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PETITIONER: SETHU MADHAVAN NAIR & ORS.

       Vs.

RESPONDENT: THE STATE OF KERALA

DATE OF JUDGMENT09/08/1974

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ CHANDRACHUD, Y.V.

CITATION:  1974 AIR 1857            1975 SCR  (1) 673  1975 SCC  (3) 150  CITATOR INFO :  F          1976 SC 832  (6)  R          1977 SC 785  (12)

ACT: Code of Criminal Procedure S. 417 -Appeal under Practice and Procedure  Scope  of  power of High Court  to  review  trial Court’s Judgment.

HEADNOTE: The appellants were tried for the offence of murder but were acquitted  on  the  ground that there was  no  reliable  and convincing  evidence against them.  The High Court  reversed the judgment of acquittal and convicted and sentenced them. On  the  question  whether the High Court was  in  error  in reversing  the  finding of acquittal  recorded  by  Sessions Judge. Allowing the appeal. Held  :  The  High  Court was  in  error  in  reversing  the judgement  of  the  court.  The  Sessions  Judge  had  given convincing   and    cogent  reasons  in   support   of   his conclusions.   The  view taken by him can, by no  means,  be described as unreasonable.  Even if the High Court felt that on  the  material  on  record  a  different  view  was  also possible,  that fact did not justify interference  with  the judgment of acquittal.  If two conclusions can be reached on the  basis of the evidence on record the High  Court  should not interfere with the finding of acquittal recorded by  the trial court. [679-D] In  an  appeal under s. 417 Cr.  P.C. against  an  order  of acquittal, the High Court has full power to review at  large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order  of acquittal  should  be  reversed.  No  limitation  should  be placed  upon that power unless it be found expressly  stated in  the Code, but in exercising the power conferred  by  the Code  and before reaching its conclusion upon fact the  High Court  should give proper weight and consideration  to  such matters  as  (1)  the  view of the trial  judge  as  to  the credibility  of  the  witnesses;  (2)  the  presumption   of innocence in favour of the accused, a presumption  certainly not  weakened by the fact that he has been acquitted at  his trial;  (3) the right of the accused to the benefit  of  any

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real  and  reasonable  doubt; and (4)  the  slowness  of  an appellate  court in disturbing a finding of fact arrived  at by  a judge who had the advantage of seeing  the  witnesses. The  High  Court should also take into account  the  reasons given by the court below port of its order of acquittal  and must  express  its reasons in the judgment which led  it  to hold that the acquittal was not justified.  Further, if  two conclusions  can be based upon the evidence on  record,  the High  Court  should  not disturb the  finding  of  acquittal recorded by the trial court.  It would follow as a corollary from  that,  that if the view taken by the  trial  court  in acquitting the accused was not unreasonable the occasion for the reversal of that view would not arise. [678.  H 679C]:

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 16. of 1971. Appeal from the Judgment and Order dated 15th December, 1970 of the Kerala High Court in Crl.  A.No. 256 of 1970. K. R. Kunhirama and A. S. Nambiar, for the appellants. K. T. Harindernath and A. G. Puddssery, for the respondent. The Judgment of the Court was delivered by KHANNA, J. Sethu Madhavan Nair and 12 others were tried in, the court of the learned Sessions Judge Palghat for offences under  sections  148  and 302 or in  the  alternative  under section 302 read with 674 section 149 Indian penal Code and were acquitted.  On appeal by  .the State, the Kerala High Court reversed the  judgment of  acquittal and convicted the accused tinder  section  302 read  with section 149 Indian Penal Code and sentenced  each of  them to undergo imprisonment for life.  The  13  accused thereafter  filed the present appeal against ..the  judgment of the High Court. Ananthakrishnan deceased was a landowner of village  Thanni- sseri.   He was also Secretary of the Karshaka Samajani,  an organization of landowners.  The accused are workers of  the local  Marxist  ,Communist Party.  About one or  two  months before the present occurrence, an agitation had been started by  Karshaka Thozhilali Union, which was affiliated  to  the Marxist  Communist  Party,  for  the  enhancement  of  wages payable  to  agricultural labourers.  As a  result  of  that agitation,  the  landowners found difficulty  in  conducting their  agricultural operations.  The relations  between  the landowners  and  the Marxist  Communist  Party  consequently became  strained.  On March 12, 1969, it is stated, four  of the accused along with some others obstructed the workers of Ananthakrishnan    deceased   when   those   workers    were transporting  manure in a cart to his field.   The  deceased filed  a complaint under sections 148 and 341  Indian  Penal ,Code before the District Magistrate against those  persons. As  there was strike and picketing by the  Marxist  workers, Ananthakrishnan  deceased  and his brother  Velunni  (PW  1) addressed an application to the District Collector on  April 11, 1969 requesting that police protection might be given to willing  workers  and  others whom they  might  employ  from neighbouring  areas for agricultural work.  A writ  petition was  also  filed  in  the High Court  by  the  deceased  for directing  the authorities to provide protection to him  and his workmen in carrying on agricultural work. on.  April 18, 1969  Sub  Inspector  Damodara Menon (PW  12)  went  to  the village  of  the  parties to settle a  dispute  between  the deceased  and  the members of the Marxist  Communist  Party.

