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2011 DIGILAW 1190 (KER)

Jayachandran @ Kannan v. State of Kerala

2011-12-14

B.BASANT, CHITAMBARESH

body2011
Judgment :- BASANT, J. 1. The agony and helplessness of a court which is unable to promptly allot the time of the court to the litigant who needs it and deserves it haunts us always-particularly in this jurisdiction. The appellant needs, may be 3 hours of our time. We are not able to allot that time to him now. He may have to wait in the queue for long to get that small bit of time allotted to him. 2. The request of the appellant/petitioner appears to be too legitimate. He prays that this appeal filed as early as in October, 2010 may be taken up for hearing. If that is not possible for this Court, the learned counsel prays that the application for suspension maybe taken up for consideration and favourable disposal. 3. In the interests of transparency and accountability, we think that we owe an explanation to the Bar and the polity about the manner in which appeals are being taken up. As on date, we find that a total number of 652 criminal appeals are pending before the Division Bench of this Court as per the details shown below: PENDING STATEMENT FOR CRIMINAL APPEAL DB CASES FROM 2006 TO 2011. 4. In addition to these appeals, 8 Death Sentence References are also pending. They certainly deserve to be taken up out of turn. We have already issued specific directions that records be kept ready and all these Death Sentence References be called on the date of reopening after Christmas vacation on 02.01.2012. We shall thereafter take up the Death Sentence References one after the other strictly in the order of pronouncement of the judgments. 5. We are now dealing with appeals of 2007. All such appeals have been included in the 500 list. The order of priority is given on the basis of the dates from which the appellants are in custody. The Registry has been strictly instructed to show in the cause list the dates from which the respective accused remains in custody. Specific and peremptory directions have been issued that appeals shall be listed and taken up only in accordance with the dates on which the accused/appellants have remained in custody. We have now listed cases of 2007 in the 500 list. Specific and peremptory directions have been issued that appeals shall be listed and taken up only in accordance with the dates on which the accused/appellants have remained in custody. We have now listed cases of 2007 in the 500 list. The five senior most appeals among them come into the 300 list each day and they alone are expected to be taken up for hearing every day. This order shall be strictly followed and the registry is directed not to include cases in the 300 list or 500 list except in accordance with the above directions unless specific further directions are issued by this Court. We make it clear that specific directions for out of turn hearing shall be issued only if just and exceptional reasons are shown to exist. Any appellant who is in custody for a longer period than the appellants in the 300 or 500 lists can apply for inclusion of their cases in the 300 or 500 lists. 6. We must say that we have great concern that we are not able to take up criminal appeals at the earliest. This obliges appellants to remain in custody for long periods pending disposal of the appeals. But considering the state of pendency in this court, we cannot attempt anything better. At the average rate of one appeal a day or three appeals in two days, it appears that it will take a long time before the case of the appellant comes up for hearing in the regular course. Only one bench is dealing with criminal appeals. We have our sympathies with the persons waiting in the queue. But we do not think it proper to permit persons to jump the queue or give out of turn postings for hearing and disposal for any appeal. We sympathetically take note of the frustration of appellants who are languishing in prisons pending disposal of their appeals, when they come to know that appeals preferred later are being taken up for disposal. 7. It is perhaps unfortunate that the system which values the concept of personal liberty and the right to life under Article 21 of the Constitution to be sacro sanct and central is not able to take up appeals for consideration and disposal at the earliest. 7. It is perhaps unfortunate that the system which values the concept of personal liberty and the right to life under Article 21 of the Constitution to be sacro sanct and central is not able to take up appeals for consideration and disposal at the earliest. These are days when the system under the new regimen of Liberlisation, Privatisation and Globalisation is thinking of the need for special commercial benches for the high courts. But unfortunately we are unable to find time to promptly take up death sentence references and regular appeals preferred by persons in custody. We can only say that we shall make every endeavour to take up cases strictly in accordance with the seniority above specified as expeditiously as possible. 