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PETITIONER: K.RAMAKRISHNAN UNNITHAN

       Vs.

RESPONDENT: STATE OF  KERALA

DATE OF JUDGMENT:       18/03/1999

BENCH: G.B.Pattanaik, M.B.Shah

JUDGMENT:

PATTANAIK,J.

     The  appellant and his son stood charged for  offences under  Sections  449, 341, 324 and 302 read with Section  34 IPC  for  having wrongfully restrained PW1 and  hurting  him with  a  stick  and for causing murder  of  deceased  Kesava Pillai,  father of PW1 by stabbing him on his abdomen with a knife  on  17.4.1985  at  11 P.M.   The  learned  Additional Sessions  Judge,  on  a thorough discussion  of  the  entire prosecution  evidence came to hold that the prosecution  has failed to establish the charges beyond reasonable doubt and, therefore,  the  two  accused  persons are  entitled  to  be acquitted and accordingly acquitted them of all the charges. On  an appeal being carried by the State, the High Court  of Kerala  by  the  impugned  Judgment affirmed  the  order  of acquittal passed by the learned Additional Sessions Judge so far  as  the  son  is concerned but reversed  the  order  of acquittal  of  the appellant herein and convicted him  under Section  302  as  well as under Section 324  IPC.   For  his conviction  under  Section  302  IPC, he  was  sentenced  to imprisonment  for  life and no separate sentence was  passed for his conviction under Section 324.

     The  prosecution  case  in the nutshell  is  that  the relationship  between  the accused and the  deceased  Kesava Pillai  was  strained  as the deceased had helped  one  Velu Pillai  with whom the accused had some property dispute.  On 17.4.85 at 11 P.M.  while PW1 was sitting on the varandah of a  shop  near his own house, the accused-appellant  and  his wife  passed  by  that way.  As it was dark, PW1  could  not recognise  them and enquired about their identity, whereupon the  accused-appellant used some abusive language and PW1 in turn, also abused the appellant.  On this score, there was a scuffle  but on the dissuasion of the wife of the appellant, he  left the place.  Few minutes later while PW1 reached the door-step of his house, the appellant accompanied by his son (the acquitted accused) reached there and the second accused dealt a blow on the head of PW1 with a stick and then caught hold  of him and then the present appellant stabbed him with a knife.  On hearing Hullah, the sister of PW1 rushed to the scene.   At that stage when father of PW1 reached the  scene of  occurrence, the appellant stabbed him on his abdomen  on account  of which he ultimately died in the hospital on  the next  day  at 11.30 A.M.  Statement of PW1 was  recorded  at

