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PETITIONER: KALLIKATT KUNHU

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       24/02/2000

BENCH: S.S.M.Quadri, S.Rajendra Babu

JUDGMENT:

     RAJENDRA BABU, J.  :

     The  appellant  before us having been convicted  under Section  302  IPC and sentenced to undergo imprisonment  for life, unsuccessfully appealed to the High Court.  Hence this appeal.

     The  prosecution alleged that on 25.9.83 at about 2.30 p.m.   the appellant went to the house of Abdulla and called him  out  when  the said Abdulla was stated to  be  sleeping inside  the  house.  At that time, Hameed, PW1, son,  Manha, PW2,  first  wife of Abdulla and Beevi, daughter of  Abdulla were  sitting  inside the kitchen.  Abdulla came out of  the house  and both, the appellant and Abdulla went to the  shed situate  in  the courtyard of the house.  Abdulla sat  on  a bench  and  the appellant stood near him.  In the course  of their  conversation,  Abdulla  appears   to  have   demanded repayment  of  the money owed by the appellant.  Annoyed  by that  demand,  the appellant is stated to have taken  out  a dagger  proclaiming  that  it  had  been  given  to  him  by Pariyaram  Abbas  to  kill him, stabbed  Abdulla  inflicting injury  on  his chest.  Abdulla was toppled down along  with the  bench.  Hameed, PW1, Manha, PW2 and Beevi rushed to the scene.   Achibi,  PW3, the second wife of Abdulla,  who  had come to draw water from the well near the house, also rushed to the scene.  Again the appellant is stated to have stabbed Abdulla  and inflicted another injury on his left  shoulder. The  appellant  then turned against PW1 and others  who  had reached  near  him.  PW1 caught hold of the  appellant  from behind  and  PW2  took  out  a wooden  stick  and  beat  the appellant.   PW3  took  out  a chopper  and  inflicted  some injuries  on  the appellant.  On account of  the  commotion, some of the neighbours are said to have reached the scene of occurrence.   Wife  of the appellant also came to the  scene and  took  him away from the scene of occurrence.   PW4  and Kariappu were also there in the courtyard at the time of the incident.   PW1 went to the police station and lodged a FIR. On  registering a case, PW17, the Circle Inspector of Police investigated    and   laid   a   charge-sheet   before   the Jurisdictional  Magistrate, who committed the matter to  the Sessions  Court at Tellicherry.  The learned Sessions  Judge framed  charges against the appellant under Section 302  IPC and  the  appellant  pleaded not guilty and  claimed  to  be tried.  Thereafter the matter stood transferred to Kasaragod

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Sessions Division on formation of a court there.  PWs 1 to 7 were examined and several Exhibits and material objects were marked.   Statement  of  the appellant  was  recorded  under Section  313  Cr.PC.   The  appellant  did  not  adduce  any evidence in his defence.

     On behalf of the appellant, the defence set up is that the   incident  did  not  take   place  as  alleged  by  the prosecution.   On  the  other hand, when the  appellant  was returning  home  from Church along the pathway in  front  of Abdullas  house  in  the  afternoon  of  25.9.83,  Abdulla, Hameed,  PW1,  Manha,  PW2  and Kariappu  attacked  him  and inflicted  injuries  upon  him  and  the  appellant  secured possession  of a knife which Kariappu was having and when he fell  unconscious he was taken to the house by his wife  and from  there he was taken to the hospital.  Abdulla asked him and  his wife to give evidence in a case against one Somappa Gowda and they did not agree for the same and as a result of the  enmity  Abdulla and others attacked him.  By  an  order made   on  27.10.88,  the   Sessions  Court  acquitted   the appellant.  However, the High Court in suo moto revision set aside  the  order  of acquittal and remanded  the  case  for proceeding afresh in accordance with law.

     After  remand  the trial court proceeded to  formulate the following two questions:

     1.   Whether the appellant committed murder of Abdulla and is he guilty of the offence punishable under Section 302 IPC?  2.  And if so, what should be the sentence?

     The trial court is of the view that PWs 1 to 4 are the eye  witnesses  to  the incident who have  given  sufficient details  as to how the incident took place and the appellant inflicted  fatal  injuries on Abdulla and caused his  death. In  the  evidence  tendered  by them  it  emerged  that  the OBpellant  owed  some amount to the deceased and the  matter was  settled  at the intervention of PW10, V.K.Gopal,  which amount  was  to  be  paid  by 28.9.83.  PW  1,  son  of  the deceased,  PW2, first wife of the deceased, PW3, second wife of  the  deceased,  and  PW4,   labourer  working  with  the deceased,  were characterised as interested witnesses.  Even after  careful  scrutiny,  the version of  the  incident  as stated  by PWs 1 to 4 could be accepted as there is no basic infirmity  in the same and they are natural witnesses.   The defence  pointed out that there were certain injuries on the appellant also which were not properly explained.  The trial court  noticed  that  the evidence of PWs 1 to  3  who  have stated  that a wooden stick and a knife were used by them to contain the attack on the deceased by the appellant.  Though they  did not say in so many words that they caused injuries to  the  appellant, the trial court held that it  was  clear from  their  testimony that the injuries were caused to  the appellant  by them.  M.O.8 is the weapon, which is stated to have  been  used  by  PW-3 for inflicting  injuries  on  the appellant.  At the time of inquest, M.O.8 was not seized and it was produced before the Circle Inspector of Police by PW3 on  27.8.83,  which was the third day after the incident  as per  the  version of PW3.  There were no bloodstains on  the said weapon.

