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2002 DIGILAW 824 (KER)

State of Kerala v. Liju

2002-12-16

J.B.KOSHY, K.THANKAPPAN

body2002
Judgment :- Koshy, J. This appeal is filed by the State against the order of acquittal of the respondent who was the sole accused in S.C.No.86 of 1996 on the file of the Additional Sessions Court, Thodupuzha. He was charge sheeted for the offence punishable under Section 302 I.P.C.. 2. The prosecution case was that on 21.11.1995 at 9 p.m. the accused with the intention of committing the murder of one Shaji stabbed him on his left chest with a knife causing grievous hurt as a result of which Shaji died at 9.45 p.m. at St.John’s Hospital, Kattappana. The incident took place at Kanchiyar Pallikkavala-Anchuruli road on the north-east of the house of one Kanjiramthanathu`Surendran. The prosecution examined PWs.1 to 15 and marked Exts.P1 to P15 and M.Os.1 to 9. On the side of the defence, Exts.D1 to D14 were marked. 3. PWs.1 to 3 were examined as occurrence witnesses. PW1 who is the first cousin of the deceased and co-accused in the counter case gave Ext.P1 First Information Statement. PWs.4 and 5 are respectively the younger brother and mother of the victim who saw the accused running away with the knife. PW.6 is the witness to Ext.P3 inquest report, PW.7 is the witness to Ext.P5 mahazar and PW.8 is the witness to Ext.P8 recovery mahazar who became hostile to the prosecution. PW9 is the doctor who conducted postmortem on the dead body. PW.10 who is also a witness to Exts.P5 and P6 recovery mahazars became hostile to the prosecution. PW.13 is the Assistant Sub Inspector of Police, Kattappana who recorded Ext.P1 First Information Statement and PW.14 is the Circle Inspector of Kattappana Police Station who investigated the crime and charge sheeted the accused. PW.15 is the doctor, Taluk Headquarters Hospital, Adimaly who examined the accused and issued Ext.P14 wound certificate. 4. The case of the accused was one of private defence. The identity of the victim and the cause of death are not seriously disputed. Accordingly to him, he was also injured in the incident and was hospitalized. In Ext.P14 wound certificated issued by PW.15 in respect of the accused, the following injuries are noted: 1. Pericardial region was oedematus. 2. Left maxillary area, left side of forehead showed swelling with reckness. 3. Contusion left mastroid area 6x6 cm size. 4. Strike mark on the middle of forehead and obliquely placed 8x4 cm size. 5. In Ext.P14 wound certificated issued by PW.15 in respect of the accused, the following injuries are noted: 1. Pericardial region was oedematus. 2. Left maxillary area, left side of forehead showed swelling with reckness. 3. Contusion left mastroid area 6x6 cm size. 4. Strike mark on the middle of forehead and obliquely placed 8x4 cm size. 5. Pain and swelling of left shoulder with difficulty in moving the left shoulder. 6. Pain and swelling of right ankle joint. 7. Swelling of medical aspect of left scapula.” It is the case of the accused that on 21.11.1995, at about 9.30 p.m. he was assaulted by 5 to 8 men with sticks and two men caught hold of his hands while he was going to his house. The case of the defence is that the prosecution witnesses and the deceased assaulted the accused with a wooden rod and sticks. M.O.5 which was seized from the place of occurance is the weapon used to beat the accused. PW.15 the doctor who examined the accused deposed that the injuries found on the body of the accused could be caused with a weapon like M.O.5. The fact that M.O.5 was recovered from the scene of accurrence was also not disputed. A counter case, S.C.No.87 of 1996 was registered against the deceased and six others, including PW.1 and PW.4 who is the brother of the deceased. It is alleged that during the incident, the accused was beaten by the deceased and others with sticks. (Malayalam) 5. As far as the evidence of PW.1 who is the first cousin of the deceased is concerned, it is to be noted that he was one of the accused in the counter case. He gave evidence to the effect that at about 9 p.m. the accused while going to his house saw the deceased and asked him as to what he would do if he beats Santhosh and thereafter he stabbed the deceased with a knife and ran away. Santhosh is the brother of the victim. PW.2 though cited as an occurrence witness turned hostile to the prosecution. PW.3 who is another occurrence witness stated that on 21.11.1995 at about 8.30 p.m. he saw part of the incident in front of the house of Surendran at a distance of 30 meters away from the place of occurrence. Santhosh is the brother of the victim. PW.2 though cited as an occurrence witness turned hostile to the prosecution. PW.3 who is another occurrence witness stated that on 21.11.1995 at about 8.30 p.m. he saw part of the incident in front of the house of Surendran at a distance of 30 meters away from the place of occurrence. According to him, when he reached near the house of Surendran, he heard a voice from behind and turning back he saw the deceased falling and the accused running with a knife. He did not see the accused stabbing the deceased. There are contradictions in his evidence with the police version. In cross-examination, he also stated that: “ Malayalam” PW.4, the brother of the deceased who was an accused in the counter case also deposed that he saw the accused running with a knife. The defence version is that the accused was trying to escape from the attack of more than six persons. PW.5, the mother of the victim also stated that she saw the accused running along the road with a knife. 