight J. in that decision were adopted by the learned judge who wrote the judgment in 1949 T.L.R. 191. These views did not prevail in Allahabad. They were dissented from and practically overruled by a Full Bench of that Court in the case reported in Emperor v. Sheo Janak Pandey, I.L.R. 56 All. 354. The Full Bench held that although the trial court was in a better position to judge of the credibility of the witnesses examined before it and therefore great weight should be attached to its view, if the appellate court is fully convinced that the conclusion of the trial court was clearly wrong and was contrary to the weight of the evidence, it would be justified in setting aside the order of acquittal. It also held that to arrive at a different conclusion on a question of fact, the appellate court need not necessarily be satisfied that the trial court had been, in the words of Straight, J. "incompetent, stupid or perverse or has come to an unreasonable or distorted conclusion or has obstinately blundered." The question came up for consideration before the Judicial Committee of the Privy Council in A.I.R. 1934 P.C. 227 when Lord Russel of Killonen adopted a similar view. Ss. 345, 346, 350 of the Travancore Code of Criminal Procedure are similar in wording to the corresponding sections of the Code of Criminal Procedure in India and consequently the views expressed in that decision may well apply to a case like the present arising in this State. The Board observes that the corresponding sections in the Criminal Procedure Code "give to the High Court full power to review at large the evidence upon which an order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed. The Board observes that the corresponding sections in the Criminal Procedure Code "give to the High Court full power to review at large the evidence upon which an order of acquittal was founded and to reach the conclusion that upon that 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 the conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views 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 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". These views have been quoted with approval in a later decision of the Board reported in AIR 1950 PC 30. There, as in the present case, the trial court disbelieved eight eye witnesses of the occurrence, but the High Court took the view that there was no reason for disbelieving their evidence, although there was certainly a suspicious uniformity in matters of detail in the evidence of all these witnesses. The Board held that in spite of this, there was much evidence on the record to show that it was the appellant who struck the fatal blow and that "the judges of High Court are entitled to act upon this evidence and it is impossible to say that there has been any miscarriage of justice which would justify intervention by His Majesty in Council". In another decision of the Privy Council reported in 50 Calcutta Weekly Notes 1, Lord Thankerton in delivering the judgment of the Board adopted the views expressed by Lord Russel in Sheo Swaroop v. The King Emperor (L.R. 61 I.A. 393). His Lordship referring to the judgment of Lord Russel, observed that "there really is only one principle in the strict use of the word laid down there. His Lordship referring to the judgment of Lord Russel, observed that "there really is only one principle in the strict use of the word laid down there. That is that the High Court has full power to review at large all the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed". In these circumstances, we would like to make it clear that the obiter dicta in the judgment of Sanakaranarayana Iyer, J. in the case reported in 1949 TLR 191 should not be taken as describing correctly the powers of interference of the High Court in an appeal from an order of acquittal. The provisions of S. 346 of the Travancore Criminal Procedure Code expressly state that an appeal from an order of acquittal may lie on a matter of fact as well as on a matter of law. S. 350 describes the powers that can be exercised by the appellate Court. Cl. (a) says that it can "in an appeal from an order of acquittal, reverse such order and direct that further enquiry be made or that the case be retried or committed for trial as the case may be or find him guilty or pass sentence on him according to law". There is no restriction imposed upon the appellate court in dealing with an order of acquittal on a question of fact and consequently we have no hesitation in holding, with great respect, that the judgment of the Judicial Committee of the Privy Council pronounced by Lord Russel in the case reported in A.I.R. 1934 PC 227 contains the principles that should guide our courts in considering whether a finding of acquittal should be reversed or not. 4. The facts of the case before us may be briefly narrated. The scene of occurrence was the junction of two roads near the Kottarakkara market. The two accused