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PETITIONER: SAMBASIVAN & ORS.

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       08/05/1998

BENCH: M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T QUADRI, J.      In this  statutory appeal  under Section  379 Cr.  P.C. accused 1  to 3 in Sessions Case No. 154 of 1984 on the file of the  1st Additional  Sessions Judge,  Trivandrum, are the appellants. They assail the validity of the judgment of June 8, 1989  passed by  a Division Bench of Kerala High Court in Criminal  Appeal  No.  87  of  1986  setting  aside    their acquittal by  the trial  court and convicting and sentencing them as  follows: under  Section 302  read with  Section 34, I.P.C.- imprisonment  for life;  under Section 307 read with Section 34,  I.P.C. -  rigorous imprisonment for seven years and Section  3 of  the  Explosive  substances  Act,  1908  - imprisonment for five years. All the sentences were directed to run concurrently.      In this case Trade Union rivalry between INTUC and CITU on the  one hand  and BMS  on the  other culminated into the atrocious  incident   of  April   21,  1983   in  which  one Thanukuttan @  Nanukuttan died and three persons PW-1, PW-2, and PW-4, suffered injuries. In respect of this incident the police filed  charge-sheet against the appellants and twenty other persons of whom A-13 dies and the remaining were tried on the  following facts  for offences  under Sections  120B, 143, 147,  148, 149, 324, 307, 302 and 109 of the I.P.C. and Section  3  of  the  Explosive  Substances  Act,  1908.  The headload-workers  employed   in  the  industrial  Estate  of Pappanamcode  are   members  of   either   INTUC   or   CITU (hereinafter referred to as ’the complainant group’) whereas ’the accused  group’ belongs  to BMS  union. The  members of ’the complainant  group’ were preventing the members of ’the accused group’ from working in the Industrial Estate. For this reason accused 1 to 20 of the accused group hatched a conspiracy to murder the headload-workers of the complaint group pursuant  to which  A-23  had  agreed  to  supply  the country made bombs on April 20,1983. On the morning of April 21, 1983,  accused A-21  and A-22 took the bombs to a bylane at Vettukuzhi  near the  Pappanamcode Industrial  Estate and gave them  to A-1  at 10.15  a.m. Thereafter with the common object of  causing voluntary  hurt and  causing death of the members  of  the  complainant  group,  A-1  to  A-20  formed

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themselves into  an unlawful  assembly at 10.45 a.m. ; among them A-1  to A-3 were carrying bombs, A-4, A-5, A-10 to A-15 were carrying  bricks and  A-6 to  A-9 and A-16 to A-20 were holding sticks. They proceeded to the said Industrial Estate where PWs  1 to  5 and  7 among  others were relaxing on the platform in  from of  General Metals as there was no work on that date.  While one  of them was reading magazine "Kumari" weekly, the  others were hearing ad Nanukuttan was sleeping. After reaching  there A-1  threw bomb  at PW-1  who suffered injuries on  hands and  thighs; A-2 threw bomb at nanukuttan who was  severely injured and A-3 also threw bomb which fell in front  of PW-2. A-4 and A-5 threw a brick at PW-2. A-6 to A-9, A-19  and A-20 attempted to beat PWs 3,4 and 5. A-6 and A-19 beat  PW-3 with sticks  A-10 to A-15 threw bricks at PW 1 and others whereas A-16 to A-18 attempted to beat PW-1 and others. Nanukuttan  and P.W.  1 were  taken to  the  Medical College Hospital,  Trivandrum where  nanukuttan was declared dead at about 11.15 a.m. In the Medical College Hospital PW- 1, PWs  2 and  4 were  given treatment.  PW-14, the  doctor, examined PWs 1,2 and 4 and issued wound certificates Ext. P- 3,  P-4  and  P-5  respectively.  PW-19  ,  another  doctor, conducted the  post mortem  examination of  Nanukuttan,  the deceased, the issued post-mortem certificate Ext. P-9.      To prove its case the prosecution examined PWs-1 to 22, marked Exts.  p-1 to  P-17 and got M.O.S. 1 to 7 identified. The accused  marked Exts.  D-1 to  D-11 and  XI. The accused denied the charges and claimed to be tried.      On considering  the evidence on record, the trial court acquitted all  the twenty  two accused by its judgment dated February 22, 1985. The State appealed against that judgement and confined its submissions to accused A-1 to A-3. The High Court having  considered the evidence on record found A-1 to A-3 guilty of various offences, convicted and sentences them as mentioned above.      Mr. U.R.  Lalit, the  learned senior counsel, appearing for the  appellants, contended  that the eye witnesses PWs 1 to 5 and PW-7 were interested witnesses being the members of the rival  union,  therefore,  their  evidence  was  rightly rejected by  the trial court but the High Court did not take into account  union rivalry  between the  two groups and the possibility of the complainant group falsely implicating the accused who  belonged to  the rival  group and thus erred in relying upon  their testimony.  He argued  that throwing  of bombs in  its very  nature is  so sudden  that  it  was  not possible that  the witnesses  could have  actually seen  the same; PWs  8 and 9 who are independent witnesses and came to the scene  of occurrence  did not say that they had seen any of the  accused. persons  there. In  any event,  submits the learned counsel,  where two  views are  possible, as in this case, the High Court, in the appeal against acquittal, ought not to  have upset  the acquittal  of the  appellants by the trial court.  Shri G. Prakash, the learned counsel appearing for the  State, invited our attention to the evidence of eye witnesses, P.Ws.  1 to 5 and 7, and submitted that the trial court had arrived at erroneous conclusions from the evidence and that  the approach  of  the  trial  court  was  patently untenable and  that no  reasonable person  could have  taken such a  view, as such the High Court  had rightly interfered with in the appeal against acquittal.      On the  submissions of  the learned  counsel, the short point that  arises for consideration is whether the judgment of the High Court under appeal warrants interference.      The principles  with regard  to the scope of the powers of the  Appellate Court  in an appeal against acquittal, are well-settled. The powers of the Appellate Court in an appeal