6. PW.9 who conducted postmortem examination of the body of the deceased noticed the following antemortem injuries: “1. A small contusion on the left side of the forehead just above the eyebrow. 2. An incised injury just medial to the left nipple 1 ½ cm. Penetrating the thoracic cavity in between the 3rd and 4th intercostal space directed upwards and medially penetrating the right ventricle of the heart.” 7. After considering the entire evidence, the Sessions Court found as follows: “17. The argument advanced before me is that the accused has stabbed the victim with knife so as to escape, as self defence from the attack of the victim and others who have joined and assaulted the accused. The defence case is established from Exts.D1 to D14. Ext.P14 show that the accused suffered 7 injuries that could be caused with weapon like M.O.5 wooden rod. Further, it is proved that while the accused was going to his house along the road in front of the house of Surendran, the victim and his men assaulted the accused and asking did he assault Surendran. Exts.D1 to D14 proved that the victim and others were waiting for assaulting the accused, prior to the incident. Further, it is proved that while the accused was going to his house along the road in front of the house of Surendran, the victim and his men assaulted the accused and asking did he assault Surendran. Exts.D1 to D14 proved that the victim and others were waiting for assaulting the accused, prior to the incident. Further it proved that when the accused was assaulted by the victim and others with sticks and hand, by catching both hands of the accused from behind, he tried to slip away, then Shaji, Liju and Saji caught hold of him from behind, Lalaji and Santhosh caught the left hand of the accused and dragged forwards left, then the accused stabbed the victim. It shows that at the time of stabbing the victim the accused has no intention to cause the murder of the victim. It is also proved that the victim and his men are the aggressors and to escape from the clutches of the victim and his men he stabbed the victim. Thus the prosecution evidence established that the accused has stabbed the victim so as to escape from the assault of the victim and others as self defence and he has no intention to murder the victim at the time of occurrence, or prior to that. The injuries found on the person of the accused also shows that there was intention on the victim and others to cause hurt to the accused. The evidence of prosecution and defence exhibits proved that the victim and his men had caused 7 injuries and these injuries could be caused with M.O.5 and it was recovered from the place of occurrence. 18.From the prosecution evidence, it is proved that the accused has stabbed the victim with M.O.1 knife at the place of occurrence on the alleged date and time. In the same occurrence the prosecution witnesses, especially PW.1, PW.2, PW4 and CW.8 and others attacked the accused and beat with M.O.5 wooden rod and sticks and for escaping from their clutches, the accused has stabbed the victim and there was no intention on the accused to murder the victim. In that incident, the accused also suffered injuries which shows the assault of the prosecution witnesses. In that incident, the accused also suffered injuries which shows the assault of the prosecution witnesses. Further, the prosecution evidence shows that when the prosecution witnesses caught both hands of the accused from behind and assaulted, he tried to slip away from the clutches of them and in order to save his life he stabbed the victim. A counter case registered against the prosecution witnesses, and tried as S.C.87/96. Thus the prosecution evidence proved that the prosecution witnesses especially PW.1, PW.2, PW.4 and CW.8 are joined together, intended to cause hurt to the accused and they assaulted the accused while he was walking in his house along the road in front of the house of Surendran. They are the aggressor attacked the accused and caused injuries so as to escape from the attack of these the accused took M.O.1 knife and stabbed the victim as self defence. These points are answered thus.” 8. We are in full agreement with the finding of the learned Sessions Judge. In any event, going by the prosecution evidence, it cannot be said that it is not a possible view. The incident is alleged to have taken place in front of the house of one Surendran and it has come out in evidence that the accused can go to his house only through the pathway in front of Surendran’s house. The defence story is more probable than the prosecution case. In the matter of appeal against acquittal, the appeallate court shall not interfere except for cogent reasons. No cogent reasons are stated in this appeal warranting interference with the judgment of the Sessions Court. 9. It is true that merely because PW.1, PW.4 and PW.5 are related witnesses, their evidence cannot be discarded. It only puts the guard to scrutinize their evidence with caution and care. Even PW.4 and PW.5, did not see the incident. According to them, they only saw the accused running away with a knife. Defence of the accused is that of private defence. PW.1 who gave Ext.P1 First Information Statement is not only related but also interested and there was a counter case against him regarding the same incident for attacking the accused along with PW.4, deceased etc. Therefore on the basis of his solitary evidence, the defence or private defence cannot be rejected: see the decision reported in Madhusudan Das v. Narayani Bai, AIR 1983 SC 114. Therefore on the basis of his solitary evidence, the defence or private defence cannot be rejected: see the decision reported in Madhusudan Das v. Narayani Bai, AIR 1983 SC 114. The evidence of such witness, though cannot be discarded as elated or interested witness, must be subjected to greater scrutiny: see State of U.P. v. Vinod Kumar, AIR 1992 SC 1011. Here of the version of PW.1 is believed, the serious injuries on the accused sustained at the same time of occurrence will stand unexplained. 