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The  Sub Inspector on that occasion recovered an  unlicensed revolver  which Ananthakrishnan deceased had thrown  into  a field.    A  case  was  thereupon  registered  against   the deceased. Ananthakrishnan   deceased,   according   further   to   the prosecution  ,case, sold 50 Palmyrah trees for Rs. 3,000  to PW  Krishnan of village Parli.  Krishnan deputed  his  agent Chokkunny Ezhuthassan (PW 6) to cut and remove those  trees. On.   April  18, 1969 Chokkunny Ezhuthassan  accompanied  by some wood cutters went to cut and remove the aforesaid trees but  they  were prevented from doing so by the  Harijans  as according to those Harijans a bund had been declared on that day in connection with the agitation started by the Karshaka Thozhilali Union.  Chokkunny was also told to come after two days for cutting the trees. On  the morning of April 20, 1969, Ananthakrishnan  deceased accompanied  by  his elder brother Velunni PW  went  to  the house of Joy (PW 5) as a function had been arranged at  that house  in  connection  with the sending of  Joy’s  wife  for delivery.   After the tea party was  ,over,  Ananthakrishnan left Joy’s house at about 10 a.m. saying that 675 he  wanted to see whether the person to whom Palmyrah  trees had  been  sold  had  come  to  cut  those  trees.   Velunni continued  to  stay  in  Joy’s  house.   Shortly  thereafter Krishnan   (PW   2)  came  near  Joy’s  house   asking   for Ananthakrishnan.    Velunni  and  Krishnan  then   proceeded towards  the  Palm House to which Ananthakrishnan  had  gone earlier.   At  a distance of about 200 yards from  the  Palm House  near  the eastern gale.  Velunni and Krishnan  saw  a large  number  of persons holding sticks.  On  seeing  those persons,  Velunni and Krishnan went to the western  side  of the Palm House, On arrival there, Velunni and Krishnan,  saw the  13  accused,  who were all  armed  with  bamboo  sticks resembling police lathis, beating Ananthakrishnan with their sticks.  Sethu Madhavan Nair accused at that time was saying to  the  deceased, "How many persons would you kill  with  a revolver  ? Would you not withdraw the case when. asked  ?". Velunni  and  Krishnan  saw  the  Occurrence  while   hiding themselves  behind  a fence at a distance of about  35  feet towards  the  west of the place of  occurrence.   After  the beating  had  continued  for six  or  seven  minutes,  Sethu Madhavan  Nair  accused  cried  a  halt  saying  that  Anan- thakrishnan  was  dead.  The accused then left  that  place. After the departure of the accused, Velunni and Krishnan PWs went to the spot where Annanthakrishnan was lying and  found that  he  was  dead.   Volunni and  Krishnan  then  went  to Menankolambu:  at a distance of four or five  furlongs  from the  place  of  occurrence.  Krishnan  stayed  there,  while Velunni went from that place to Koduvayur.  Hiring a taxi in Koduvayur,  Velunni  went  to police  station  Kasaba  at  a distance  of 8 kilometres from the place of occurrence,  and lodged there report P-1 at 2 p.m. After  the registration of the case.   Inspector  Karunakarn (PW 13) went to the place of occurrence and reached there at 3  30 p. m. The Inspector prepared the inquest report.   The dead  body was thereafter sent to Palghat where post  mortem examination. was performed by Dr. V. S. Chandran at 9-20  a. m. on April 21,.1969. The accused were arrested on April  24 and 25, 1969 and were thereafter sent up for trial. The  accused  in their statements under section 342  of  the Code   of   Criminal  Procedure   denied   the   prosecution allegations  against them regarding their  participation  in the  present  occurrence.   No  evidence  was  produced   in defence.

