State of Kerala v. Govindan Nair Sukumaran Nair — 1970 DIGILAW 9 (KER)

JUDGMENT E.K. Moidu, J. 1. This is an appeal under S.417 CrPC filed on behalf of the State to set aside the order of acquittal passed by the Sessions Judge, Kottayam in favour of the respondent accused who had been in the first instance convicted and sentenced by the Asst. Sessions Judge, Kottayam to undergo 3 years' rigorous imprisonment under S.307 I.P.C. for attempting to cause the death of PW 1, P. N. Narayanan Nair, and 6 months rigorous imprisonment under S.324 I.P.C. for causing hurt to PW 2, K. Narayanan Nair by stabbing them with a Malapuram knife after the midnight on 16-12-1968. 2. PWs 1 and 2 are cousins. The respondent is the son-in-law of an uncle of PWs 1 and 2. On account of some property dispute, the respondent and his father-in-law were not on good terms for some time. PWs 1 and 2, who supported the uncle in the matter of property dispute, were therefore not well disposed towards the respondent. The relationship of PWs 1 and 2 towards the respondent was also strained as the respondent misbehaved with his wife who had therefore occasion to go and live in her brother's house some few days prior to the incident. When the respondent went there to bring her back to his house, PW 1, was purported to have told him that if he beat his wife, she would not be some along with him. It was under the above background that the respondent happened to meet PWs 1 and 2 in the midnight at about 12.30 a. m. on 16-12-1968 While all of them were returning along the Kanjirappally - Erattupetta road after attending a festival which was simultaneously held in the temple and the church in Tendinad. The respondent came form south to north while PWs 1 and 2 came from the opposite direction. While so, the respondent asked PW 1 to come nearer as he wanted tell him something, when the respondent told him that he would not allow his uncle to collect usufructs from the property in dispute. Then PW 1 said not to create any embarrassment to the uncle. The respondent replied: "I will quarrel even with your father". Then PW 1 replied: "You are not capable of it''. Then PW 1 said not to create any embarrassment to the uncle. The respondent replied: "I will quarrel even with your father". Then PW 1 replied: "You are not capable of it''. It was then that the respondent caught hold of the left hand of PW 1 and saying that he would be done away with the respondent stabbed him with a Malapuram knife on his abdomen with the result the intestines protruded. When he aimed another blow against PW 1, he was intercepted by PW 2 when the respondent stabbed him also on his left hand and thereby PW 2 also sustained injury. PW 1 then fell down. By that time, PW 3, Bhaskaran Nair, PW 6 Joseph and DW 4 Purushothaman Nair came to the scene. The respondent was seen to have run away from the place towards north and then towards south. After some first aid was given to PW 1, both PWs 1 and 2 thereafter were taken to Palai Govt. Hospital at which PW 4, Asst. Surgeon dressed the wounds of PWs 1 and 2 at 2 a.m. on the same day. PW 4 issued Ex. P2 wound certificate to PW 1 while Ex. P3 wound certificate was issued to PW 2. The injury of PW 1. being serious, he was sent to the Medical College Hospital for better treatment at which he remained as in patient under the treatment of PW 7 Professor of Surgeory. However, he was discharged as cured on 25 12 1968. In the meanwhile, PW 2 had given Ex. P1 first information to PW 8, Head Constable, Palai on the basis of which he registered a crime and the same was sent to Erattupeta Police Station within the jurisdiction of which the occurrence took place. PW 9 registered a crime there and PW 10, Sub Inspector took up investigation. He visited the scene of occurrence, and prepared Ex. P10 scene mahazar. The place of occurrence was pointed out to him by one Chandrasekharan Nair. The respondent later surrendered before the court. On completion of investigation, the charge was laid against the respondent. 3. The respondent in his 342 statement denied the prosecution version of the case. He visited the scene of occurrence, and prepared Ex. P10 scene mahazar. The place of occurrence was pointed out to him by one Chandrasekharan Nair. The respondent later surrendered before the court. On completion of investigation, the charge was laid against the respondent. 3. The respondent in his 342 statement denied the prosecution version of the case. According to him, at about 9-30 p. m. on the night of the incident in question, there was an altercation between him and one Chandrasekharan Nair while they were on their way to the temple to attend the festival. That incident, according to him, was in front of the local arrack shop when DW 3 Madhavan Nair was also present. While he was returning from the temple late in the night, he was attacked by a large number of persons who were waiting on the Kanjirappally - Erattupetta road when there was no street light burning. The crowd was alleged to have fell upon him and attacked him at the instance of Chandrasekharan Nair. Finding that he had no other way to get out of the crowd, he brandished a knife to escape out of the clutches of those persons