Chandy (A) Kochu v. State of Kerala — 1980 DIGILAW 283 (KER)

JUDGMENT P. Janaki Amma, J. 1. The Judgment of the Court was delivered by Janaki Amma, J. - Criminal Appeal No. 371 of 1979 is filed by accused 1 to 3 in Sessions Case No. 16 of 1978, on the file of the Court of Session, Thodupuzha, against the conviction under S.304 Part I, Indian Penal Code and sentence of rigorous imprisonment for three years. Criminal Appeal No. 35 of 1978 is filed by the State against the acquittal of the eight accused, who were tried in that case of the offence of murder. 2. The prosecution case is as follows: Accused 1 to 4 are brothers. Accused 5 and 6 are sons of the paternal uncle and accused 7 and 8 are dependants of accused 5 and 6. Accused 1 to 6 owned a rubber estate at Purakayam in Peruvanthanam Village. There was a labour dispute in the estate. The workers were led by the deceased, Kadathinath Kocheppe alias Joseph. On 6th April 1978 the estate workers, under the leadership of the deceased wrongly kept the first accused under restraint. On account of the incident accused 1 to 6 became enemical towards the deceased. On 19th April 1978 at about 5.30 p.m. the deceased was standing near the stationary shop of P.W. 2 in Murinjapuzha Bazaar for boarding a bus. While so, accused 1 to 8 came in a bus and got down at the bazaar. They had tea from the shop of P.W. 5 Philipose. The accused saw deceased -- Kocheppe standing in the verandah of P.W. 2. The first accused moved towards the verandah of the grocery shop of P.W. 4 and beckoned to Kocheppe. Kocheppe approached the first accused. The first accused asked him whether he would not allow his rubber trees to be tapped. Kocheppe replied that he would not. The first accused again repeated the quarry and the deceased gave the same reply. The first accused got enraged and asked the other accused, to do away with Kocheppe. The second accused stabbed the deceased with a knife. Kocheppe warded off the stab and ran towards the road. The accused chased him and surrounded him at the courtyard in front of the shop of P.W. 2. All the accused stabbed him with knives until he fell down. Kocheppe died on the spot due to the injuries sustained by him. 3. Kocheppe warded off the stab and ran towards the road. The accused chased him and surrounded him at the courtyard in front of the shop of P.W. 2. All the accused stabbed him with knives until he fell down. Kocheppe died on the spot due to the injuries sustained by him. 3. P.W. 20, the Sub Inspector of Police, Peermade, came to know that there was some trouble at the scene of offence. He went to the scene. Some police constables had already come to the place. P.W. 20 recorded the statement of Ouseph. The statement was sent over to the police station. P.W. 17 Probationary Sub Inspector, registered Crime No. 125 of 1978 on the basis of the statement. The investigation was taken over by P.W. 21, the Circle Inspector of Police, who conducted inquest on the dead body of Kocheppe and questioned witnesses. The case was subsequently transferred to the Crime Branch and investigation was continued by P.W. 21, the Detective Inspector. The dead body was sent for post mortem examination. P.W. 8, Medical Officer, conducted the post mortem and issued Ext. P-2 post mortem certificate. After completing investigation a charge sheet was filed for offences punishable under S.143, 147, 148 and 302 read with S.149 of the Indian Penal Code. 4. In the meanwhile, on 23rd April 1978 accused 1 and 3 got themselves admitted in the Government Hospital, Kanjirappally. P.W. 9 examined the injuries and issued wound certificates, Exts. P-3 and P-4. An intimation was sent to the police station at Ponkunnam regarding their admission. On 24th April 1978 the Sub Inspector of Police, Ponkunnam, proceeded to the hospital and recorded Ext. P-19, the statement of the first accused. Crime No. 121 of 1978 was registered on that basis. The case was, subsequently, transferred to the police station at Ponkunnam, where it was re-registered as Grime No. 132 of 1978. P.W. 20 investigated the crime. Accused 1 and 3 were discharged on 2nd March 1978. Accused 2 and 4 surrendered on the same day. Accused 5 to 8 surrendered on 9th May 1978. Eight knives, M.O. 1 series, alleged to have been used for the occurrence, were respectively recovered as per information given by accused 1 to 8. Exts. P-5 to P-12 are the mahazars prepared in respect of the said recovery. P.Ws. 10 to 12 are the attestors to the mahazars. Accused 5 to 8 surrendered on 9th May 1978. Eight knives, M.O. 1 series, alleged to have been used for the occurrence, were respectively recovered as per information given by accused 1 to 8. Exts. P-5 to P-12 are the mahazars prepared in respect of the said recovery. P.Ws. 10 to 12 are the attestors to the mahazars. A charge sheet was filed after the completion of the investigation. A refer report was sent in respect of Crime No. 132 of 1978. In due course, the accused were committed for trial in the Sessions. All of them pleaded not guilty. 