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1.15  A.M.,  which  was treated as F.I.R., on the  basis  of which   investigation   started  and    on   completion   of investigation,  charge-  sheet was submitted by the  Police. On  being  committed,  the two accused persons  stood  their trial.  The prosecution examined as many as 17 witnesses and exhibited a large number of documents of whom PWs 1 to 3 are the  eye  witnesses  to  the   occurrence.   Of  these   eye witnesses,  PW3 is the daughter of the deceased whereas  PW2 is  a  neighbour.  PW8 is the doctor, who had  examined  the accused No.  1 and issued the wound certificate.  PW9 is the doctor  who  conducted the autopsy on the dead body  of  the deceased  Kesava  Pillai and exhibit P15 is the  post-mortem certificate.   PW14 is the doctor who attended the  deceased Kesava  Pilla as well as PW1 in the Medical College Hospital on  the  night  of  occurrence.    The  defence  version  as reflected  in  the statement of the accused-appellant  under Section  313 Cr.P.C.  is that there was a marriage  proposal emanated  from the deceased but the same did not materialise and  on  that  score there was an enmity.  On  the  date  of occurrence,  while the appellant and his wife had gone for a marriage  negotiation  of their son, PW1 was waiting on  the road.   When  he found that the appellant and his  wife  are coming  ,  PW1 abused them but the appellant came  away  and while  he  reached  near the house of PW1,  deceased  Kesava Pillai  suddenly came on the road with a knife and  attacked him.  The appellant attempted to escape from such attack and caught  hold of the knife and at that point of time,  stones were  thrown by PW1 and his father.  While the appellant had caught  hold of the hand of deceased Kesava Pillai who had a knife  in  his  hand, a scuffle ensued and  deceased  Kesava Pillai  fell down and sustained the injuries on his  abdomen on that score.  The further plea is that it is the acquitted accused  No.   2,  seeing the scuffle, informed  the  Police Control  Room, whereupon the Mobile Police Vehicle came  and picked  up the injured PW1 and the deceased and removed them to  the hospital and PWs 2 and 3 were never at the scene  of occurrence.   On  the basis of the medical evidence  of  the doctor,  who treated deceased Kesava Pillai in the  hospital and  the post-mortem report, the learned Sessions Judge came to  the  conclusion  that deceased Kesava Pillai died  as  a result  of penetrating injuries sustained on his abdomen and the death is homicidal in nature.  Examining the question as to  whether it is the appellant who caused the injury on the deceased  by  stabbing blow with the means of a  knife,  the learned  Sessions Judge scrutinised the evidence of PWs  1-3 and  also scrutinised the medical evidence with relation  to the injury found on the deceased as well as the injury found on  the  person  of PW1 and came to hold that the  story  of alleged  cause  of injury on the occipital region of PW1  as spoken to by the eye witnesses stand totally discredited and disproved by the evidence of PW14 and the injury certificate Exhibit  P11.   The  learned   Sessions  Judge   accordingly recorded  a  finding that the first part of  the  occurrence regarding  the  alleged  beating on the head of PW1  by  the appellant  with the stick as spoken by the witnesses  stands discredited  by the evidence of PW14.  The learned  Sessions Judge  also rejected the contention of the defence that  the non-explanation  of the injuries on the accused is fatal  to the  prosecution as such injuries are superficial in  nature being  a linear abrasion over the left thenar and the linear abrasion  on the hypothenar eminence.  But on examining  the evidence  of the three eye witnesses as well the  suspicious circumstances  appearing  in  the   prosecution  case,   the Sessions  Judge  came  to hold that the accused No.   2  was never  present at the scene of occurrence and he was falsely

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implicated upon by the three eye witnesses.  He also further found  that  when  the  witnesses   have  tried  falsely  to implicate  such person and on account of the inconsistencies between  their  statements, doubt is created in the mind  of the  court  as  to the trustworthiness  of  the  prosecution witnesses  and,  therefore,  it  must   be  held  that   the prosecution  failed  to  establish the charges  against  the accused  persons  beyond  reasonable   doubt.   With   these findings  the two accused persons being acquitted, the State preferred  an  appeal to the High Court.  The High Court  by the  impugned  Judgment, affirmed the order of acquittal  of accused  No.   2 Sreenivasan.  But on re-  appreciating  the evidence  of  the eye witnesses and relying upon  the  same, came  to hold that the prosecution has succeeded in  proving beyond  all reasonable doubt that the accused-appellant  had inflicted  stab  injury on the deceased, besides  inflicting injuries on PW1 and as such he is liable for being convicted under Section 302 as well as under Section 324IPC.  For such conviction he was sentenced to imprisonment for life.