8. Having so explained to the appellant why we are not able to take up his case out of turn, we deem it necessary now to consider his claim for suspension of sentence. Traditionally and conventionally, this court has been reluctant to direct suspension of execution of sentences of imprisonment for life unless compelling reasons are shown to exist. The appellants must be shown to have a very good case for acquittal or mitigation before the prayer for suspension is considered favourably by this court. This has historical and justifiable reasons as this court has always been able to take up criminal appeals (DB) relatively quicker. Thinks appear to have come to a bad pass now and we note that the appeals which we are taking up now are appeals of 2007, where the offenders have remained in custody from 2004. If the queue gets longer, may be the traditional reluctance to suspend a sentence of imprisonment for life may even have to be reconsidered. We leave this there at the moment. We find no reason now to deviate from the well established practice in this court of looking for satisfactory and compelling reasons to suspend a sentence of imprisonment for life. 9. We note that in many appeals application for suspension is pending. Unless counsel request, it may not be possible for this court to identify such pending applications and call them. If any counsel feels that he has a worthy case for suspension consistent with the settled norms, it will be upto him to press his claim for suspension whereupon the same shall be taken up for consideration. Unless counsel request, it may not be possible for this court to identify such pending applications and call them. If any counsel feels that he has a worthy case for suspension consistent with the settled norms, it will be upto him to press his claim for suspension whereupon the same shall be taken up for consideration. We definitely owe at least that much to the appellants in custody, whose cases we are not able to take up immediately for final hearing. 10. We come to the specific facts. The appellant is the first accused. He along with six others faced indictment inter alia for the offence punishable under Section 302 IPC read with Section 149 IPC. The learned Sessions Judge found that all the other accused are entitled to the benefit of doubt. They have been found not guilty and acquitted. There is no evidence to assume that the accused were actuated by any common intention or were acting in prosecution of any common object, the learned Sessions Judge has clearly held. The appellant has been found guilty for inflicting the fatal injury on the deceased, that is injury No.1 described in Ext.P6 postmortem certificate. 11. We are forced to refer to the facts. We would like to enter a caveat that we do not intend to express any final opinion on the questions argued before us. We shall only briefly refer to the contentions as otherwise the mandatory requirement of natural justice-a reasoned decision, would not be satisfied. 12. The prosecution alleged that the seven accused persons-all friends, were having enjoyment and merriment for the entire day. At the end of the day, they were near the high school junction in Kollam town. It was about 10.20 p.m. One of them (PW4) had to take a bus to go to his native place. Several buses which came that way went without stopping. They were ultimately able to stop (or ensure slowing down of) the bus in question-‘Kuttappan bus’. When the bus slowed down, PW4 got into the running bus. The bus bore a board which showed that the bus was proceeding to Chavara. But the crew asserted that it will not go up to Chavara and will go only up to Ramankulangara. PW4 was obliged to get down. Pw4 as well as the other friends on the road raised objection to this attitude of the crew. The bus bore a board which showed that the bus was proceeding to Chavara. But the crew asserted that it will not go up to Chavara and will go only up to Ramankulangara. PW4 was obliged to get down. Pw4 as well as the other friends on the road raised objection to this attitude of the crew. There was a quarrel. In the course of the quarrel, some damage was caused to the bus. An altercation followed. An attack was allegedly unleashed against the friends on the road by the accused persons who came in the bus. The deceased and PW2 suffered injuries with a dangerous weapon in the course of that incident. It is the case of the prosecution that seven accused persons were either the owners/representatives or crew of the bus. They had unleashed an attack on persons who raised objections to the bus not carrying passengers to its proclaimed destination. 13. The court below found that there was satisfactory identification of the appellant/first accused. His identity has been established, it was held. His conduct of inflicting injuries on PW2 and the deceased has also been proved, held the learned Sessions Judge. The appellant/first accused was thus found guilty of inflicting the fatal injury on the deceased and the injury on PW2. 