owned a bullock cart and they carried on a petty trade in eggs and other goods. Their system of business was to go from their place of residence to the Parakot market which is generally held on Mondays and Thursdays every week, purchase eggs and other articles from the market, return to Kottarakkara and sell them to the local residents. Their system of business was to go from their place of residence to the Parakot market which is generally held on Mondays and Thursdays every week, purchase eggs and other articles from the market, return to Kottarakkara and sell them to the local residents. On the date of occurrence (11.10.1122), which was a Sunday, they started in their bullock bandy from their residence which was a little over a mile from the Kottarakkara road junction and reached the junction at about 10 p.m. The version given by the prosecution witnesses is that they had halted at the junction for taking light refreshments and had unyoked their bulls when an alteration took place between Ramachandran Nair and Karunakaran Pillai on the one hand and the two accused on the other. It was in the course of this quarrel that the accused are alleged to have stabbed Ramachandran Nair and Karunakaran Pillai to death. 5. To appreciate the version regarding the nature of the quarrel, it is necessary to advert to certain incidents that had taken place prior to the occurrence. Ramachandran and Karunakaran were cousins. The former had returned from military duty a short time before the date of occurrence. He had a sister who is P.W. 11 who was living in a house of her own which is adjacent to the house of the two accused. The suggestion made on behalf of the prosecution is that the accused wanted to purchase the compound of P.W. 11. Their offer, however, was not accepted by P.W. 11. It is said that as a result of this, there was bad feeling between the parties. The prosecution story is that on 2.10.1122 the accused, with the help of P.W. 12 stole two fowls belonging to P.W. 11. The matter was reported by P.W. 11 to her brother Ramachandran and to P.W. 9. On 3.10.1122 both of them came to the house of the accused and abused them. On 4.10.1122 Ramachandran saw P.W. 12 who was suspected to have assisted the accused in stealing the fowls and beat him. On 11.10.1122, at about 9 p.m. as already stated the accused started in their cart on their journey to Parakote market and when they reached the Kottarakkara road junction they unyoked the bulls and wanted to take tea from one of the shops there which happened to be open. On 11.10.1122, at about 9 p.m. as already stated the accused started in their cart on their journey to Parakote market and when they reached the Kottarakkara road junction they unyoked the bulls and wanted to take tea from one of the shops there which happened to be open. Parakote is 15 or 16 miles away from Kottarakara junction. The following day, the 12th, was the market day and it is suggested that it is customary for cartmen like the accused to drive their carts the whole night in order that they may reach the market early in the morning on the market day. The place where they halted their bandy was in front of the tea shop of P.W. 1. Ramachandran happened to be standing in the vicinity. He accosted the first accused and asked him why he stole the fowls. This naturally irritated the first accused who hit him on the shoulder. Thereupon Ramachandran slapped the first accused on the face. The first accused then took out his penknife and stabbed Ramachandran on the abdomen and left shoulder. At that stage, the second accused took part in the fray and with his knife M.O. No. 3 stabbed Ramachandran in the left arm near the elbow. When this fight was going on, Karunakaran who happened to be not far from the place of occurrence came running shouting "Don't stab, don't stab". Then the first accused is alleged to have stabbed Karunakaran near the left nipple. Karunakaran was able to move only a short distance from the place of attack and there he fell down dead. Ramachandran ran to the hotel of P.W.4 and asked for water. Karunakaran's body and Ramachandran were both taken to the dispensary at Kottarakara where the doctor found that Karunakaran was dead. The Police Inspector of the locality was absent on leave on the date of occurrence. P.W. 22, the head constable, was in-charge of the Police Station. He got information about the occurrence and recorded, Ext. C, which was the complaint made by Ramachandran and which is treated in the case as the first information report. Finding the condition of Ramachandran very serious, the doctor advised that he should be taken to a properly equipped hospital. The nearest hospital was at Quilon and, therefore he was sent by the police to the Quilon hospital for treatment. C, which was the complaint made by Ramachandran and which is treated in the case as the first information report. Finding the condition of Ramachandran very serious, the doctor advised that he should be taken to a properly equipped hospital. The nearest hospital was at Quilon and, therefore he was sent by the police to the Quilon hospital for treatment. P.W. 10 who is a Magistrate was sent for and he recorded Ext. H which is the dying declaration of Ramachandran. This was a little after 11 p.m. the same night. On 12.10.1122 Ramachandran died in the Quilon hospital. 