     Mr.    U.R.   Lalit,  the   learned  Senior   Counsel, appearing  for the appellant contended that though the power of the High Court while sitting in judgment against an order of  acquittal is the same as in appeal against a  conviction and  the  court  can re-appreciate the  entire  evidence  on record  but  in  case  of  an appeal  against  an  order  of acquittal  the court is duty bound to examine the reasons on which  the order of acquittal was based and should interfere with  the order after being satisfied that the view taken by the  acquitting  Judge  was clearly  unreasonable.   If  the impugned  judgment  is  examined from  the  aforesaid  stand point,  it would appear that the High Court has not adverted to  the reasons given by the Sessions Judge in recording the order  of acquittal and, therefore, reversal of an order  of acquittal  by the High Court should be interfered with.  Mr. Lalit also further contended that the very fact that the son of the appellant was falsely implicated by the eye witnesses would itself discredit the witnesses and on such discredited version,  the role ascribed to the appellant could not  have been  relied upon.  Mr.  Lalit further urged that though the learned Sessions Judge came to the positive conclusion after a  thorough  analysis of the evidence that the defence  plea was  more  probable  but the High Court never  focussed  its attention  to  the same and has not discussed any  thing  on that  score, which approach vitiates the impugned  judgment. Mr.Lalit  also  urged  before us that  the  prosecution  not having  come forward with a true and correct version of  the occurrence,  the accused is entitled to the benefit of doubt and,  therefore, the order of acquittal should not have been interfered with by the High Court.  Lastly, Mr.  Lalit urged that  even  assuming the blow given by the appellant on  the deceased  can  be  said  to  have  been  established  beyond reasonable  doubt but that would not constitute the  offence under  Section 302 and at the most the offence would be  one under Part II of Section 304.

     The  learned  counsel appearing for the respondent  on the  other  hand submitted that it is too well settled  that the  High Court while sitting in an appeal against an  order of acquittal can re-appreciate the entire evidence on record and  having  done  so and having found the witnesses  to  be reliable,  there is no infirmity with the conviction of  the appellant  under Section 302 IPC.  According to the  learned counsel   for   the  respondent,   the  substratum  of   the prosecution  story  that the appellant gave a fatal blow  on

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the  vital  part  of the deceased on account  of  which  the deceased  ultimately  succumbed is established  through  the cogent  and  consistent evidence of the three witnesses  and such evidence is corroborated by the medical evidence of the doctor  who treated the deceased at the hospital as well  as the  doctor who conducted the autopsy on the dead body  and, therefore,  the  conclusion  of  the  High  Court  that  the prosecution  case  against  the appellant  has  been  proved beyond  reasonable  doubt  is  unassailable  and  cannot  be

 with.   The  plentitude of power available to  the  court, hearing  an  appeal  against acquittal is the same  as  that available  to a court hearing an appeal against an order  of conviction.  But however the court will not interfere solely because  a  different  plausible  view   may  arise  on  the evidence.   In a case of murder, if the reasons given by the trial  court  for  discarding  the   testimony  of  the  eye witnesses  are not sound, then there should be no hesitation on  the part of the High Court in interfering with an  order of  acquittal.   If  the  Judgment of the  trial  judge  was absolutely  perverse,  legally erroneous and based on  wrong testimony,  it  would  be  proper  for  the  High  Court  to interfere  and  reverse  an   order  of  acquittal.   Having examined  the  judgment of acquittal passed by  the  learned Sessions  Judge and the impugned Judgment of the High Court, reversing the said judgment of acquittal and on scrutinizing the evidence of the three eye witnesses, though we find some substance  in the grievance of Mr.  Lalit, appearing for the appellant  that  the High Court has not adverted to all  the reasons  given by the trial Judge for according an order  of acquittal,  but it is difficult for us to come to hold  that the  High Court exceeded its jurisdiction and the parameters fixed  for interference with an order of acquittal.  We find the  approach of the learned Sessions Judge in recording  an order of acquittal was not proper and the conclusion arrived at   by   the  Sessions  Judge   on   several   aspects   is unsustainable.   Even  though, the eye witnesses  appear  to have  exaggerated  their  version and  improved  upon  their version  in giving a role to the accused No.  2 for which an order  of  acquittal passed by the Sessions Judge  has  been affirmed  by the High Court but to bring home the charge  of murder  against  the appellant on the ground that he gave  a stabbing  blow on the deceased on a vital part by means of a knife,  while he came out of his house has been consistently narrated  by  the  three eye witnesses.  There has  been  no embelishment  or exaggeration of these eye witnesses so  far as  the  role ascribed to the appellant from their  previous version  to  the  Police  is   concerned.   Thus  the  basic prosecution  case  as unfolded through the testimony of  the aforesaid  three  witnesses  is fully  corroborated  by  the medical  evidence  of  the two doctors and,  therefore,  the learned  Sessions Judge was not justified in discarding this part of the prosecution case and in acquitting the appellant and  the  High  Court,  therefore,  was  fully  entitled  to re-appreciate the evidence of these witnesses and record its own  conclusion on the question whether the evidence of  the eye  witnesses that the appellant gave the stabbing blow  on the  deceased  can  at  all be sustained or  not.   We  have ourselves   scrutinized  the  evidence  of  the  three   eye witnesses  and  we  are of the considered opinion  that  the reasons  adduced  by  the trial court for  discarding  their testimony  were  not at all sound.  On the other  hand,  the evaluation  of  the  evidence made by the  trial  court  was manifestly  erroneous and, therefore, it was the duty of the High Court to interfere with an order of acquittal passed by

