State of Kerala v. Devassy — 1963 DIGILAW 76 (KER)

JUDGMENT Anna Chandy, J. 1. This State appeal is against the acquittal of the four accused persons tried by the Trichur Additional Sessions Judge under S.324, 447, 326 and 302 read with S.34 I. P. C. 2. Accused 1 with his wife accused 3, son accused 2 and daughter accused 4 and the deceased Lona with his wife PW 2 and sons Ouseph and Porinchu PWs 1 and 3 and daughter Kunjilakutty PW 4, were living in two contiguous properties and having a boundary dispute for a considerable time in the past. According to the prosecution on 25-1-1961 at about 6-30 A. M. P. Ws 1 and 2 went out to bail water for their cocoanut and arecanut plants. Finding the leaves of some cocoanut and arecanut palms belonging to accused 1, causing obstruction to the flow of water, PW 2 pulled down those branches when accused 1 seeing this trespassed into Lona's property and hit PW 2 with a spade. PW 2 cried and PW 1 her son went near her whereupon accused 1 gave him a hit on the head with the self same spade. Now PW 1 also cried aloud, when accused 2 armed with a rice pounder (M. O. 4), accused 3 with a chopper and accused 4 a stick rushed out to the scene and trespassed into Lona's property. Accused 2 gave a blow to PW 1 and felled him. Hearing the cries of his wife and son, Lona came out and interfered, when accused 1 hit him on the face twice with MO 3 which made him fall down. Then accused 2 and 3 also gave blows on Lona's head. Hearing the cries PWs 3 and 4 arrived on the scene. On seeing them accused 1 and 2 lifted and carried Lona to their property and threw him down and again hit him on the head. When PWs 3 and 4 rushed to the side of Lona, accused 2 aimed a blow on the head of PW 3 which fell on accused 1 who warded off the blow and asked him to stop. Not paying heed to the advice accused 2 again hit PWs 3 and 4. Accused 4 is alleged to have inflicted blows on the fallen person. Not paying heed to the advice accused 2 again hit PWs 3 and 4. Accused 4 is alleged to have inflicted blows on the fallen person. When more people gathered, accused 1 and 2 went back to their house with the weapons followed by accused 3 and 4 who kept back to pull down the leaves of an arecanut plant in their own property. PWs 3, 11, 13 and 14 removed Lona to his house and laid him down along with the other injured. PW 15 who arrived later on getting the news is alleged to have got Lona's version of the incident and lodged the First Information in the Trichur Cusba Police Station. Lona died in the hospital the same day at 1-15 P. M. 3. Accused 1, 3 and 4 had sustained injuries in the course of the same incident and the first accused who was removed to the hospital along with Lona and others also gave a statement which was recorded by the police. According to him, the prosecution version of the incident is false and distorted. He says that himself and PW 2 the wife of Lona quarrelled over the removal of a kytha plant standing on the boundary and hearing the noise Lona and his children came with rice pounder and chopper and stick and destroyed his arecanut plants, and beat him. According to him the whole incident took place in his property and the version given by the other party that it took place in Lona's property and subsequently Lona was removed by the accused to their property is false. Both the cases were investigated and while referring accused's case as false the murder case was charge sheeted. The first accused filed a protest complaint which was enquired into by the Magistrate and committed along with this case to the Sessions Court. Both the cases ended in acquittal. The same version of the incident is given by the first accused in his S.342 statement and also in his evidence as D. W. 1. The other accused gave similar versions. 4. The death of Lona and the fact that PWs 1, 3 and 4 on the one hand and accused 1, 3 and 4 on the other sustained injuries in the course of the incident are not disputed. In this case apart from the post mortem certificate of Lona there are eight wound certificates. The other accused gave similar versions. 4. The death of Lona and the fact that PWs 1, 3 and 4 on the one hand and accused 1, 3 and 4 on the other sustained injuries in the course of the incident are not disputed. In this case apart from the post mortem certificate of Lona there are eight wound certificates. In this connection, I wish to point out the desirability of Sessions Judges incorporating the wound certificates and the post mortem certificates in their judgments so that the appellate judges may not be put to the painful necessity of attempting to decipher what sometimes resemble pencil written hieroglyphics. References to medical certificates will be facilitated if they are incorporated in the printed judgment itself. 