     The defence claimed that M.O.1 was the weapon used for stabbing  the deceased by the appellant and the said  weapon was  found  sheathed and as such the said dagger  could  not

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have  been  used to inflict injuries on the deceased and  so the  evidence  tendered by the eye witnesses is  artificial. This  aspect  of  the  case is dealt  with  by  the  learned Sessions Judge in the following terms:

     It  is possible that there may have been other knives lying  around  the scene of occurrence.  It is a  matter  of common  knowledge  that  in  the area  in  question  persons belonging  to  the community of the deceased  usually  carry knives in sheaths on their waist belts.  It is possible that the  knife  found sheathed belonged to the deceased.  It  is also  equally  possible as is sometimes the case  that  some persons  may  carry  more than a knife with them.   So  just because  that the M.O.1 was found unsheathed, that by itself is no ground to discredit the entire prosecution case.

     Hence   the  learned  Sessions   Judge  accepted   the prosecution evidence and rejected the case of the appellant.

     The  appellant  had  also pleaded  self-defence.   The trial  court  rejected this aspect of this case  by  stating that  it is not reasonable to assume that a 65 year old  man would  have  attacked the appellant and caused  injuries  to him.   The  occurrence of incident is stated to  have  taken place  in the residence of the deceased.  The appellant  was apparently  in  a  drunken state and PW12 is  a  doctor  who examined  the  appellant  found him under the  influence  of alcohol  and  his  wife appears to have taken him  to  their house having found him when he had fallen on the ground as a result of drunkenness.

     The  trial  court  also noticed that there  were  also several  discrepancies  in the matter and discarded them  as being only of minor nature.

     On  appeal  by the appellant, the High Court  affirmed the  view  taken by the trial court on all aspects.  On  the question  of  the  injuries having been caused by  M.O.1,  a sheathed dagger, the High Court observed as follows :

     PWs  1  to  4 during examination in  court  uniformly identified  M.O.1  as the weapon used by the  appellant  for stabbing  the deceased.  That being so, the fact that  M.O.1 was  found  enclosed in a sheath would not be sufficient  to arrive  at  a conclusion that it was not the weapon used  by the appellant for causing the death of the deceased.

     The  High  Court took into consideration  the  inquest report  had  disclosed that the bloodstained  plastic  shoes worn  by  the deceased were found near the dead body;   that the  bench  where the deceased sat had toppled down  on  the ground  of chappa (shed) ;  that a dagger (MO1) was found in a   sheath  near  the  basement  of  the  chappa  and   that bloodstained  soil  (MO  11)  was   found  in  the  chappa.. However,  MO4  mundu (dhoti), MO5 bottle  containing  arrack were  found  on  the southern side of the  pathway  starting eastwards  from  the  house  of   the  deceased  which   was approximately  two  and a half metres away from the  chappa. MO4 and MO5 are stated to belong to the appellant.  The High Court  opined that the appellant was under the influence  of alcohol  and while rushing towards his house could have lost his  mundu and the bottle on the way and the incident  could have taken place only at the residence of the deceased.  The

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High  Court  agreeing with the trial courts view  dismissed the appeal.

     The  learned counsel for the appellant did not dispute the  fact  of  deceased  having  met  with  homicidal  death considering  the  nature of injuries on him as disclosed  in the  post-mortem report.  He, however, put forth two aspects of  the  case in the forefront:  (i) inquest report  clearly indicated  that  the dagger (MO1) was found in a sheath  and (ii)  it  is  also  in evidence that  MO4  {dhoti}  and  MO5 {bottle}  were  found  on the southern side of  the  pathway starting  eastwards  of  the  house  of  the  deceased,  and submitted  that  these  two   circumstances  are  enough  to demolish  the prosecution case.  The learned counsel for the State  relied  on the reasoning of the trial court  and  the High Court as set out in their judgments.

     If,  as stated by the eye witnesses, PWs 1 to 4,  that MO1  (dagger) was used to inflict injuries upon the deceased the same could not have been found enclosed in a sheath near the  basement  of  the chappa.  It should  have  been  found unsheathed  and  ought to have had some  bloodstains.   This factor  strongly  probablises the version put forth  by  the appellant  that  the  incident has not taken  place  in  the manner  narrated  by  the  prosecution  witnesses.   If  MO1 (dagger)  is  not  used  to inflict the  injuries  upon  the deceased there is no other weapon of offence produced before the  trial court.  It is also in evidence that the said  MO1 did  not  belong  to  the appellant but on  the  other  hand belonged  to  Pariyaram  Abbas who had also  been  examined. Further  it  is  not probable that when  the  appellant  was trying  to  run away towards his house he dropped his  mundu and  liquor  bottle which are found on the southern side  of the pathway starting eastwards of the house of the deceased. If  the appellant was in a state of drunkenness and found to have been picked up by his wife leaving the dhoti and bottle on  the pathway where it was found, it is more probable that the  incident could not have taken place, as alleged, in the shed.   If  as alleged the incident had taken place  in  the shed  it is not probable that these two MOs could have  been found in the pathway.  Thus these two important factors have been  lost  sight of by both the courts below.  The  version given  by  the  eye witnesses get tilted by  the  weapon  of offence  not  having been found but what was produced  being sheathed  could not have been used for inflicting  injuries. Viewed  from that angle, we have no hesitation to accept the version  put  forth by the defence and set aside  the  order made  by the High Court affirming the judgment of the  trial court sentencing the appellant to imprisonment for life.

     In  the result, we are satisfied that there is no case made out against the appellant.  We set aside the conviction and  sentence  of  the  appellant and  set  him  at  liberty forthwith  unless  he  is required in any other  case.   The appeal is allowed accordingly.