IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 CRL.A.No. 71 of 2001() ---------------------- SC.51/1999 of ADDL.SESSIONS COURT, KOZHIKODE .................... APPELLANT(S): -------------- 1. SUDHEESH, S/O. PARON , AGED 24 YEARS, THALAKULATHUR. 2. PAVITHRAN, AGED 30 YEARS, -DO- 3. GIREESHAN, AGED 38 YEARS, -DO- BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): --------------- 1. THE SUB INSPECTOR OF POLICE, ATHOLY. 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI P.A. SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2008, THE COURT ON 13.12.2008, DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A No.71 of 2001 ---------------------------------------------- Dated, 3rd December, 2008 JUDGMENT This is an appeal preferred by accused Nos. 1, 2 and 4 challenging the judgment dated 15.1.2001 passed by the court of Additional Sessions Judge, Kozhikode Division in S.C.No. 51/99, by which they were convicted and sentenced for the offences under section 304 Part II and Sec.307 read with Sec.34 of the Indian Penal Code. 2. The case of the prosecution is that on 27.5.97 at about 12 noon when PW1 Chandran and deceased Janardhanan were sitting at a parapet near the house of one Padmanabhan, the accused 4 in numbers with their common intention to commit murder of Janardhanan and knowing that the injury is likely to cause death, the Ist accused had stabbed Janardhanan on the back of his chest and the 2nd accused had caused grievous injury on the right thigh of the deceased Janardhanan with knife and the 2nd accused also caused injury to PW1 Chandran with knife by stabbing on his left ribs and beating with his hands and thereafter the deceased Janardhanan died on account of the injuries sustained in the incident. The accused persons have done this due to their CRL.A 71/2001 -:2:- previous enmity, connected with the incident related to the act of one Rajeesh, nephew of the accused Nos. 1, 2 and 4 peeping the wife of PW5 Bindu when she was attending the nature's call, and thereby all the accused have committed the offcence punishable under sections 302, 324 and 323 read with S.34 of IPC. On the basis of the above allegation, crime No.90/97 was registered in the Atholi police station for the said offences. After completing the investigation, a charge sheet was filed before the Court of Judicial First Class Magistrate, Quilandy, and as per order dated 10.2.99 in C.P. 3/98, the learned Magistrate committed the case to the Sessions Court from where the same was made over to the trial court. 3. In pursuance of the process issued and on appearance of the accused, after hearing them as well as the Prosecutor, a charge was framed originally for the offences punishable under sections 302, 324, 323 read with Sec.34 of IPC and the same were read over and explained to the accused to which they pleaded not guilty which resulted in the further trial during which PWs 1 to 17 were examined on the side of the prosecution and Exts.P1 to P18 were marked. Mos 1 to 11 were identified and marked as CRL.A 71/2001 -:3:- material objects. After closing the prosecution evidence, CMP 3464/2000 was filed by the Prosecutor for altering the charge under Sec.324 to 307 IPC which was allowed by the trial court as per its order dated 5.12.2000 and thus the charge was altered from 324 to 307 IPC read with Sec.34 of IPC which were also read over and explained to the accused and they pleaded not guilty. As there was no demand for further examination of the prosecution witnesses, the prosecution evidence was closed. 4. The incriminating evidence and circumstances emerged out of the prosecution evidence were put to the accused under section 313 Cr.P.C. and they denied the same. Besides the above, the 2nd accused filed a statement stating that they were not having any intention to kill the deceased Janardhanan or attack PW1 on account of the alleged previous enmity. In the said statement, the 2nd accused specifically stated that on the date of incident, the 2nd accused along with accused Nos.1 and 4 went to the place of occurrence to attend mediation talk proposed to be held at the house of the 3rd accused and at that time, knowing that the accused persons are likely to come there and to take wreak vengeance against them, on account of the enmity out of CRL.A 71/2001 -:4:- the incident the 2nd accused beat PW5 from a marriage house on the previous date of the incident, PW1 along with deceased Janardhanan were