(1.) 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 PW-1 and hurting him with a stick and for causing murder of deceased Kesava Pillai, father of PW-1 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.
(2.) The prosecution case in the nutshell is that the relationship between the accused and the deceased Kesava Pillai was stained 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 PW-1 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, PW-1 could not recognise them and enquired about their identity, whereupon the accused-appellant used some abusive language and PW-1 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 PW-1 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 PW-1 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 PW-1 rushed to the scene. At that stage when father of PW-1 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 PW-1 was recorded at 1.15 a.m., which was treated as FIR, 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, PW-3 is the daughter of the deceased whereas PW-2 is a neighbour. PW-8 is the doctor, who had examined the accused No. 1 and issued the wound certificate. PW-9 is the doctor who conducted the autopsy on the deed body of the deceased Kesava Pillai and exhibit P-15 is the post-mortem certificate. PW-14 is the doctor who attended the deceased Kesava Pillai as well as PW-1 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, PW-1 was waiting on the road. When he found that the appellant and his wife are coming, PW-1 abused them but the appellant came away and while he reached near the house of PW-1, 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 PW-1 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 PW-1 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 PW-1 and came to hold that the story of alleged cause of injury on the occipital region of PW-1 as spoken to by the eye witnesses stand totally descredited and disproved by the evidence of PW-14 and the injury certificate Exhibit P-11. The learned Sessions Judge accordingly recorded a finding that the first part of the occurrence regarding the alleged beating on the head of PW-1 by the appellant with the stick as spoken by the witnesses stands discredited by the evidence of PW-14. 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 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 acquired, 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 PW-1 and as such he is liable for being convicted under Section 302 as well as under Section 324, IPC. For such conviction he was sentenced to imprisonment for life.
(3.) 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 focused 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.
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