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the  learned Sessions Judge.  In this view of the matter, we are  unable to accept the ultimate submission of Mr.   Lalit that  the High Court exceeded its limit in interfering  with an order or acquittal passed by the learned Sessions Judge.

     The question then remains for consideration is whether on the materials on record can it be said that the appellant gave  the blow on the deceased with the intention of causing murder  of the deceased so as to be convicted under  Section 302 IPC.  The eye witness account of the three eye witnesses is  to the fact that when PW1 cried aloud, his sister rushed there  and  at that point of time his father,  the  deceased came  out,  opening the door and asked as to why his son  is being  beaten up and then the appellant stabbed the deceased on  his  abdomen with the knife.  The post-mortem report  of the  deceased indicates existence of a sutured incised wound inverted  "L"  shaped on the left side of the  abdomen,  the vertical limb was parallel to the midline, 4 cms.  in length and  the horizontal limb from its upper and measured 3  cms. and  was  placed  1.3 cms.  to the left of midline  and  the junction of the two limbs were at the level 25 of umbilicus. The  wound  entered the abdominal cavity.  The doctor  PW14, who  was  working  as  tutor in  surgery,  Medical  College, Trivandrum  and  was  in  the casualty on  17.4.85,  in  his evidence  stated  that the deceased had an incised  wound  4 cms.   long below the umbilicus, left to the midline of  the body with a part of the intestine protruding out and that is the  only injury.  The doctor who conducted the autopsy, PW9 in  his  evidence  also stated that though there  are  three injuries  on the deceased as per the post-mortem report, but injury Nos.  1 and 3 are surgical injuries and injury No.  2 is  the  inflicted  injury.  Thus it is  established  beyond reasonable  doubt that the appellant had given one blow  but the blow no-doubt was quite severe, as a result of which the intestines  had protruded out .  It is however crystal clear that the appellant had no animosity against the deceased and he  was involved because of the altercations with PW1.   The scenario  in which the appellant has been stated by the  eye witnesses  to  have  given one blow on the deceased,  it  is difficult  for us to hold that he gave the blow in  question either  with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death  would otherwise be the inevitable result.  In such  a situation,  even  on accepting the prosecution case we  hold that  the  accused did not commit the offence under  Section 302  but under part II of Section 304 IPC.  We  accordingly, set  aside the conviction of the appellant under Section 302 IPC and instead, convict him under Section 304 Part II.  The incident  is  of the year 1985 and more than 13  years  have elapsed.   The accused is on bail pursuant to the orders  of this  court dated 6th February, 1992.  Mr.  Lalit, appearing for  the  accused-appellant  stated   that  he  has  already undergone   sentence   of  about   four  years.    In   such circumstances,  for his conviction under Section 304 Part II IPC  , we sentence him to the period already undergone.  His conviction  under  Section 324 IPC remains unaltered but  no separate sentence is being awarded.  This Criminal Appeal is disposed  of  accordingly.  The bail bond furnished  by  the appellant stands discharged.