and so his statement was that he did not voluntarily cause any injury to any of the persons who were present in the crowd. DW 4 had also given evidence in terms of the statement of the respondent. DW 1 is the Asst. Engineer, Electricity Board and DW 2, the Executive Officer of the Panchayat of the area. They stated that under the agreement Ex. D1 together with the schedule attached thereto as Ex. D1 (a), no street light was given to the Panchayat after 10-30 p. m. 4. The fact that PWs 1 and 2 were injured after the midnight of 16 12 68 admits of no doubt. But, the prosecution evidence did not reveal that, in the circumstances of the case, the respondent would have caused voluntary hurt to PWs 1 and 2. PWs 1 and 2 are the two injured persons. PWs 3 and 6 are said to be the witnesses who witnessed the occurrence. But, there is serious doubt whether PWs 3 and 6 reached the scene before PWs 1 and 2 sustained injuries. There was discrepancy in the evidence of these witnesses. PWs 1 and 2 are the two injured persons. PWs 3 and 6 are said to be the witnesses who witnessed the occurrence. But, there is serious doubt whether PWs 3 and 6 reached the scene before PWs 1 and 2 sustained injuries. There was discrepancy in the evidence of these witnesses. PWs 1 and 2 stated that the witnesses came to the scene after PW 1 fell down on the ground sustaining the injury. If the version in Ex. P1 as well as that of PWs 1 and 2 in the evidence is to be accepted, it would show that the witnesses reached the place on hearing the cry of PWs 1 and 2. But, the evidence of PWs 3 and 6 showed that when they reached the place, PW 1 was found lying on the ground injured. PW 1 had also admitted in cross examination that PWs 3 and 6 came to the spot after PW 1 had fallen on the ground. But, PWs 3 and 6 described the entire incident from beginning to the end which would go to show that their testimony is not worthy of any credit. On the other hand, the evidence of DWs 3 and 4 coupled with the 342 statement of the respondent revealed that the defence version was more probable than the prosecution version. 5. DWs 1 and 2 were definite that no light was supplied to the Panchayat after 10.30. p.m. The incident in question was after 12.30 a.m. The arrangement between the Electricity Board and the Panchayat was evidenced by Ex. D1 agreement to the effect that no light would be supplied to the Panchayat after 10.30 p.m. It is true that the witnesses in the case stated that there was street light when the occurrence took place. There was contrary evidence of DW 4 that there was no street light. The respondent had also stated in his 342 statement that the occurrence was in darkness as there was no street light at that time. The evidence of DW 4 cannot be discarded as it was admitted that he was also present along with PWs 3 and 6 when they reached the spot. When there was a written agreement evidenced by Ex. D1. The evidence of DW 4 cannot be discarded as it was admitted that he was also present along with PWs 3 and 6 when they reached the spot. When there was a written agreement evidenced by Ex. D1. it is difficult to believe the oral testimony of witnesses to show that there had been street light after 10.30 p.m. PW 10, Sub Inspector, did not make any record in his case diary that when he visited the festival on bandavast duty on the night in question he had seen any street light anywhere in the area, but he spoke from his memory that to his knowledge there was no street light. He could not be definite about it either. Under these circumstances, the only inference from the evidence on record was that there was no street light when the occurrence took place. The evidence of DW 3 was that prior to the incident, there was another incident between the respondent and one Chandrasekharan Nair when the latter attempted to pickpocket the respondent with the result there was a scuffle between the two. That evidence of DW 3 could not be challenged. So, the respondent's case was that Chandrasekharan Nair collected some persons on the road side when he was returning from the festival. DW 4 had also given evidence in support of the respondent's version that the respondent was attacked by a crowd of persons at the instance of Chandrasekharan Nair. The presence of Chandrasekharan Nair was also spoken to by DW 4. PWs 1, 2, 3 and 6 admitted that DW 4 came to the scene along with PWs 3 and 6. There was no ground to discredit or discard the evidence of DW 4 if we give credence to PWs 3 and 6. On a consideration of either evidence I am inclined to accept the version of DW 4 which is consistent with the defence version. PWs 3 and 6 are neighbours of PW 2 and they were also friends. It was suggested that PW 3 is also in a way related to PWs 1 and 2. The motive for the occurrence in the circumstances of the case does not appear to be sufficient for the respondent to have attacked PWs 1 and 2. If the motive suggested was true, there was chance for either of them attacking each other. It was suggested that PW 3 is also in a way related to PWs 1 and 2. The motive for the occurrence in the circumstances of the case does not appear to be sufficient for the respondent to have attacked PWs 1 and 2. If the