5. The prosecution examined 12 witnesses, among whom P.Ws. 1 to 4 and 7 speak to the occurrence. P.W. 5 is a tea - shopkeeper to whose shop the accused had gone for taking tea just before the occurrence. P.W. 6 is an exworker in the estate of the first accused, who is examined to speak to the labour dispute which was led by deceased Kocheppe. P.W. 13 proves the receipt of the Chemical Examiner's report, Ext. P-14. P.W. 14 is an attestor to the inquest report, Ext. P-15 and P.W. 15 is the First Class Magistrate, Peermade, who conducted an identification parade. 6. The accused in their statements under S.313 of the Code of Criminal Procedure, denied that the occurrence took place in the way spoken to by the witnesses. The first accused gave the following version of the occurrence: Himself and accused 2 and 3 were on their way to Purakkayam in the evening of 19th April 1978. They alighted from the bus at Murinjapuzha and had some tea. The third accused went to purchase some provisions from the nearby provision shop. Accused 1 and 2 got into the road leading to Madamba. At that time deceased-- Kocheppe and four others who could be identified by sight, were coming from the opposite direction. Kocheppe called out whether the first accused was going to his estate for tapping rubber, and also warned that he would not let him go and that he would be dealt with properly. Kocheppe drew a knife and stabbed the first accused. He warded off the stab with his left hand and got an injury on the hand. There was another stab, which hit on his back. He cried out that he was being killed. Thereupon, the third accused came running to the place. Kocheppe drew a knife and stabbed the first accused. He warded off the stab with his left hand and got an injury on the hand. There was another stab, which hit on his back. He cried out that he was being killed. Thereupon, the third accused came running to the place. He was also stabbed by Kocheppe. He got an injury on his lip and also lost two of his teeth. Kocheppe stabbed the third accused again, which stab was warded off by him, when he got an injury on the hand. Kocheppe and those who were with him beat him and hit him. Accused 1 to 3 felt that they would be killed. They escaped somehow from the place. Accused 2 and 3 adopted the above version of the first accused. Accused 4 onwards denied that they had anything to do with the occurrence. 7. The trial court acquitted accused 4 to 8. Accused 1 to 3 were found guilty of an offence punishable under S.304, Part I of the Indian Penal Code on the ground that they exceeded the right of private defence and were sentenced to rigorous imprisonment for three years. 8. Both the prosecution and the accused 1 to 3 challenge the findings of the trial court. While the accused would argue that they are entitled to a total acquittal the State would contend that all the eight accused should have been convicted for the murder of Kocheppe and the allied offences with which they were charged. 9. That deceased Kocheppe met with his death on 19th March 1978 due to the injuries sustained by him while at the bazaar at Murinjapuzha admits no doubt. The deceased had as many as 11 injuries on his body. According to P.W. 8, Medical Officer, who conducted post mortem on the dead body, injury No. 4 on the neck was fatal and injury Nos. 1and 2 on the chest were likely to cause death. it has also come out from the evidence of P.W. 9, Medical Officer, Government Hospital, Kanjirappally, who examined accused 1 and 3 on 23rd April 1978, that both of them had sustained injuries, which were four days old. The first accused had four injuries, two of which were muscle deep and he complained of pain and tenderness over neck, chest back and abdomen. The first accused had four injuries, two of which were muscle deep and he complained of pain and tenderness over neck, chest back and abdomen. The third accused had 7 injuries, including one penetrating injury on the right of the floor of the mouth about 1 c.m. deep. The upper left second incisor tooth was missing, revealing a socket full of blood clots with inflamed margins. The lower left first incisor was broken and shaking. The prosecution suggested to the Medical Officer that some of these injuries could be self inflicted, to which his answer was in the affirmative. P.W. 22, the investigating officer, would say that his enquiry revealed that injuries on the first accused were caused by accidental contact of the weapon while the eight persons attacked the deceased, and those on the third accused by throw of stones. 