10. It was held in Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263 that in such circumstances 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 witnesses 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.” Here the injuries on the accused are not explained by the prosecution witnesses. The evidence of PW.1 is unreliable. No other witness has seen the stabbing. Even PW.3 looked only when he heard a sound after the fatal injury. The evidence of the Investigating Officer PW.14 itself shows that the injuries to the accused as marked in Ext.P14 wound certificate and incorporated in Ext.P13 F.I. Report in S.C.No.87 of 1996 happened at the same time in the same occurrence. In this connection, we also refer to the decision of the Apex Court in Puran Singh v. State of Punjab, AIR 1975 SC 1674 and State of Gujarat v. Bai Fatima, AIR 1975 SC 1478. Here serious injuries on the accused probabilise the case of the accused. 11. Sri.Grashious Kuriakose who entered appearance for the brother of the deceased and in support of the proscution argued that even if there is a right of private defence, the accused has exceeded in exercising this right and he cited the decision of the Apex Court in Suresh Singh v. State of Haryana, AIR 1999 SC 1773. But in that case, there were large number of accused inflicting blows on the deceased with different weapons. But in that case, there were large number of accused inflicting blows on the deceased with different weapons. In these circumstances, the accused exceeded the right of private defence. He also cited the decision in State of U.P. v. Laeeq, AIR 1999 SC 1942. In that case, it was found by the Apex Court that there is no material to show that the deceased tried to assault the accused which will reasonably cause an apprehension of death or grievous hurt on the mind of the accused to raise the plea of private defence. That is not the factual situation here. More than six persons including the deceased attacked the accused with weapons who was alone and going to his own house in the usual route. The plea of private defence need not be proved to the hilt as prosecution has to prove the charges beyond doubt. As held by the Supreme Court in the decision reported in Munshi Ram v. Delhi Administration, AIR 1968 SC 702, burden of the accused with regard to the right of private defence can be discharged by showing the preponderance of probabilities in favour of that plea on the basis of the materials on record. The Supreme Court also held that even if such a plea was not taken up in 313 statement, it is open to the court to consider such plea if the same arises from the material on record. The Supreme Court has held as follows: “It is true that appellants in their statement under Sec.34 Cr.P.C. had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross-examination of the prosecution witnesses as well by adducing defence evidence. It is well settled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from the material on record. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. In Chacko Mathai v. State of Kerala, AIR 1964 Ker.222, Anna Chandy, J. observed: The right of self-defence is a high prized gift granted to the citizens to protect themselves by effective self-resistence again unlawful aggression. No man is expected to fly away when he is attacked. In Chacko Mathai v. State of Kerala, AIR 1964 Ker.222, Anna Chandy, J. observed: The right of self-defence is a high prized gift granted to the citizens to protect themselves by effective self-resistence again unlawful aggression. No man is expected to fly away when he is attacked. He could fight back and when he apprehends death or grievous hurt could see that his adversary is vanquished without modulating his defence step by step. Faced with a dangerous adversary no man can possibly act with a detached reflection and under such circumstances if he travels little beyond the limit, the law protects him and hence Court should not place more restriction on him than the law demands.” In this case when the unarmed accused was attacked by a group of persons with weapons unexpectedly, it can be assumed that he reasonably apprehended death at their hands and he is justified in acting in private defence. In this connection, we also refer to the decision of the Apes Court in Vidhya Singh v. State of M.P., AIR 1971 SC 1857. 12. We have already held that the trial court had considered and accepted the plea of self defence and that view is a possible view. The trial court has considered the entire evidence while acquitting the accused. 12. We have already held that the trial court had considered and accepted the plea of self defence and that view is a possible view. The trial court has considered the entire evidence while acquitting the accused. When an order of acquittal can be reversed in appeal by the High Court is reiterated by the Apex Court in Balbir Singh v. Punjab State, AIR 1957 SC 216 as follows: “It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and views of the trial judge as to the credibility of the witnesses must be given proper weight and consideration; and 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 must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge.” The prosecution was not able to establish that it is a fit case or there are compelling reasons to set aside the order of acquittal passed by the trial court. The Criminal Appeal is accordingly dismissed.