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against acquittal  are no  less than  in an  appeal  against conviction. but where on the basis of evidence on record two views are  reasonably possible  the Appellate  Court  cannot substitute its view in the place of that of the trial court. It  is  only  when  the  approach  of  the  trial  court  in acquitting accused  is found  to be clearly erroneous in its consideration  of   evidence  on   record  and  in  deducing conclusions therefrom that the Appellate Court can interfere with the  order of  acquittal. There is plethora of case law on the  subject but  we consider it unnecessary to quote any decisions here; suffice it to refer to a recent judgement of this Court  in Ramesh  Babulal Doshi  vs. State  of  Gujarat (1996) 9  SCC 225, on which reliance is placed by MR. Lalit. In that  case one of us (Justice Mukherjee) speaking for the Court restated the principles as follows:      "This  Court  has  repeatedly  laid      down that  the more  fact that  the      trial  court  can  be  legitimately      arrived at  by the  appellate court      on  reappraisal   of  the  evidence      cannot  constitute   a  valid   and      sufficient ground to interfere with      an order  of  acquittal  unless  it      comes to  the conclusion  that  the      entire approach  of the trial court      in dealing  with the  evidence  was      patently illegal or the conclusions      arrived  at   by  it   were  wholly      untenable.   While    sitting    in      judgment  over   an  acquittal  the      appellate court  is first  required      to seek  an answer  to the question      whether the  findings of  the trial      court    are     palpably    wrong,      manifestly       erroneous       or      demonstrably unsustainable.  If the      appellate court  answers the  above      question in  the negative the order      of   acquittal   is   not   to   be      disturbed.   conversely,   if   the      appellate court  holds, for reasons      to be  recorded, that  the order of      acquittal   cannot    at   all   be      sustained in  view of  any  of  the      above infirmities it can then - and      then only - reappraise the evidence      to arrive  at its  own conclusions.      In   keepings    with   the   above      principles  we  have  therefore  to      first   ascertain    whether    the      findings of  the  trial  court  are      sustainable or not".      We have  perused the judgment under appeal to ascertain whether the  High court  has conformed to the aforementioned principles. We  find that  the High  court has  not strictly proceeded in  the manner  laid down by this court in Doshi’s case (supra),  viz; first  recording its  conclusion on  the question whether  the approach of the trial court in dealing with the  evidence was  patently illegal  or the conclusions arrived at  by it  were wholly  untenable, which  alone will justify interference  in an  order of  acquittal though  the High court  has rendered  a   well considered  judgment duly meeting all  the contentions raised before it. But then will this  non-compliance   per  se  justify  setting  aside  the judgment under appeal? We think, not. In our view, in such a

