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2004 DIGILAW 286 (KER)

Jenson @ Mathan v. State of Kerala

2004-06-24

K.A.ABDUL GAFOOR

body2004
Judgment :- The appellant is faced with conviction under Section 304 Part-I IPC and sentence to undergo rigorous imprisonment for 8 years and imposition of fine of Rs.10,000/- With a default sentence of two years imprisonment. The charge was under Section 302 IPC. The court below found that he was entitled to the benefit of exception No.4 to Section 300 IPC. That was why he was found guilty of the offence punishable under Section 304 Part I I.P.C. 2. Assailing the conviction, it is submitted that, out of the 9 Witnesses cited as occurrence Witnesses, namely PWs.1 to 9, only PW9 who was none other than the father of the deceased alone supported the prosecution case. What was available was the sole testimony of PW.9, who is almost an interested witnesses. Therefore, the trial court was not justified in convicting the appellant/accused relying on the said sole testimony. It is further submitted that, he had only seen a part of the occurrence. How the occurrence had really happened is not divulged by PW9. So the genesis of occurrence has not come to light. It is again submitted that, as spoken to by PW9, two of his other sons had been present on the scene of occurrence but they have not been cited as occurrence witnesses. It is further submitted that Ests.D1(a) to (f) contradictions marked through PW9 will reveal that he had not spoken consistently with respect to the occurrence, before police and before the court below. So it is not safe to rely on that sole witnesses to fasten conviction. It is again submitted that he had seen only the accused stabbing thrice. But there are several other injuries on the body of the deceased as evidence by postmortem certificate issued by PW.10. So the occurrence is not in time with the evidence of PW9. 3. It is again submitted that, PW9 did not know Malayalam. He was a Tamiliyan, admittedly by the prosecution. He gave evidence before the court in Tamil. His deposition was written by the court in Malayalam, availing the service of an interpreter. The interpreter has not been administered oath as required under Rule 52 of the Criminal Rules of Practice. So the evidence of PW9 cannot be taken note of at all. 4. PW9 being father of the victim, of course, he will have that much interest. His deposition was written by the court in Malayalam, availing the service of an interpreter. The interpreter has not been administered oath as required under Rule 52 of the Criminal Rules of Practice. So the evidence of PW9 cannot be taken note of at all. 4. PW9 being father of the victim, of course, he will have that much interest. But that does not mean that evidence of such a person shall be rejected always as not cogent and convincing. Merely because other occurrence witnesses like PWs.1 to 7 did not support the prosecution case, it cannot be concluded that PW9 cannot be relied on, if his evidence reposes confidence in the court and the court feels it trustworthy. Therefore, the court below was perfectly correct when it came to the conclusion that PW9 the father of the victim can necessarily be believed, if his evidence is convincing. 5. PW9 was admittedly a Tamiliyan. He did not know Malayalam. Necessarily, if police had recorded his statement it was possible that there may be some variations. The contradictions marked as Exts.D1(a) to D1(f) if we read along with the evidence given by PW9 as translated in the court below, it can easily be seen that the alleged contradictions were variations in language and cannot in any way be termed as embellishment or embroideries added by PW9 later. 6. Of course, his deposition before the court below was taken down by the court after it being translated by a senior Advocate of that court, Mr. Narayanan who did know Tamil. There is no dispute that Mr. Narayanan knows Tamil. 7. Rule 52 of the Criminal Rules of Practice obliges the court to administer oath to an interpreter. Even though, the court below termed Mr. Narayanan as interpretor in the deposition as well as in the judgment, really he was not an interpretor. He was only translating what the witness had disclosed to the court. Rule 52 obliges the court to administer oath only to the interpretor. Literal meaning of the interpretor shows that the duty of the interpretor is to explain whereas the duty of the translator is to give the meaning in another language. In such circumstances one shall take interpretor and transilator in different sense as those are. Rule 52 obliges the court to administer oath only to the interpretor. Literal meaning of the interpretor shows that the duty of the interpretor is to explain whereas the duty of the translator is to give the meaning in another language. In such circumstances one shall take interpretor and transilator in different sense as those are. The obligation to administer oath as contained in rule 52 of the Criminal Rules of Practice is only when service of an interpretor is obtained and not when the service of a translator is made use of. There is nothing illegal in Sri. Narayanan acting only as a transilator, without administration of oath. 8. PW1 had spoken to before the court below that his son Ganesh had been distributing the day’s wages to his other sons and others. It was at that time the accused came to that son and demanded Rs.20/-. The prosecution case was that the accused was demanding “Gunda fees” and that he had been in the habit of levying such fees from the workers. But PW9 did not support the prosecution case in that regard. He only stated that he demanded Rs.20/- from his son, but his son refused. If he had any intention to rope in the accused unnecessarily, he would have fully supported the prosecution case. That means PW9 as far as possible supported truth and deposed only what he did really know. According to him there was scuffle between the two. He saw only, as spoken to in the cross-examination, three instances of stabbing; but he was injuries were inflicted, any other stabbing had taken place. Obviously when there was scuffle, even one sees the incident from very close, it cannot be possible to say how many stabbing had taken place during the scuffle. So the evidence given by PW9 is natural. When PW9 was available, the prosecution is not expected to overburden itself by citing further more witnesses including the brothers of the deceased, to speak the same thing. Therefore non-examination of the brothers of the deceased as occurrence witnesses does not adversely affect the prosecution case. 9. Ext.P7 shows that there were several incised injuries on the chest, arm and hip etc. Three of the injuries were on the chest. Of course one was fatal. Thus there was an intention to cause death by stabbing. Otherwise there was no reason for inflicting that much injuries. 9. Ext.P7 shows that there were several incised injuries on the chest, arm and hip etc. Three of the injuries were on the chest. Of course one was fatal. Thus there was an intention to cause death by stabbing. Otherwise there was no reason for inflicting that much injuries. 10. The evidence of PW9 is to the effect that accused has come to the deceased demanding Rs.20/-, which really, he was not, entitled. In such circumstances he was the real nail for the occurrence. In such circumstances there arises no question of a plea of right of private defence, even from the evidence, if available. 11. Of course if the accused had the intention at the initial stage to cause death of the deceased, when he refused to pay the amount he could have directly stabled him. But what happened immediately was a scuffle. Consequently, the stabbing would have taken place out of the heat of passion during sudden quarrel. Necessarily, the court below was perfectly justified in giving the benefit of exception No.4 of Section 300 to the accused. The imprisonment ordered is only for 8 years. The fine imposed is only Rs.10,000/-. Of course, default sentence is too heavy. That shall be reduced to six months. In every other respect order of conviction and sentence is confirmed. Appeal is dismissed.