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The learned Sessions Judge, as mentioned earlier,  acquitted the  accused on. the ground that there was no  reliable  and covincing  evidence against them.  On appeal the High  Court disagreed   with  the-  Sessions  Judge  and  came  to   the conclusion  that the 13 accused were guilty of  the  offence under section 302 read with section 149 Indian Penal Code. In  appeal before us Mr. K R. Kunhirama Menon on  behalf  of the  appellants  has assailed the evidence  adduced  by  the prosecution  and  H  has  contended that it  is  of  a  most unsatisfactory character for founding thereon the conviction of the accused. it has been further urged by Mr. Menon  that the High Court was in error in. reversing the finding 676 of  acquittal  recorded by the Sessions Judge.   As  against that,.   Mr.  K.  T. Harindra Nath  has  canvassed  for  the correctness of the judgment of the High Court. It  cannot be disputed that a large number of injuries  were caused to Ananthakrishnan  decreased on April 20, 1969  near the Palni House as a result of which he died.  Dr.  Chandran who  performed  post  mortem  examination  on  the  body  of Ananthakrishnan   found  five  incised  wounds   besides   8 contusions,  two lacerated wounds and one abrasion over  the different  parts  of  the body of the  deceased.   The  five incised wounds were as under :               "1.  An  incised wound 3 cm x 5 cm  x  .25  cm               oblique over the right parietal region.               2. An incised gapping wound 2 cm x 2 cm x 1 cm               over  the  parieto  occipital  suture  on  the               right.               3.  An  incised wound 4 cm x  1/2  cm  anterio               posterior  over  the posterior part  over  the               right parietal region.               4. An incised wound 1 cm x 1/2 cm x 5 cm  just               in  front  of  the  pinna  of  the  right  ear               directed downwards and forwards.               5. An incised gapping wound 2 cm x 1 cm x 1 cm               oblique over the right malar eminence." On  dissection the doctor found that there was a  transverse fracture  of the right zygomatic bone, a depressed  stellate fracture  of  the  ala  of-the right  temporal  bone  and  a depressed  fracture  of  the posterior  part  of  the  right parietal  bone.   There  was also a fracture  of  the  right humerus.   The  injuries,  according  to  the  doctor,  were sufficient to cause death in the ordinary course of nature. The  case  of  the  prosecution  is  that  the  injuries  to Ananthakrishnan deceased were caused by the 13 accused.   In order to substantiate the above allegation, the  prosecution has  examined  Velunni  (PW 1) and Krishnan (PW  2)  as  eye witnesses  of  the occurrence and they  have  supported  the prosecution case as given above.  It is upon the evidence of these  two eye witnesses that the High Court has  based  the conviction of the accused.  After having been taken  through the evidence of these two witnesses, we find the same to  be far  from convincing.  We are further of the view  that  the learned Sessions Judge gave cogent grounds for rejecting the testimony  of  these  witnesses.  The  High  Court,  in  the circumstances,  should not have reversed the  well  reasoned judgment of the trial court. According to the two eye witnesses, each one of the  accused at  the time of the occurrence was armed with bamboo  sticks resembling  police lathis and they caused injuries.  to  the deceased with those sticks.  Dr. Chandran who performed post mortem  examination  on  the  dead  body  of  the  deceased, however"  found five incised wounds on the body.  It  is  in the testimony of the doctor that it were these five  incised