10. The points to be decided are whether the incident happened in the way set up by the prosecution or as stated by the first accused when questioned under S.313 of the Code of Criminal Procedure, and whether the findings of the trial court require modification or setting aside. As already stated, P.Ws. 1 to 4 and 7 were examined as eye witnesses to the occurrence. P.W. 1, however, turned hostile and was cross examined by the prosecution. Although he would claim that he witnessed the occurrence, according to him, it was the deceased Kocheppe who first stabbed the first accused, and thereafter, the first accused stabbed Kocheppe. Kocheppe, thereupon, ran towards the road and all the accused stabbed him. The above version is contrary to the prosecution case, and neither the prosecution nor the defence placed reliance on his version. The State also did not take the trouble of putting the earlier version of the witness in the first information statement to him and seek an explanation for the deviation made by him. No reliance can be placed on the evidence of this witness for the purpose of coming to a decision in the case. P.W. 2, Thomas is the shopkeeper, in whose shop deceased - Kocheppe was sitting when he was beckoned by the first accused. No reliance can be placed on the evidence of this witness for the purpose of coming to a decision in the case. P.W. 2, Thomas is the shopkeeper, in whose shop deceased - Kocheppe was sitting when he was beckoned by the first accused. He speaks to the conversation that ensued between the deceased and the first accused when the deceased told the first accused that he would not permit him to tap the rubber trees the first accused called upon the other accused to stab him. Thereupon, the second accused stabbed him first. Kocheppe ran followed by the other accused; all of them surrounded Kocheppe and stabbed him with rnalappuram knives. Kocheppe fell down. The witness would also say that while the stabbing was going on a stone thrown by somebody fell on the ground. P.W. 3, Joseph, gives an identical version. According to him, it was the first accused who gave the last stab to Kocheppe and Kocheppe fell down and died. He would also say that while the stabbing took place somebody threw a stone and that it hit on the body of somebody. To a pointed question, on whose body the stone hit, the witness answered that it was on the body of the third accused. P.W. 4 is another shopkeeper. Accused 4 and 7, according to him, got into this shop to purchase some provisions. The first accused was standing on the verandah of the shop. This witness also speaks to the conversation that ensued between the first accused and the deceased and the subsequent stabbing incident. Kocheppe warded off the stab aimed by the second accused, in the course of which he sustained injury on his hand. Kocheppe ran and thereafter all the accused surrounded him and stabbed him. P.W. 7 is a labourer. He was standing in the shop of one Francis, which is marked in the plan. He also speaks generally about the stabbing incident. P.W. 5 is the tea shopkeeper, from whose shop the accused had taken tea before the incident. He does not claim to have witnessed the incident. He saw people running, and, when he got into the courtyard and looked, he saw Kocheppe falling after sustaining injuries. 11. All the above witnesses were cross examined by the defence. It has come out that these witnesses have not seen accused 4 to 8 prior to the incident. P. Ws. He does not claim to have witnessed the incident. He saw people running, and, when he got into the courtyard and looked, he saw Kocheppe falling after sustaining injuries. 11. All the above witnesses were cross examined by the defence. It has come out that these witnesses have not seen accused 4 to 8 prior to the incident. P. Ws. 2, 3, 4 and 5 admitted in their evidence that they knew only accused 1 to 3 and that accused 4 to 8 were not known to them. P.W.7 admitted that he know only the first accused and no other accused. 12. An identification parade was held by P.W.15, the First Class Magistrate, Peermade, on 17th May 1978. Accused 4 to 8 were mixed up with fourteen non suspects. During the parade P.W. 1 pointed out accused 4 and 5 and had his own doubt as to whether the 6th accused was also one of the assailants. P.W. 2 pointed out accused 5 to 7. P.Ws. 3 and 4 pointed out accused 4 to 7. P.W. 5 stated that accused 5 and 7 were among the eight persons who came to his shop. P.W. 7 stated that accused 4, 5 and 7 were among the assailants. P.W. 15, the Magistrate, who conducted the identification parade, gave evidence that the non suspects were persons selected by the counsel for the accused. The learned Sessions Judge rejected the identification made at the parade on the ground that the number of non suspects should have been five times the number of suspects. 