waiting at the place of occurrence and when the accused reached there, PW1 removed his shirt and showed his muscles and started beating the accused and at that time, deceased Janardhanan took a knife and tried to cause injury on himself and his brothers, the other accused. According to the 2nd accused, at that time, there was some scuffles between himself and deceased Janardhanan and in that process, 2nd accused sustained injuries on his shoulders. According to the 2nd accused, he somehow removed the knife from Janardhanan and wielded the same against PW1 and the deceased Janardhanan in exercise of his private defence to save his life and also of his brothers and in that process, deceased Janardhanan and PW1 had sustained some injuries. Thus, according to the 2nd accused, they have no intention to kill or cause injuries on Janardhanan or PW1. Accused 1 and 4 also adopted the same stand of 2nd accused and, 4th accused has further stated that he was not at all present at the place of occurrence on that day. During the time of defence evidence, DW1 was examined and Ext.D8 was marked from their CRL.A 71/2001 -:5:- side. 5. On the basis of the rival pleadings and contentions and the materials, the trial court formulated 5 issues for its consideration. However, the trial court has not framed any issue based upon the contention and defence taken by the accused to the effect that they had exercised their private defence. After considering the points raised, the trial court found that the prosecution has failed to prove that the 3rd accused had committed any offence punishable under section 302 or under section 307 read with Sec.34 IPC and he was accordingly acquitted giving him the benefit of doubt. With respect to the other accused, the trial court found that the prosecution has proved beyond reasonable doubt that accused Nos.1,2 and 4 have committed the offence of culpable homicide of deceased Janardhanan which is not amounting to murder, punishable under section 304 Part II read with S.34 IPC and also committed the offence of attempt to commit murder of PW1 punishable under section 307 read with S.34 of IPC. On the conviction of accused 1, 2 and 4 and after hearing them on sentence, they were sentenced to undergo rigorous imprisonment for 5 years each and also to pay a fine of CRL.A 71/2001 -:6:- Rs.20,000/- each and in default to undergo rigorous imprisonment for 6 months each under section 304 Part II read with S.34 of IPC and also sentenced to undergo rigorous imprisonment for 4 years each and also to pay a fine of Rs.10,000/-, and in default, to undergo rigorous imprisonment for 6 months more under section 307 read with S.34 of IPC. The sentence are ordered to run concurrently. Set off under section 428 Cr.P.C. was allowed. It is the above conviction and sentence are challenged in this appeal by accused Nos.1,2 and 4 in the above case. 6. I have heard the learned Counsel Sri T.G.Rajendran appearing for the appellants/accused and the learned Public Prosecutor Sri P.A.Salim and also perused the evidence and materials on record and also the judgment of the trial court. 7. PW1 is the injured in this case. The prosecution case, mainly, reveals through the oral testimony of PW1. According to PW1, at about 12 noon of 25.7.97, he along with deceased Janardhanan were sitting on the parapet which was situating on the side of the house of PW4 and at that time the accused came there and asked PW1 as to whether they have came there to wreck vengeance against them and accused No.4 had taken CRL.A 71/2001 -:7:- M.O2 knife from his pant's pocket and stabbed on the left back side of Janardhanan. According to PW1 when he tried to protect Janardhanan, 2nd accused took M.O1 knife and stabbed him on his chest and 2nd accused also stabbed Janardhanan with M.O2 knife on his right thigh. It is also the case of PW1 that when he started running due to fear, the accused persons chased him and accused 3 and 4 beaten him with hands and due to that he fell down near the Vayanasala and thereafter he was taken to hospital by PW2 and Rajan and others in an autorickshaw firstly to Atholi and from there to Medical College Hospital in a jeep. According to him, on the way to Atholi, he told the said Rajan that Janardhanan also sustained injury and fell down there. According to PW1, PW14 had recorded his FIS which marked as Ext.P1 on the basis of which PW14 registered Ext.P16 FIR in crime No.90/97 for the offences under sections. 