5. The prosecution sought to prove their case by the evidence of PWs 1 to 4 the injured and PWs 5, 11; 12, 13 and 14. The learned Sessions Judge has found their evidence unacceptable and thought it not safe to act on it. He further found that the version of the incident as given out by them is improbable and unsupported by the circumstances disclosed in evidence. The explanation offered by them for the injuries sustained by the accused was also found unacceptable. The charge under S.34 was found to be untenable and the learned Judge found it impossible in the nature of the evidence to find which of the accused was responsible for causing the injuries and under what circumstances. 6. In this case we have two versions of the incident, the one contained in the statement given by PW 15 at the Police Station at 9.30 A. M. (vide Ext. P14) and the other found in the statement made by the first accused before the police at 12.30 (vide Ext. D 13) and our attempt should be to find out which version is more probable bearing in mind the basic fact that the burden is always on the prosecution to prove their case beyond doubt. 7. To start with, there are some suspicious features about the first information statement itself. PW 15 who gave it is neither an injured person nor an eyewitness. His case is that he was attracted to the place by a report of the incident when Lona who was found injured told him how the occurrence took place and asked him to report the matter to the police. PW 15 who gave it is neither an injured person nor an eyewitness. His case is that he was attracted to the place by a report of the incident when Lona who was found injured told him how the occurrence took place and asked him to report the matter to the police. An attempt is made to incorporate the statement made by the dying man in his own words in Ext. P. 14 evidently to serve the purpose of a dying declaration. The statement is a very detailed one as to the occasion for the encounter, who started it and when and how Lona was injured by the accused and how after Lona was attacked in his own property he was carried by the accused into their property and dropped there and again beaten. However to a pointed question put by the Public Prosecutor to PW 15 to repeat the very words in which Lona narrated the incident to him he stopped by saying that xxx PW 15 is definite that neither any of the other injured nor the neighbours who gathered at the place (including the eyewitnesses in this case) gave him any further details and to get over the embarrassing situation came out with the explanation that all that is contained in Ext. P. 14 except the specific words mentioned by him as stated by Lona, happened to be seen by him forgetting the fact that admittedly he came to the scene only after the entire occurrence was over and merely saw Lona and the other injured lying in their house. The significance of this intriguing situation is all the more enhanced when it is admitted by the witness that the original report of the occurrence that he got was from one Kesavan the first accused in Ext. D2 criminal case filed by accused 2 and that he himself gave evidence for the accused in that case. Even if the evidence of PW 15 is to be accepted, we are not able to place any reliance on the dying declaration alleged to have been made by Lona to him. D2 criminal case filed by accused 2 and that he himself gave evidence for the accused in that case. Even if the evidence of PW 15 is to be accepted, we are not able to place any reliance on the dying declaration alleged to have been made by Lona to him. As observed by His Lordship Mahajan J. in Ram Nath v. State of Madhya Pradesh ( AIR 1953 SC 420 ): "Unless one is certain about the exact words uttered by the deceased, no reliance should be placed on verbal statements of witnesses and the oral declarations made by a deceased." Even if the words mentioned by PW 15 as having been spoken by the deceased are to be accepted as true, it does not help one to decide the issue in this case as to how the occurrence started and where it took place. 