motive suggested was true, there was chance for either of them attacking each other. PW 3 had stated that there was a pushing and pulling between PWs 1 and 2 on the one sidle and the respondent on the other before they were stabbed. But, no other witnesses stated that there was any such pushing and pulling. That evidence was an indication that some other incident would have taken place arid that the prosecution story was not true. 6. It is contended that in this case that the respondent did not prove the defence version beyond a reasonable doubt. It was not necessary for an accused in a case to prove the defence beyond a reasonable doubt. On the other hand, it is for the prosecution to prove its case beyond a reasonable doubt. In this regard, the observation of Their Lordships of the Supreme Court in Bhikari v. State of Uttar Pradesh AIR 1966 SC 1 may be seen. After quoting the passage from AIR 1964 Supreme Court, the following observation was made: "Undoubtedly it is for the prosecution to prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea. Once that is done a presumption that the accused was sane when he committed the offence would arise. This presumption is rebuttable and he can rebut it either by leading evidence or by relying upon the prosecution evidence itself. If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused he would be entitled to be acquitted. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in S.105 of the Evidence Act". 7. This is very different from saying that the prosecution must also establish the sanity of the accused at the time of commission of the offence despite what has been expressly provided for in S.105 of the Evidence Act". 7. In AIR 1966 Supreme Court page 97 the nature and extent of the evidence which would charge the onus of proof placed on the accused person claiming the benefit of an exception is set out. The relevant observation made on the point is as below: "There is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception, law treats the onus as discharged if the accused person who seeks to prove substantially his claim that his case falls under an Exception, law treats the onus as discharged if the accused person succeeds "in proving a preponderance of probability". As soon as the preponderance of probability is proved, the burden shifts to the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt. As Phipson has observed, when the burden of an issue is upon the accused, he is not, in general, called on to prove it beyond a reasonable doubt or in default to incur a verdict of guilty; it is sufficient to the prosecution which has still to discharge its original onus that never shifts, i.e., that of establishing, on the whole case, guilt beyond a reasonable doubt. It will be recalled that it was with a view to emphasising the fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution, that Viscount Sankey in Woolmington v. Director of Public Prosecutions, 1935 AC 462, observed that "no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." This principle of common law is a part of the criminal law in this country. That is not to say that if an Exception is pleaded by an accused person, he is not required to justify his plea; but the degree and character of proof which the accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case." 8. This view has been followed in a Full Bench decision reported in Rishi Kesh Singh v. State, AIR 1970 All. 57. At page 79 Mathur, J. concluded the dictum as follows: "In a case in which any General Exception in the Indian Penal Code, or any special exception or proviso contained in another part of the same Code, or in any law defining the offence, is pleaded or raised by an accused person and the evidence led in support of such plea, judged by the test of the preponderance of probability, as in a civil proceeding, falls to displace the presumption arising from S.105 of the Evidence Act, in other words, to disprove the absence of circumstances bringing the case within the said exception; but upon a consideration of the evidence as a whole, including the evidence given in support of the plea based on the said exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more of the ingredients of the offence, the accused person, shall be entitled to the benefit of the reasonable doubt as to his guilt and hence to acquittal of the said offence." 9. It is, therefore clear that the respondent in the instant case is not bound to prove his case beyond a reasonable doubt. It is sufficient that he is possible to indicate preponderance of probability in favour of his defence. It is, therefore clear that the respondent in the instant case is not bound to prove his case beyond a reasonable doubt. It is sufficient that he is possible to indicate preponderance of probability in favour of his defence. In the light of the evidence in the case and other circumstances, I am of the opinion that there is serious doubt in the prosecution version of the case and that, therefore, there is no ground to exclude the defence case based upon a preponderance of probability. 10. In the result, the acquittal order passed against the respondent is confirmed and the appeal is dismissed.