6. At the trial, the accused did not examine any witnesses. Of the witnesses examined on behalf of the prosecution, P.Ww.1 to 7 and 18 say that they witnessed the occurrence. The accused in their statement suggested that they had not unyoked the bulls from the bandy at the Kottarakkara road junction, but that when they reached that place Ramachandran and Karunakaran, with the assistance of their friends waylaid them, pulled them out of the bandy and the accused were in fear that they would be killed. It was in such circumstances that they participated in the fray which resulted in the death of Ramachandran and Karunakaran. Their plea, therefore, was that they were exercising the right of private defence and consequently were not liable for the death of the two victims which occurred while they were defending themselves from a murderous attack. 7. The learned trial judge in the course of his judgment has analysed the evidence adduced on behalf of the prosecution. He has reached the conclusion that the eye witnesses examined on behalf of the prosecution have not divulged all the incidents that took place at the time of the occurrence. In his opinion, had they done so, the accused would have succeeded in establishing their plea of justifiable homicide caused as a result of the exercise of the right of private defence. 8. The learned Public Prosecutor on behalf of the State has addressed arguments criticising the reasoning of the learned trial Judge. He contends that there is sufficient evidence for the prosecution to support a finding of guilty. 8. The learned Public Prosecutor on behalf of the State has addressed arguments criticising the reasoning of the learned trial Judge. He contends that there is sufficient evidence for the prosecution to support a finding of guilty. When persons in the position of the accused who have admittedly caused the death of two victims plead justification under one of the general exceptions in the Travancore Penal Code, the burden is cast on them to establish their defence. This is laid down in unequivocal terms in S. 105 of the Indian Evidence Act which has been made applicable in 1117 to the Travancore Area where the trial took place. 9. Mr. K.T. Thomas, the learned Counsel for the accused, on the other hand, supports the decision of the trial Judge. In the course of his arguments which were addressed with ability and fairness, he referred to the salient features which, according to him, would support the conclusions arrived at by the learned trial judge. xx xx xx xx xx xx xx xx 15. On going through the judgment of the learned judge, we are inclined to accept the contention of the learned Public Prosecutor that the conclusion arrived at in the judgment is not warranted by the evidence in this case. When evidence is conflicting on the main issue, the trial court may believe the version given by one set of witnesses and disbelieve the other. In such circumstances, there must be very strong grounds for disagreeing with the opinion of the trial judge who has had the advantage of seeing the witnesses give their evidence. But this is a case in which the learned judge has indulged in speculation as to what should have happened without any suggestion made in the evidence or in the cross examination of the witnesses for the prosecution. Such speculation is not only not warranted, but in the present case is completely opposed to the provisions of S. 105 of the Indian Evidence Act. The evidence of the eye witnesses in this case appear prima facie to be straightforward. All of them have spoken to three of the fatal blows that were inflicted upon the victims. Their evidence was not shaken in cross examination. The evidence of the eye witnesses in this case appear prima facie to be straightforward. All of them have spoken to three of the fatal blows that were inflicted upon the victims. Their evidence was not shaken in cross examination. In such circumstances their evidence cannot be lightly brushed aside by saying that they have not divulged all that they knew and had they done so, the accused would have been in a position to make out their plea of self defence. This is directly opposed to the provisions of S. 105 of the Indian Evidence Act. In view of this provision, the learned trial judge has clearly misdirected himself. The learned counsel for the defence has taken us through the evidence of all the prosecution witnesses in detail and he has made his comments on the versions given by them. His criticism of the evidence has already been adverted to. We are not satisfied that the view taken by the leaned trial judge is justified in the circumstances of this case. The witnesses have given a straightforward version. They were the only persons who were present at the locality. Each one has given the reason for his presence there and there is no justification for imagining that they have not disclosed all that they knew about the incident. We have therefore, no hesitation in holding that the acquittal was not justified on the evidence in this case, which has clearly made out that the two accused persons are legally liable for the death of Ramachandran and Karunakaran. 