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wounds  which proved fatal and resulted in the death of  the deceased. 677 Although  Dr. Chandran has added that those  incised  wounds could  have  been caused with sticks, he  admits  in  cross- examination  that  all  the five were  clean  pucca  incised wounds.   Dr. Chandran expressed his disagreement  with  the view that an injury caused on the bony part of the body with blunt  type  weapon could not cause a  clean  pucca  incised wound.  The learned Sessions Judge who was of the view  that the five incised wounds had been caused by sharpened  weapon rejected this part of the statement of the doctor and relied upon  the  following  observations on  page  225  of  Modi’s "Medical Jurisprudence and Toxicology, Seventeenth Edition:               "Occasionally,  on wounds produced by a  blunt               weapon  or by a fall the skin splits  and  may               look  like  incised wounds when  inflicted  on               tense  structures covering the bones, such  as               the   scalp,  eyebrow,  illiac  crest,   shin,               perineum  etc.,  or by a fall on the  knee  or               elbow when the limb is flexed.  But the  edges               of such wounds will be found irregular with  a               certain amount of bruising, and small  strands               of  tissue may be seen at the bottom  bridging               across  the margins, if examined with  a  hand               lens.  In the case of wounds of the scalp  the               hairbulbs  will be found crushed, if they  are               inflicted  with  a blunt weapon, but  will  be               found cut, if produced by a cutting weapon." In  the High of the above observation, we find no  infirmity in  the finding of the learned Sessions Judge that the  five clean pucca incised injuries which were found on the body of the deceased had been caused by sharpedged weapon and not by sticks.   Dr.  Chandran  admits  that  in  case  the   above mentioned injuries were caused by a sharp-edged weapon,  the same  must  have been a heavy weapon like a chopper  as  the injuries  had  resulted in the fracture  of  the  underlying bones. As  regards  the identity of the culprits,  Velunni  PW  has stated  that he identified the culprits by looking at  their faces  during  the  course of the  occurrence.   Before  the committing  magistrate, however, the version of  Velunni  PW was  that he identified the culprits by looking at the  back of  each one of them.  Velunni also added in  his  statement before the committing magistrate that he could only see  the back  of  each  one  of  the accused  at  the  time  of  the occurrence.   So  for  as Krishnan (P W2)  is  concerned  he deposed  that he had known only two of the accused for  five or six years before the present occurrence but did not  know the  remaining 11 accused.  Krishnan added that he had  seen those 11 accused once before the present occurrence when  he called  at the office of the Communist Party.  Krishnan  was then  confronted with his statement made before the  police. According  to  that statement, Krishan had  no  acquaintance with  the persons who caused injuries to the  deceased.   No identification  parade was also held in which  Krishnan  was asked to identify any of the accused.  The learned  Sessions Judge  in view of the above came to the conclusion that  the evidence  regarding  the identity of the  culprits  was  not satisfactory.   We  find nothing unreasonable in  the  above view. The  learned Sessions Judge also expressed the opinion  that the  assault on the deceased took place not at 1 1  a.m.  as stated by Velunni 11--M185 Sup.  CI/75

