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CASE NO.: Appeal (crl.)  1375 of 1999

PETITIONER: V.N. Ratheesh

RESPONDENT: State of Kerala

DATE OF JUDGMENT: 06/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Appellant calls in question legality of the judgment  rendered by a Division Bench of the Kerala High Court  upsetting the order of acquittal passed by learned Sessions  Judge Kasaragod, Kerala.  Appellant faced trial for alleged  commission of offence punishable under Section 302 Indian  Penal Code, 1860 (in short the ’IPC’). According to the  prosecution on 23.12.1994 at about 11.15 a.m. he stabbed  one Narayanan (hereinafter referred to as the ’deceased’) to  death at the private bus stand.  The High Court by the  impugned judgment held that the order of acquittal passed  by the trial court was not proper and the appellant was  convicted for the offence punishable under Section 304 Part I  IPC and sentenced to undergo seven years rigorous  imprisonment.  The prosecution version as unfolded during  trial was as follows :

On 23.12.1994 at 11.15 a.m. the accused stabbed  deceased to death at the private bus stand, Kanhangad.  On  Ext.P1 complaint of H.R. Ashokan (PW1) and V.K. Raghavan  (PW 9), Sub Inspector of Police, Kanhangad Police Station,  registered Ext. P.9 F.I.R. in Crime No. 648 of 1994.  The  accused had been taken to the police station by PW1 and  another, from whom MO1 dagger and MO2 sheath were  seized under Ext.P2 mahazar, which was attested by K.  Kanna (PW4), who was allegedly an eye witness.  PW 9 also  visited the scene of incident where PW4 gave the details.  P.  Habib Rahiman (PW10), Circle inspector took over the  investigation at about 2.45 p.m. on the same day.  He held  inquest over the dead body from the mortuary of the  District Hospital, Kanhangad and gave his findings in  Ext.P.11, inquest report, under which MOs.3 and 4, clothes  worn by the deceased, were seized.  Dr. C.V. Jayarajan  (PW8), Asst. Surgeon, District Hospital, Kanhangad,  conducted the postmortem and he set out his findings in  Ext.P8 postmortem certificate.  The accused was arrested,  produced before the Magistrate and he was remanded.   Witnesses were questioned, statements recorded and final  report was filed against him for the aforesaid offence.  He  pleased not guilty to the charge, whereupon prosecution  examined ten witnesses, marked sixteen exhibits and MOs.  1 to 4. When questioned under Sections 313 of the Criminal

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Procedure Code, 1973 (in short the ’Cr.PC’) he denied the  incident  as alleged, gave his own version and said that the  deceased Tharingil Sunny (PW 2) and others never let him  live in peace, that on 19.8.1994they trespassed into his  house, assaulted him, his wife and children. He was  hospitalized for treatment of the injuries sustained. On his  complaint a case was also registered against them.  He had  to leave the place and take up residence in another place.   On the ill-fated day he had come to Kanhangad for  purchasing some articles for his pilgrimage to Sabarimala  and medicines for his child.  At the bus stand the seven  accused persons, against whom he had filed complaint,  along with Aravindakshan (PW3) and one Pappan,  surrounded and attacked him.  The deceased held him and  he was assaulted by one Kutty.  He tried to wriggle out to  escape, when PW2 tried to stab him the blow accidentally  fell upon the deceased.  He denied that he inflicted injuries  upon him as alleged, and maintained his innocence.  He  further stated that the local police was inimical towards him  following a complaint filed by him against the then C.I. and  three police constables.  The investigation was one sided  and biased. Exts. D1 to 3 were marked, but no witness was  examined in defence.