16. The question then is under what provision of law the accused persons are guilty. We have no doubt from the evidence in this case that there was "a sudden fight in the heat of passion upon a sudden quarrel" within the meaning of sub-s. 4 to S. 299 of the Travancore Penal Code. It may be said that the victims not having used any deadly weapons the accused were not justified in using their pen-knives for stabbing the victims and that their conduct would amount to taking undue advantage or acting in a cruel or unusual manner within the meaning of this exception. It may be said that the victims not having used any deadly weapons the accused were not justified in using their pen-knives for stabbing the victims and that their conduct would amount to taking undue advantage or acting in a cruel or unusual manner within the meaning of this exception. But it was late in the night that the fight took place, there were other people in the vicinity, there was the quarrel between the victims and the accused seven days before the date of occurrence and the threat held out by Ramachandran that he would teach the accused a lesson if they were to come outside. All these circumstances, taken together would mitigate to an extent the use of the pen-knives by the two persons in such a manner as to bring the case within the purview of Exception 4. Therefore, with regard to the first accused we are satisfied that he is not guilty of murder but of culpable homicide not amounting to murder for which he is liable to punishment under S. 303 of the Travancore Penal Code, second paragraph, since we are satisfied that the act done by the first accused was done with the knowledge that it is likely to cause death but without any intention to cause death. 17. So far as the second accused is concerned, he participated in the fight by inflicting what is a comparatively minor injury compared to the serious ones inflicted by the first accused on the victims and he can be held liable only for causing grievous hurt under S.326 of the Travancore Penal Code. 18. In the result, the order of acquittal made by the learned Sessions Judge is set aside and the first and second accused are convicted under S.303 and 326 of the Travancore Penal Code respectively. We sentence the first accused to rigorous imprisonment for seven years and the second accused to rigorous imprisonment for three years. Govinda Pillay, J. Since I was a party to the ruling reported in 1949 TLR 191, I wish to add a few words. I agree with My Lord the Chief Justice that the observations there by my learned brother Mr. Justice Sanakaranarayana Iyer regarding the powers of the High Court in appeal against an order of acquittal were mere obiter dicta. I agree with My Lord the Chief Justice that the observations there by my learned brother Mr. Justice Sanakaranarayana Iyer regarding the powers of the High Court in appeal against an order of acquittal were mere obiter dicta. The object in making these observations was that even while the High Court interfered only very sparingly in appeals by the State against acquittals, the interference in revision on the motion of private parties was to be much less, unless very strong grounds were made out. Their Lordships of the Privy Council held in AIR 1934 P.C. 227 that the powers of the High Court in appeals against conviction and acquittal are the same; but some wise rules for the guidance of the appellate courts are suggested though they have not the support of the relevant sections of the Criminal Procedure Code. These suggestions were given because of the opportunity the trial court had to see the witnesses, examine them and appreciate their evidence with reference to their demeanour in the box, the mode in which they answered questions, the reaction on them when questions were put to them and other allied matters. The appellate court will not have any of these advantages. So it is often stated that the appreciation of the oral evidence by the trial court is not to be interfered with unless strong grounds are made out. These are but matters which every appellate court takes into account, and hence it is not necessary to lay down any inflexible rule in the matter or to limit the powers of the appellate court when the legislature did not think it necessary to do so. With these observations I agree to the conclusion arrived at by My Lord the Chief Justice. Appeal allowed.