13. The purpose of conducting an identification parade during the investigation of a criminal case is to test the veracity of witnesses who are to speak to the identity of the accused. The value of the evidence relating to an identification parade depends upon factors which minimize the chances of identification. There is no rule prescribing the number of persons who should be chosen for the purpose of identification parade. Some decisions have gone to the extent of saying that the number of non suspects should be ten for every suspect, while others held that the proportion of one to five cannot be said to be satisfactory. It was under such circumstances that the trial court rejected the evidence based on identification parade. 14. Some decisions have gone to the extent of saying that the number of non suspects should be ten for every suspect, while others held that the proportion of one to five cannot be said to be satisfactory. It was under such circumstances that the trial court rejected the evidence based on identification parade. 14. It is significant to note, that the details of the identification parade and about the persons identified by the respective witnesses are spoken to only by P.W. 15, the Magistrate, who conducted the identification parade. The witnesses were not shown to the Magistrate, to make out that they were the persons who identified the accused. Apart from the presumption that official acts are regularly performed there is nothing to show that the witnesses examined were the persons who participated in the identification proceedings. The witnesses themselves were not asked whether they took part in the parade. It should be remembered that the evidence regarding test identification parade is introduced in order to make out that the witnesses who identified the accused at the trial stage were not seeing them for the first time after the incident and that they were, on a previous occasion during the test identification parade, in a position to recognise the accused, even though they were mixed up with strangers. When such evidence is introduced it is the right of the accused to challenge the identification at the parade and make out the existence of circumstances which reduce its value. For instance, the accused may successfully establish that prior to the parade, they had been shown to the witnesses. An effective opportunity to challenge the identification during the parade will be available to the accused only if the witnesses themselves speak out to their participation in the parade. Absence of mention by the witnesses themselves about their identification of the accused during the parade will therefore prejudice the accused in their defence, if the court is to act upon such evidence. 15. Reference may, in this connection, be made to the following passage from the decision in Caetano Piedade Fernandes v. Union Territory of Goa ( 1977 (1) SCC 707 ). "Ordinarily, the person who is supposed to have identified the assailants at the test identification parade must himself give evidence in regard to the identification. 15. Reference may, in this connection, be made to the following passage from the decision in Caetano Piedade Fernandes v. Union Territory of Goa ( 1977 (1) SCC 707 ). "Ordinarily, the person who is supposed to have identified the assailants at the test identification parade must himself give evidence in regard to the identification. If he does not himself give such evidence and leaves it to the officer holding the identification parade to do so, the defence would be deprived of an opportunity of cross examination for the purpose of showing that the witness had an opportunity of seeing the accused before they were brought for identification. In any event, the evidence in regard to identification at the test identification parade is at the highest, corroborative piece of evidence." 