               The trial court after consideration of the evidence  brought on record came to hold that so far as the eye  witnesses PWs 2 and 3 were concerned, there was great  deal of discrepancy in their version about the incident.   PW.4 who was stated to be an eye witness did not support  the prosecution case.  Therefore, it was held that even if the  discrepant part of his evident is eschewed then also his  evidence was not credible and did not inspire confidence.   Similarly the evidence of PW1 did not inspire confidence.   The trial court observed that on a conjoint reading of the  evidence of PWs 2 and 3 it is clear that their version  improbablised the scenario described by the prosecution.   The conduct of PW3 was also indicated to be highly  suspicious.  It was further noted that a friend of PW3, i.e.  Pappan (father of Sasi and Saji) who was also stated to be  standing by his side also resorted to the same unusual  conduct i.e. leaving the deceased who had allegedly received  knife blows even without caring to ascertain as to what had  happened.  Though there cannot be any universal standard  as to how a witness would react, but in this case even after  the accused had left the place of occurrence they did not  care to ascertain as to what had happened to the deceased.   Though this itself is not a determinative factor, the trial  Court has rightly considered this to be a suspicions factor.   The trial Court also referred to various other circumstances  which clearly ruled out the presence of PWs 2 and 3.   Highlighting the deficiencies in the prosecution evidence the  trial Court directed acquittal. In the appeal filed by the  State, the High Court came to hold that the discrepancies  as pointed out by the trial Court were trivial and so called  discrepancies were immaterial and insufficient to disbelieve  them.  Unfortunately the High Court did not analyse the  evidence and in a very cryptic manner discarded the  conclusions of the trial Court.

               Learned counsel for the appellant submitted that  the approach of the High Court is clearly erroneous. The  High Court has not even indicated any reason as to why it  discarded the conclusions of the trial Court and it did not  even refer to the conclusions arrived at by the trial court to  direct acquittal.

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               In response, learned counsel for the State submitted  that the High Court has taken an overall view of the matter.   It is well settled that minor discrepancies in evidence  cannot be a ground to discard the prosecution version.

There is no embargo on the appellate Court reviewing  the evidence upon which an order of acquittal is based.   Generally, the order of acquittal shall not be interfered with  because the presumption of innocence of the accused is  further strengthened by acquittal. The golden thread which  runs through the web of administration of justice in  criminal cases is that if two views are possible on the  evidence adduced in the case, one pointing to the guilt of  the accused and the other to his innocence, the view which  is favourable to the accused should be adopted. The  paramount consideration of the Court is to ensure that  miscarriage of justice is prevented. A miscarriage of justice  which may arise from acquittal of the guilty is no less than  from the conviction of an innocent. In a case where  admissible evidence is ignored, a duty is cast upon the  appellate Court to re-appreciate the evidence where the  accused has been acquitted, for the purpose of ascertaining  as to whether any of the accused really committed any  offence or not. [See Bhagwan Singh and Ors. v. State of  Madhya Pradesh (2002 (2) Supreme 567)]. The principle to  be followed by appellate Court considering the appeal  against the judgment of acquittal is to interfere only when  there are compelling and substantial reasons for doing so. If  the impugned judgment is clearly unreasonable and  relevant and convincing materials have been unjustifiably  eliminated in the process, it is a compelling reason for  interference. These aspects were highlighted by this Court  in Shivaji Sahabrao Bobade and Anr. v. State of  Maharashtra (AIR 1973  SC 2622), Ramesh Babulal Doshi  v. State of Gujarat (1996 (4) Supreme 167), Jaswant Singh  v. State of Haryana (2000 (3) Supreme 320), Raj Kishore  Jha v. State of Bihar and Ors. (2003 (7) Supreme 152),  State of Punjab v. Karnail Singh (2003 (5) Supreme 508 and  State of Punjab v. Pohla Singh and Anr. (2003 (7) Supreme  17).

Judged on the touchstone of the principles indicated  above, the High Court’s judgment is clearly indefensible.  By  making observations in an abstract and general manner it  concluded that the discrepancies were immaterial, without  even discussing the factors which weighed with the trial  court to hold that the prosecution evidence was not cogent  and credible.  Therefore, the order of acquittal should not  have been set aside in the manner as done.  

The appeal is allowed.  The judgment of the High Court  is set aside. The appellant is on bail, bail bonds shall stand  cancelled.