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case, the  approach of  the Court  which is  considering the validity of  the judgment  of an  Appellate Court  which has reversed the  order of  acquittal passed by the trial court, should be  to satisfy  itself if  the approach  of the trial court in  dealing with  the evidence was patently illegal or conclusions arrived  at by it are demonstrably unsustainable and whether the judgment of the Appellate court is free from those infirmities  ; if  so to  hold that  the  trial  court judgment warranted  interference. In  such a  case, there is obviously no  reason  why  the  Appellate  Court’s  judgment should be  disturbed. But  if on  the other  hand the  court comes to  the conclusion  that the  judgment of  trial court does not  suffer from  any infirmity,  it cannot but be held that the interference by the Appellate Court in the order of acquittal was  not  justified;  then  in  such  a  case  the judgment of   the  Appellate Court has to be set aside as of the  two  reasonable  views,  the  one  in  support  of  the acquittal alone  has to  stand. Having  regard to  the above discussion, we  shall proceed to examine the judgment of the trial court in this case.      In this  case, the  trial court framed as many as eight points for determination which are as follows: (1)  Whether Thanukuttan alias Nanukuttan died of injuries      sustained at 10.45 a.m. of 21.4.1983? (2)  Whether   PW1  sustained  injuries  at  10.45  a.m.  of      21.4.1983? (3)  Whether PWs  2 and  4 sustained injuries soon after the      occurrence at 10.45 a.m. of 21.4.1983? (4)  Whether the  prosecution has  succeeded  in  proving  a      conspiracy punishable  under Section 120B of the I.P.C.      ? (5)  Whether the prosecution succeeded in proving the charge      against A21 to A23? (6)  Whether the  prosecution  evidence  has  proved  beyond      reasonable   doubt   that   offences   under   sections      143,147,148 and  149 of  the I.P.C. have been committed      by A1 to A20? (7)  Whether the  prosecution  evidence  has  proved  beyond      reasonable doubt that Nanukuttan had a homicidal death? (8)  Whether the  prosecution  evidence  has  proved  beyond      reasonable  doubt   the  commission   of  the  offences      punishable under  sections 302,  307  and  324  of  the      I.P.C.  and  the  offence    under  Section  3  of  the      Explosive Substances Act, 1908?" On point  Nos. 1  to 3, the trial court recorded findings in the affirmative,  that is,  in favour of the prosecution and against the  accused; on  point  Nos.  4,5,  6,7  and  8  it recorded the  finding in the negative, that is, in favour of the accused  and against  the prosecution.  In view  of  the limited submissions  made by the prosecution before the High Court we  are not  concerned with  point Nos. 4,5 and 6; the points which are material for our discussion are point Nos.1 to 3  and 7  and 8. In answering the points noted above, the trial court  considered each  point in  isolation  and  thus arrived at conclusions which are inconsistent and erroneous. having recorded the finding on point No.1 in the affirmative it held  that Nanukuttan  had not  died a homicidal death at the place  alleged by the prosecution. In drawing  the above inference the  trial court  relied upon  certain  statements made by  some of the eye-witnesses. The portions in the case diary statements marked as Exts. D-1 and D-1(a) on which the trial court  placed reliance  are to  the  effect  that  the deceased was  sitting at the time of the incident whereas in the evidence  given in  Court it  was  stated  that  he  was sleeping. The  aforesaid contradictions  are hardly material