14. Various contentions have been raised before us by the learned counsel for the appellant. There is nothing to show that the appellant was present at the scene, it is contended. There is no semblance of evidence to even remotely infer that the appellant was a member of the crew of the bus or in any way connected with the bus, it is argued. No overt act has been proved against the appellant and the evidence of PW2 on this aspect should have been rejected lock, stock and barrel, contends the learned counsel. The learned counsel for the appellant however realistically submits that in this application for suspension, the appellant wants to particularly emphasise only the point that even if the entire evidence were accepted, the right of self defence in favour of the appellant is very evident. Mischief was committed against the bus. A right of private defence of property had arisen. The learned counsel for the appellant however realistically submits that in this application for suspension, the appellant wants to particularly emphasise only the point that even if the entire evidence were accepted, the right of self defence in favour of the appellant is very evident. Mischief was committed against the bus. A right of private defence of property had arisen. The events that took place there, have to be considered in the light of the admitted fact that damage was caused to the bus and the offence of mischief against property had been committed by those who were outside the bus. An apprehension of grievous hurt in the course of such commission of mischief had legitimately arisen. In this context, it has to be seen that even if the entire case of the prosecution were accepted, the appellant/accused is entitled to contend that he was protected by the right of private defence. At least the court must favourably consider his plea that it is a case of exceeding the right of private defence. The offence under Section 302 IPC cannot in any case be made out. In these circumstances, suspension of sentence deserves to be granted, contends Sri. Bechu Kurian Thomas, the learned counsel for the appellant vehemently. 15. The learned Prosecutor contends that there is sufficient evidence to indicate that the appellant was present at the scene; that he was carrying the weapon; that he had indulged in wanton act of aggression against the deceased and PW2 and that the injuries were inflicted on the deceased and PW2 who were only fleeing from the scene of the crime apprehending contumacious violence on the part of the accused. In these circumstances, in any view of the matter there can be no claim of right of private defence, contends the learned Public Prosecutor. 16. We need consider only the claim for the right of private defence and of course the plea that at any rate it can only be said that there was exceeding of the right of private defence. That is the only point pressed in this application for suspension. We need not hence go into the materials available to indicate the presence of the appellant at the scene, whether he was connected with the other accused and the bus or about the overt acts alleged against him. That is the only point pressed in this application for suspension. We need not hence go into the materials available to indicate the presence of the appellant at the scene, whether he was connected with the other accused and the bus or about the overt acts alleged against him. We may in passing observe that on the basis of those contentions, we do not at all feel that this is a fit case where the sentence of life imposed on the appellant can, need or deserves to be suspended. 17. We come to the plea about the right of private defence. The learned Public Prosecutor alertly points out that such a plea has not been raised at all. Reliance is placed on Section 105 of the Evidence Act, which mandates that the burden is on an indictee, who claims a general exception to criminality under the Penal Code (right of private defence is one) to bring his case within the four walls of such exception. The learned Prosecutor points out that the accused had not raised such a specific plea at all before the court below. The court below was not specifically called upon to and had not considered that plea. May be because of his over involvement with his attempt to deny his presence at the scene such a plea was not specifically raised by the appellant, points out the learned Public Prosecutor. 18. The law on the point is very clear. The burden under Section 105 rests on the shoulders of the indictee. But that cannot absolve the court of its obligation to consider the right of the accused to claim protection under one of the general exceptions, if from the totality of facts the availability of such a defence emerges. However, we must remind ourselves that we are at the stage of suspension of sentence. We take note of the fact that such a plea has not been raised at all. This is not to say certainly that the appellant is not entitled to claim such right of self defence or to claim benefit of doubt. This does not also affect his right to contend that act must fall under exception 2 (or any other) to Section 300 IPC. For the moment we do only note that such a plea has not specifically been raised by the appellant. 