8. Before going into the evidence of the eyewitnesses we think it desirable to deal with a few circumstances which while making the prosecution version of the occurrence improbable indicate the truth of the accused's version generally. According to the prosecution the provocation for accused 1 to start the assault by hitting PW 2 with a spade was that PW 2 destroyed the leaves of cocoanut and arecanut trees belonging to the accused that obstructed the flow of the water. However Ext. P. 11 the mahazar prepared by the police regarding the scene of occurrence fails to note any sings of such destruction. PW 2 when asked about it does not even say how many leaves were destroyed by her and PW 1 would give contradictory versions about the number. Again, though PW 2 would say that she was hit on the hand by accused 1 with the hind portion of MO 3 spade where we find a projecting portion made of iron, it is strange that it failed to leave am mark at all to be noted by the doctor when she was seen by him at noon the same day. This was followed by accused 1 hitting PW 1 on the head and he cried aloud that they were being killed. If that is true one is at a loss to know why accused 1's wife and children should rush up with rice pounder, chopper and sticks as if accused 1 was being killed and he cried for help. This was followed by accused 1 hitting PW 1 on the head and he cried aloud that they were being killed. If that is true one is at a loss to know why accused 1's wife and children should rush up with rice pounder, chopper and sticks as if accused 1 was being killed and he cried for help. Again the prosecution would want the court to believe that in the midst of the provocation offered by all these bone breaking assaults by the accused Lona and his two sons and wife and daughter remained unarmed till the end and meekly suffered all the injuries as if they are wedded too strongly to the creed of non violence. The prosecution case, that the occurrence took place in the property of Lona and that Lona was later removed to the accused's property is also not probable. If the accused wanted to create the impression that Lona trespassed into their property and the entire occurrence took place there why should they allow Lona to be taken back to his house when they could as well have prevented it. That story does not also gain support from the signs noted at the place by the police. It is the case of the prosecution that PW 1 who had sustained bleeding injuries had fallen down in Lona's property and so also Lona. However no blood stains are noted in those places and the only place where blood stains were found was the ridge of a pit used for planting cocoanut saplings. According to accused 2 while accused 2 was running off after sustaining injuries in the accused's compound, he happened to slip down into the pit. Again, if Lona who had sustained bleeding injuries was actually dragged from his compound where he fell down to the accused's compound and blood was dripping all along the way as is spoken to by the prosecution witnesses one would have expected to find at least a drop or two on the way. When the absence of it was brought to the notice of the witnesses they tried to offer an explanation by coming out with the version that Lona was not dragged but was carried bodily and dropped. When the absence of it was brought to the notice of the witnesses they tried to offer an explanation by coming out with the version that Lona was not dragged but was carried bodily and dropped. The number of injuries on Lona also does not support the theory that he Was beaten by three persons at the first scene and again by two of them in the second. The version given by the witnesses as to how the prosecution witnesses sustained injuries is also not fully corroborated by the medical evidence. We have already referred to the fact that PW 2's case of being hit on the head by accused 1 with MO 2 spade is not borne out by the medical evidence. The case of PW 1 is that he was beaten on the head by accused 1 with the spade and it hit him both on the head and the hand and accused 2 hit him on the right side with the rice pounder. Curiously enough the blow with the rice pounder had left no mark at all and the blow with the spade with the projecting portion made of iron has caused only superficial marks. PW 3 would have it that he was beaten on the head by accused 2 with the rice pounder and accused 4 beat him on the back with MO 4 stick. In Ext. P. 3 wound certificate besides the lacerated wound on the head only three linear abrasions are noted. M.O. 4 is a very heavy weapon and unless the assailant acted with particular care and consideration in using the weapon, one would have expected some serious injuries, So also in the case of PW 4 the evidence is that she was beaten on the head with the rice pounder by accused 2 and with the blunt edge of the chopper by accused 3 and again by accused 4 with a stick. The resulting injuries are also very trivial. 