16. In the instant case since the witnesses were not asked when examined whether they had participated in the identification parade and whether they identified any of the accused the accused lost an opportunity to effectively challenge the evidence based on the test identification parade and therefore much weight cannot be placed on the fact that test identification parade had been held. 17. The evidence of the so called occurrence witnesses already referred to does not also carry conviction. P.W. 1, as already stated, was declared hostile. His version of the occurrence is contrary to the statement made by him in Ext. P-l before the police. He admitted during the course of the examination that among the accused he knew only accused 1 and 3. So far as P.W. 2 is concerned, the cross examination reveals that he was sitting in a chair in his shop. According to him, after the second accused inflicted a stab on Kocheppe, Kocheppe ran towards the K. K. Road and the accused ran after him. The rest of the incident happened thereafter. He would say that he was sitting on a chair placed 2 1/2 feet away from the door, inside his shop when the incident took place and that he got out of his shop only at 7.00 or 7.15 p.m. It is highly doubtful whether he could have seen the occurrence from the place where he was seated. He would say that there were about 50 people assembled at the scene. He would say that there were about 50 people assembled at the scene. If that be so, even in case he could see the occurrence generally from his seat he could not have noticed the individual overt acts of the several accused. So far as P. W. 3 is concerned, he claims that he was seated on a bench in the verandah of the shop of P. W. 2. When the accused ran after Kocheppe he also ran. There are discrepancies between the testimony of P. Ws. 2 and 3 and the evidence of P. W. 4. According to P. Ws. 2 and 3, both P. W. 3 and the deceased were sitting on the bench. On the other hand, according to P. W. 4, Kocheppe alone was sitting on the bench in the shop of P. W. 2. He would depose in court that the accused did not go to the shop whereas in Ext. D-2, the case diary statement, he is seen to have mentioned: Malayalam Though P. Ws. 5 and 7 are also examined in connection with the incident P. W. 5 does not speak to the incident. P. W. 7 does not specify the overt acts but speaks only generally that Kocheppe was seen running from the varandah of the shop of P W. 2 towards the road, that the accused were following him, and that they stabbed Kocheppe. The details are not forthcoming. Going by the testimony of P. Ws. 2, 3 and 4, they could specify only the first stab and the last stab. According to them, the first stab was by the second accused and the last stab was by the first accused. No details regarding what transpired in between is spoken to by them. Thus, generally speaking, the testimony of P. Ws. 2 to 4 and 7 does not carry conviction. Both P. W. 2 and P. W. 3 claim in the course of their evidence in court that they had seen a stone thrown by somebody hitting against the third accused. Evidently this was mentioned by them to explain the injuries on the third accused; but both of them admitted that they did not mention anything about the stone throw when they were questioned by the police. Evidently this was mentioned by them to explain the injuries on the third accused; but both of them admitted that they did not mention anything about the stone throw when they were questioned by the police. According to P. W. 4, after the incident when accuseds 1 and 3 were returning he saw blood on the back of the first accused and also blood flowing from the mouth of the third accused. He also did not mention about the injuries when questioned by the police. In fact, the evidence of P. W. 22, the investigating officer, is that he came to know of the injuries sustained by accuseds 1 to 3 only on 28th April 1978 after a case was registered at the instance of the accused. 18. It cannot be said that the injuries on accuseds 1 to 3 were of a very minor character as to be ignored altogether. The suggestion that some of the injuries could be self inflicted even if acceptable there are other injuries, which have not been explained. During the examination of P. W. 9, the Medical Officer, alternate suggestions were made by the prosecution regarding the cause of injuries. It was suggested that injury No. 1 in Ext. P-3, wound certificate of the first accused, could be caused by a fall on a stone. But the witness denied that it could be so caused and stated that it could be caused by a forceful contact with a knife. As regards the injuries on the third accused the suggestion was that injury No. 1 could be caused during the course of withdrawing a sharp weapon while the eight persons were stabbing the deceased. The medical officer did not overrule the possibility and also stated that injuries Nos. 3, 4 and 5 could be caused by a forcible contact with a blunt object. But, in cross examination by the accused he stated that injuries 1, 2, 6 and 7 could be caused by stabbing with a knife and injuries 3, 4 and 5 by fisting. The witness also stated that if injuries 3, 4 and 5 had been caused by a hard object like a stone there should be external injury on the lip. No such external injury was found. The third accused was treated as an inpatient in the hospital. 