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678 and Krisnan PWs but before 9-30 or in any case before 10  a. m. Reliance in this context was placed upon the evidence  of Chokkuny (PW 6).  Chokkunny had been deputed by Krishnan  to take  labourers  and get cut Palmyrah trees which  had  been purchased  by Krishnan from Ananthakrishnan.  Chokkunny  has deposed that at about 10 a.m. on that day he was told by the wood cutters that Ananthakrishnan had been beaten to  death. Chokkunny was also confronted with his statement made before the police.  The learned Sessions Judge concluded from  that statement  that Chokkunny had learnt about the death of  the deceased from others at about 9.30 a.m. The High Court  took the view that the above mentioned time did not relate to the moment  when Chokkunny received information of the death  of the  deceased  but to the time when the  deceased  had  gone alone towards the place of occurrence.  The police statement of Chokkunny in this respect is not very clear.  Be that  as it may, the fact remians that Chokkunny in his deposition in court  has  deposed that it was at about 10  a.m.  that  the learnt  of  ,the  death of  Ananthakrishnan  deceased.   The learned Sessions Judge made a pointed reference to this part of the statement of Chokkunny.  The High Court in the course of  its judgment, however, did not deal with this aspect  of the matter.  The learned Sessions Judge also sought  support for  the  conclusion  that the occurrence  had  taken  place before  9-30 or 10 a.m. from the evidence of  Dr.  Chandran. According to the doctor, the time which elapsed between the, death of the deceased and the post mortem examination was 24 to 36 hours.  The post mortem examination was performed at 9 20  a.m. on April 21, 1969.  In coming to that opinion,  the doctor  referred  to the fact that he noticed  blisters  and peeling  all over the back off the trunk.  The  doctor  also noticed signs of decomposition.  In view of the testimony of Chokkunny  and Dr. Chandran PWs, we are of the opinion  that the  learned  Sessions  Judge  had  reasonable  ground   for arriving at the conclusion that the assault on the  deceased took  place not at 11 a.m but earlier than 10 a.m. and  that Velunni  and  Krishnan did not witness the  occurrence  when they  arrived  near  the Palm House at about  1  1  a.m.  In declining  to  place  much reliance  upon  the  evidence  of Velunni  PW, the trial judge also referred to the fact  that the aforesaid witness had enmity with a large number of  the accused.   Another  circumstance  which  also  affected  the veracity  of the statement of Velunny PW was that though  he disclosed  in  court  that only the 13  accused  had  caused injuries  to the deceased, the version given by him  in  the first  information  report was that the  injuries  had  been caused by others besides the 13 accused. in  an  appeal  under section 417 of the  Code  of  Criminal Procedure against an order of acquittal, the High Court  has full  power  to review at large the evidence  on  which  the order  of acquittal was founded and to reach the  conclusion that  upon  the evidence the order of  acquittal  should  be reversed.   No limitation should be placed upon  that  power unless  it  be found expressly stated in the  Code,  but  in exercising  the  power  conferred by  the  Code  and  before reaching its conclusion upon fact the High Court should give proper  weight and consideration to such matters as (1)  the view of the trial judge as to the credibility of 679 the  witness; (2) the presumption of innocence in favour  of the  accused,  a presumption certainly not weakened  by  the fact that he has been acquitted at his trial; (3) the  right of  the  accused to the benefit of any real  and  reasonable doubt; and (4) the slowness of an appellate court disturbing

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a  finding  of  fact  arrived at by  a  judge  who  had  the advantage  of seeing the witnesses.  The High  Court  should also take into account the reasons given by the court  below in  support of its order of acquittal and must  express  its reasons  in  the  judgment which lead it to  hold  that  the acquittal is not justified.  Further, if two conclusions can be based upon the evidence on record, the High Court  should not  disturb the finding of acquittal recorded by the  trial court.  It would follow as a corollary from that that if the view  taken by the trial court in acquitting the accused  is not unreasonable, the occasion for the reversal of that view would not arise. Keeping  in mind the principles enunciated above, we are  of the opinion that there was no sufficient ground for the High Court to reverse the judgment of the trial court whereby  it acquitted the 13 accused.  Learned Sessions Judge had  given convincing and cogent reasons in support of the  conclusions at which he arrived.  The view taken by him can by no  means be  described as unreasonable.  Even if the High Court  felt that  on the material on record, a different view  was  also possible  that  fact,  in  our  opinion,  did  not   justify interference  with  the  judgment  of  acquittal.   If   two conclusions  can be reached on the basis of the evidence  on record,  the High Court, as already mentioned above,  should not interfere with the finding of acquittal recorded by  the trial court. We  are, therefore, of the view that the learned  Judges  of the  High Court were in error in reversing the  judgment  of the  trial court whereby it had acquitted the  accused.   We accordingly accept the appeal, set aside the judgment of the High  Court and restore that of the trial court whereby  the accused had been acquitted.                                              Appeal allowed. P.B.R. 680