9. Accused I had a curved lacerated wound 2?" X ž" and scalp deep on the head besides a swelling on the right arm noted by the Sub Inspector in Ext. D13(a). Accused 3 had a diffused swelling on the palm with fracture of the metacarpal bone of the thumb of the right hand and accused 1 four diffused swellings on the left upper arm. D13(a). Accused 3 had a diffused swelling on the palm with fracture of the metacarpal bone of the thumb of the right hand and accused 1 four diffused swellings on the left upper arm. According to the prosecution the injuries on accused 1 were caused by a blow aimed by accused 2 at PW 3 while accused 1 attempted to prevent it. Similarly accused 4 hits PW 4 and causes the injury to her own mother and accused 3 aims a blow at PW 3 and hits accused 4. This apportioning of the acts of the daughter beating the mother, mother beating the daughter and the son beating the father by mistake is the most improbable story that can be made up. As has been aptly remarked by the learned defence counsel, if the melee was such that all these blows by the accused could fall on themselves, why not Lona's wife and children be credited with a similar mistake. It is a day light occurrence and the participants are only four on one side and five on the other. The explanation is fantastic and renders the prosecution evidence a challenge to the credulity of any court. 10. We may now refer to the State Prosecutor's contention that the prosecution is not bound to explain the injuries on the accused. She argues that the ruling in Sebastian David v. Sirkar Prosecutor (AIR 1950 Travancore - Cochin 9) is not good law and that the reliance placed on it by the Sessions Judge seems to have vitiated the appreciation of the entire prosecution evidence. The above decision is to the effect that: "When there are injuries on both sides (the accused and the complainant) the prosecution must cogently explain how the accused sustained injuries. Without such explanation the prosecution evidence will not be complete and no court will be prepared to act on evidence which leaves a lacuna." We can very well understand that a doctrinaire insistence on throwing out every case where the prosecution fails to explain how the injuries on the accused were caused may lead to undesirable results. Needless to say the effect of such failure depends on the facts of each case. Needless to say the effect of such failure depends on the facts of each case. In cases where injuries on the accused were not sustained at the time and place of occurrence or where they might have been self inflicted, naturally the prosecution is not expected to offer any explanation for the injuries. But the position is different in a case where the prosecution admits that both parties sustained injuries in the course of the encounter. Here again if there is acceptable evidence to show that the accused were in the aggressive and only minute or trivial injuries were sustained by them which could well have been unnoticed by the prosecution witnesses, failure to explain the injuries may not count. However, when in an occurrence in broad day light as in this case the accused sustained injuries comparatively no less serious than those inflicted on the prosecution party and the witnesses are in a position to account for each and every abrasion or contusion found on the latter then if they were to say that they failed to see how the accused sustained injuries or if they come out with apparently unacceptable explanations for such injuries the witnesses lose their status as disinterested and unbiased witnesses and courts may well feel it unsafe to act on such evidence. 11. It is in this background that we have to assess the evidence of the eyewitnesses. PWs 1 to 4 are the injured persons and participants in the occurrence and they are also the accused in the counter case filed by the accused, Their evidence is bound to be interested and they have given a one sided version of the incident. In view of the various inherent improbabilities in the case as put forward by them we do not think it necessary to embark on the task of listing the verbal inaccuracies or omissions and contradictions in the evidence of these witnesses whose evidence was not acted upon by the trial Judge on proper grounds. PW 1 goes to the extent of pleading ignorance of the existence of a counter case in which he figures as an accused. The belated version that a blow aimed by accused 2 at PW 3 fell on accused 1 was not given by him either to the police or in the enquiry court. PW 1 goes to the extent of pleading ignorance of the existence of a counter case in which he figures as an accused. The belated version that a blow aimed by accused 2 at PW 3 fell on accused 1 was not given by him either to the police or in the enquiry court. He admits that his mother accused 3 had a spade with her when she went to the place to bail out water and had left it at the scene though he would add that, that is not the spade which is recovered by the police. P.W. 2 does not attribute any overt acts to any of the accused except regarding the assault on Lona. She also made a belated attempt to explain the injury on accused 1 as being caused by accused 2. Her attempt to improve upon her evidence before the enquiry court is seen from Exts. D(a) to (d). PW 3 sees only the second