19. The witness also stated that if injuries 3, 4 and 5 had been caused by a hard object like a stone there should be external injury on the lip. No such external injury was found. The third accused was treated as an inpatient in the hospital. 19. Ordinarily, if in the course of commission of a crime the accused also sustained injuries it is the duty of the prosecution to explain them. It is no doubt true that if the injuries are of a minor nature and of a negligible character the non explanation by the prosecution may not affect the appreciation of the evidence for the prosecution. But, in other cases, if the prosecution fails to explain such injuries, the inference that follows is that either the prosecution has not placed the full and correct details of the incident before court or that the witnesses who speak to the incident are not credible. The omission has, thus, a substantial bearing in the appreciation of the evidence and in the conclusions to be reached on the basis of the evidence. 20. The effect of the failure of the prosecution in a particular case to explain the injuries on the accused has been dealt with by the Supreme Court in a number of rulings: Reference may be made to the decision in Onkaranath Singh v. State of U. P. ( AIR 1974 SC 1550 ). The Supreme Court held on the facts of that case that the prosecution evidence was not to be thrown overboard simply because the prosecution witnesses did not explain the injuries on the person of the accused. The Supreme Court observed that the effect of non explanation of the injuries on the accused is a question of fact. Each case presents its own features. In some cases the failure to explain the injuries may undermine the evidence to the core and falsify the substratum of the prosecution case. It may also strengthen the plea of self defence. The Supreme Court observed that the effect of non explanation of the injuries on the accused is a question of fact. Each case presents its own features. In some cases the failure to explain the injuries may undermine the evidence to the core and falsify the substratum of the prosecution case. It may also strengthen the plea of self defence. But it cannot be said to be an invariable proposition of law of universal application that as soon as it is found that the accused had received some injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that the injuries were caused to the accused in self defence by the complainant. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises. 21. In Stale of Gujarat v. Bai Fatima (AIR 1975 SC 1475) the Supreme Court observed as follows: "In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all." In Lakshmi Singh v. State of Bihar ( AIR 1976 SC 2263 ), the matter again came before the Supreme Court for consideration and the Supreme Court observed: "It seems to us that in a murder case, the non explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witness who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one ...................... We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, [Criminal Appeal No. 67 of 1971 decided on March 19, 1975 = (Reported in A.I.R. 1975 SC 1478)] there may be cases where the non explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries." In the instant case, as already stated, none of the prosecution witnesses mentioned in their earlier statements that the accused sustained injuries on their person. The theory put forward by the prosecution at a later stage that the injuries could be self inflicted or that they could be caused by the withdrawal of the weapon by the accused as by throw of stones does not appear to be convincing. It follows that the witnesses have not seen the occurrence or if they have seen the occurrence they have suppressed facts and have not cared to put forward before Court, the full details of the occurrence which they claim to have witnessed. In either case, their testimony is something which it is not safe to be acted upon. That means the prosecution has failed to prove under what circumstances Kocheppe met with his death. It follows that the accuseds 1 to 3 cannot be held to be guilty of an offence under S.304 Part I of the Indian Penal Code and they are liable to be acquitted. In the result, Criminal Appeal No. 371 of 1979 filed by accuseds 1 to 3 will stand allowed. Their conviction and sentence are set aside and they will stand acquitted. Criminal Appeal No. 35 of 1980 will stand dismissed.