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to decide  whether he died of a homicidal death at the place of the  incident. While  considering point  No.1, the  trial court accepted  the testimony  of PWs-1  to 5  and 7  on the ground that  the same  was corroborated from the evidence of PWs 8  and 9.  It also relied on the evidence of PWs 8 and 9 in coming  to the  conclusion that  the  deceased  sustained fatal injuries  at the  slanting platform  in front  of  the General Metals  in the  Industrial Estate  at  Pappanamcode. From that  evidence, the  conclusion that  A-2 threw bomb at the deceased  who  was  seriously  injured  and  died  of  a homicidal death,  was irresistible  but the trial court held otherwise which  is patently untenable. We have gone through the evidence  of eye  witnesses, PWs  1 to  5 and  7;  their presence on  the  scene  of  occurrence  cannot  be  doubted because PWs-1, 2 and 4 are injured witnesses and their names are also  found in the FIR (Exh. P-1). Further, PWs. 8 and 9 are independent  witnesses; though  they do not speak of the presence of  the accused  on the scene of occurrence that is for the  reason that they came after the accused and some of the injured  persons had  fled from the scene of occurrence, they, however,  spoke that  they had seen PWs.3 and 4 on the scene  of  occurrence.  From  their  testimony,  it  becomes evident that  the deceased  and some others were taking rest on the  concrete platform  in front of General Metals. While one of  them was  reading magazine  ’Kumari’ and others were hearing, they  noticed magazine  ’Kumari’  and  others  were hearing, they  noticed that  A-1 was having something in the shape of  the tennis  ball which  was wrapped in a paper and which was  thrown by  him at  PW-1;  this  was  followed  by throwing of similar object by A-2 on the deceased, which hit him on  his stomach  and his intestine came out. Immediately thereafter, the  third bomb  was thrown  by A-3  which  fell amidst them.  Mr. Lalit,  however, contended  that the  said witnesses were  interested witnesses  being members  of  the rival union  and, therefore, it would not be safe to rely on their evidence.  We  find  no  substance  in  this  argument because on  examination of  their testimony,  we do not find that any of them were shaken in the cross-examination on any material particulars.  Merely because  they  belong  to  the complainant group,  it cannot  be said  that their testimony cannot be  given due weight. It is nobody’s case that at the time of  occurrence, persons  other than  the members of the rival unions  were present there. After hearing the sound of explosion, some  persons no  doubt  came  to  the  scene  of occurrence, of  whom PWs  8 and  9 have  been  examined  and obviously they  have spoken  to the facts which they noticed only after  the explosion of the bombs. The other witnesses, if any,  would have been of no avail to the defence nor were they necessary for purposes of establishing the quilt of the accused. Therefore,  union rivalry  would not be a ground to brush aside  their evidence after having found that the same is consistent  and  truthful.  It  is  no  doubt  true  that throwing of  bomb is  a sudden  act but  the witnesses  have clearly stated from which direction the accused came and who among them  threw the  country-made bombs  and who  hit with bricks  and sticks. It is not a case where the incident took place in  wee hour  of the night when everybody was sleeping and then  they got up after the explosion and would not have been in a position to see the actual throwing of bombs. They were  all   sitting  on  the  platform  and  were  obviously conscious of  what was  happening in  the surrounding  as is evident from  their statements. We also find no substance in the issue  as to whether the deceased was sitting or lying - a fact  which weighed with the trial court to disbelieve the prosecution   story. It is quite possible that the witnesses

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who stated  that Nanukuttan  was sitting  must have seen him before he  lied down  on the  platform and the witnesses who stated that  he was  sleeping must  have seen  him lying and stated that  he was  sleeping. This  contradiction,  in  our view, does  not affect  the prosecution  case. We  also find that the  case of the prosecution is corroborated by medical evidence of  PWs-14 and 19. PW-14 is the doctor who examined PWs.  1,2   and  4   and  issued   Exh.  P-3,  P-4  and  P-5 respectively. PW-19   is the doctor who conducted autopsy on the  dead  body  of  the  deceased  and  issued  post-mortem certificate, Exh.  P-9. PW-19 sent the pieces of body of the deceased to  Forensic laboratory  for report. Exhs. P-10 and P-11 are  the reports  which show  the presence of explosive substance in  the body  of the  deceased The  blood  clotted newspaper pieces  and twine etc. collected from the scene of occurrence, MOS  5 and  6  ,  were  also  found  to  contain explosive substance  which also corroborates the prosecution story of  throwing of  bomb by  the accused  persons.  There cannot be any possibility of falsely implicating the accused because soon  after the  occurrence,  Exh.  p-1  was  lodged wherein the  overt acts  attributed to  the appellants  were noted. For  these rightly  found  the  appellant  guilty  of offences mentioned in the judgement under appeal.      From the above discussion, it follows that the approach of  the   trial  court   was  patently   erroneous  and  the conclusions arrived  at by  it were  wholly untenable. It is thus mot  the case where two reasonable views on examination of the  evidence on record are possible and so the one which supports the  accused, should  be adopted. The view taken by the trial  court can  hardly be  said to be a view on proper consideration of  evidence  much  less  a  reasonable  view. Therefore, interference  by the  High Court  in  the  appeal against acquittal of the appellant and recording the finding of their conviction for offences under Sections 302,307 read with  Section   34  IPC  and  Section  3  of  the  Explosive Substances Act,  1908, on  consideration of the evidence, is justified. The  judgement under  appeal does not warrant any interference. We  find  no  merit  in  this  appeal;  it  is accordingly dismissed.      Appellants 1  and 3, who are now on bail will surrender to their bonds to serve out their sentece confirmed by us. IN THE MATTER OF :