stage of the incident. His case is that he ran up to the scene on hearing the cries of his father and mother that they were being killed. Yet he would say that he went unarmed. PW 4 also speaks of only the second stage. According to her accused 1 who hits everyone else with a spade hit her with a stick. She has also improved upon her statement before the police with a view to fall in line with the prosecution case. Suffice it to say that it is unsafe for the Court to act on the evidence of PWs 1 to 4 in the absence of acceptable corroboration. The alleged independent eyewitnesses are PWs 5, 11 and 12. PW 5 Kumaran claims to have seen the entire occurrence from a neighbouring compound where he had gone to answer calls of nature. Though he pleaded ignorance of the fact that accused 1 had filed a criminal complaint against his father and others he had to admit it when he was confronted with Ext. D8. He is also related to the Pillatil people against whom accused 1 had filed Ext. D2 case in which Lona was a defence witness. Naturally enough he is positive that none of the accused sustained injuries at the time of occurrence. D8. He is also related to the Pillatil people against whom accused 1 had filed Ext. D2 case in which Lona was a defence witness. Naturally enough he is positive that none of the accused sustained injuries at the time of occurrence. Though in chief examination he went on describing meticulously each and every detail, of the incident, he had to admit, in cross examination that he is not in a position to say which of the accused caused injuries to PWs 1 to 4 and what weapons they used. PW 11 is one who lives two furlongs away from the scene, who says in chief examination that he saw the second stage of the incident when he was passing along the lane in front of Lona's property, and in cross examination that he saw it after he had reached his cashew garden which itself is one furlong away from the scene. He admits that his paternal uncle's sons are accused in Exts. D2 and D8 complaints filed by accused 1 and that Lona was a witness for them in Ext. D2 case. The contradictions between his evidence in the enquiry court and at the trial have been marked as Exts. D10(a) to (e). PW 12 is a casual witness who lives two miles away from the scene and is unable to explain his presence satisfactorily. He is an old man of 75 who though short of sight and hearing claims to have witnessed the occurrence from a distance of 50 feet. It is this solitary witness who was prepared to oblige the prosecution by coming out with a curious story of how accused 3 and 4 sustained injuries at the hands of the other accused. Having analysed the evidence of the witnesses who speak to the occurrence we are not prepared to say that the appreciation of their evidence by the Trial Court is faulty or that the court was not justified in not acting on their evidence. 12. In the unsatisfactory nature of the prosecution evidence it is not necessary to go into the merits of the defence case though there are indications that the defence case is more probable. The definite case of accused 1 is that when he threw the kytha plant into the property of Lona, mud splashed on the clothes of PW 2. 12. In the unsatisfactory nature of the prosecution evidence it is not necessary to go into the merits of the defence case though there are indications that the defence case is more probable. The definite case of accused 1 is that when he threw the kytha plant into the property of Lona, mud splashed on the clothes of PW 2. Her clothes were not taken into custody and when she was asked about it, she came out with an evasive answer instead of a positive denial. The accused's case that Lona and party came in a body to their property and destroyed their coconut and arecanut plants gains support from the circumstance that in Ext. P11, PW 20 has noted that the leaves of the cocoanut plants in the accused's property are found destroyed. Though PW 20 admits that none of the witnesses told him how it happened the prosecution made a belated attempt to attribute the act to the accused themselves. It cannot also be said that the police conducted a proper investigation of the defence case with a view to find out the truth. They appear to have been abscessed with the death of Lona. In Ext. D13 though accused 1 gave a statement that he was attacked by the accused while in his compound, in the column in the First Information Report where a brief description of the offence is given the scene of occurrence is given as the compound of Lona. No wonder the police were not anxious to find out how the accused came to sustain the injuries. 13. All things told we do not find any jurisdiction for interfering with the order of acquittal. It is confirmed and the appeal by the State is dismissed.