19. This does not also affect his right to contend that act must fall under exception 2 (or any other) to Section 300 IPC. For the moment we do only note that such a plea has not specifically been raised by the appellant. 19. The learned Prosecutor points out the evidence of PW2 to suggest that it was a brazen attack on PW2 and the deceased who were fleeing to safety from the scene of the crime. PW2’s evidence certainly indicates that. The learned counsel contends that, that version of PW2 cannot be safely accepted. We tried to locate the precise spot of first occurrence where the bus was stopped and the spot where the infliction of injury took place. We must say that a reading of the scene mahazar and the perusal of the scene plan does not offer crucial assistance to us on this aspect. 20. Be that as it may, the learned Prosecutor points out that both the deceased and PW2 had suffered injuries on their backs. Two injuries on the deceased are seen located on his buttock. The one injury on PW2 is also seen located on his buttock. The rhymes well with the version of PW2 that the victims were involved in the act of escape to safety from the scene of occurrence. We come to no final conclusions and we are only referring to the contentions of the learned Prosecutor. Injuries 4 and 5 suffered by the deceased described in the postmortem certificate are relied on by the learned Prosecutor in support of this contention. The evidence available about the injury on PW2 is also relied on by the prosecutor. 21. The learned Prosecutor further submits that the fatal injury, injury No.1 could have been suffered only after injuries 4 and 5 were suffered-going by the evidence of PW2 the eye witness on whom the court below has placed reliance. The learned Prosecutor presses into service these circumstances to support his contention that attack was on the rear and that too against persons who were running away from the scene seeking safety. The learned Prosecutor relies on the circumstance that at any rate, the victims could not have been the aggressors as they were only legitimately insisting that a public transport vehicle must run to the destination as revealed from the destination board. The learned Prosecutor relies on the circumstance that at any rate, the victims could not have been the aggressors as they were only legitimately insisting that a public transport vehicle must run to the destination as revealed from the destination board. An intention to attack and be the aggressors (on the part of the victims) cannot even remotely be assumed, contends the learned Prosecutor. The learned Prosecutor further submits that the nature of the weapon used for the attack by the appellant does not also take the appellant too far in his claim for the right of private defence. The initial incident was only altercation consequent to the dispute about the bus not plying up to its destination. Of course we get an indication that there was some damage on the bus also. The learned Prosecutor in these circumstances contends that there is absolutely no necessity for this Court to deviate from the established practice that a sentence of imprisonment for life shall be suspended only if satisfactory and compelling reasons are shown to exist. No such compelling reasons are there, contends the learned Prosecutor. 22. Conscious of the need not to expatiate we express our conclusion that we do not find any sufficient or satisfactory reason to suspend the sentence of imprisonment for life. The exercise of weighing the materials on golden scales will certainly have to be postponed to the stage of hearing the appeal. 23. This petition is accordingly dismissed. The appeal shall be listed for hearing and disposal in the usual course as expeditiously as possible. 24. Incidentally, we draw on our personal experience to perceive the plight of appellants in custody who have preferred appeals and who languish in prisons with no information as to whether their appeals have been received, admitted, numbered or disposed of. We direct that the Registry shall take orders on all such appeals as soon as they are received. Thereafter the fact that such appeal has been numbered and admitted along with number of the appeal and the name of the Legal Aid Counsel allotted to the appellant shall be communicated to appellant in custody. A copy of the judgment in such appeal shall also communicated to the appellant in custody (represented by legal aid counsel) immediately after the appeal is disposed of free of costs, whatever be result of the appeal. A copy of the judgment in such appeal shall also communicated to the appellant in custody (represented by legal aid counsel) immediately after the appeal is disposed of free of costs, whatever be result of the appeal. Specific directions in each case need not and shall not be issued hereafter by us. Registry shall carry out these directions. We expect subordinate appellate courts also to follow such procedure. 25. A court under our system does not make policy statements. But to convey to the Bar and polity the principles, practice and the procedure that we follow in the matter of hearing of appeals and suspension of sentence, we certify this Order for reporting.