302, 324, 323 read with Sec.34 IPC. In his deposition PW1 has also stated the reason for the incident and according to him, a week prior to the incident Rajeesh - nephew of accused Nos.1,2 and 4, had peeped through the latrine when wife of PW5 (PW5 is the brother of PW1) was inside and this was questioned by PW5 with the father CRL.A 71/2001 -:8:- and mother of said Rajeeh. According to PW1, the above incident of questioning the parents of said Rajeesh provoked the accused. PW1 would further say that the accused were under the impression that PW1 and deceased Janardhanan had come at the place of occurrence to wreak vengeance against the accused. 8. According to Prosecution, PW17 is the officer who undertook the investigation and he conducted the inquest of the deceased and prepared Ext.P5 inquest report. During inquest and as recorded in Ext.P5 inquest report, the clothes of the deceased Janardhanan namely, MO.3 shirt, M.O4 Mundu, MO5 Jetty were seized. As per the request of PW17, PW11 conducted the autopsy on the body of deceased Janardhanan and he issued Ext.P9 postmortem certificate. PW1 was treated by PW.9 and Ext.P7 is the wound certificate and case sheet of PW1 marked as Ext.P19 and both these documents marked through PW9. Ext.P4 is the scene mahazar prepared by PW17 in the presence of PW6 and other witnesses and he had seized MO6 series black hawai chapels from the scene of occurrence and MO7 single hawai chapel (left leg) and MO.8 shirt, M.O-9 blood stained soil and M.O-10 piece of root of the tree scratched from the tree CRL.A 71/2001 -:9:- containing blood stain also as per Ext.P4 scene mahazar. According to the prosecution, PW17 arrested the 1st accused near the Beach Hospital on 27.7.97 and accused 2 to 4 on the same day. It is also the prosecution case that on the arrest of 4th accused, he made a confession statement on the basis of which M.O-1 and M.O-2 knives were recovered from the house of 4th accused in the presence of PW10 and another witness as per Ext.P8 seizure mahazar. M.O-11 is the shirt of Ist accused seized by PW 17 as per Ext.P6 seizure mahazar in the presence of PW8 and another witness. The seized articles were produced before the committal court with property list and also sent Ext.P12 forwarding note along with Ext.P13 requisition to send the articles for chemical analysis and the same were received by PW13, the L.D.Clerk attached to Judicial Magistrate of First Class, Quilandy. Thus PW13 sent the articles for chemical analysis along with original of Ext.P14 letter of the then Magistrate and obtained Ext.P15 chemical analysis report. PW.12 is the Village Assistant attached to Atholi village office. Ext.P10 is the sketch plan of the place of occurrence. The further investigation was conducted by PW 16 and he laid the charge. CRL.A 71/2001 -:10:- 9. The learned counsel for the appellants submitted that though in the court charge, Ist accused is shown as the person who stabbed the deceased, the finding is to the effect that the same was done by the 4th accused. According to the learned counsel, the entire prosecution case started with the registration of Ext. P16 FIR which registered on the basis of Ext.P1 FIS given by PW1. In Ext.P1, the specific case of PW1 is that it was A1 who stabbed the deceased. But when PW1 was examined in the court, he had made substantial improvement and deposed in contrary to Ext.P1 FIS that it was A4 who stabbed the deceased. The FIS was given by PW1 under the pretext that he had witnessed the incident but he had miserably failed to mention the injury sustained by A2. In the FIS, PW1 stated that A3 and A4 chased and beat him while he was running. But when he deposed in the court as PW1, he omitted the name of the 4th accused. Therefore, according to the learned counsel for the appellant, the entire case of the prosecution is under the shadow of doubt. The learned counsel pointed out that it is a case where the accused had admitted their presence connected with the incident and they have taken a plea of self defence. Under the above particular CRL.A 71/2001 -:11:- facts and circumstances involved in this case, it is incumbent on the trial court to find out who is the aggressor. According to the learned counsel , the trial court has miserably failed to come into a definite conclusion on that point. It is also pointed out by the learned counsel that in a case where self defence is taken, it is the unshifted burden of the prosecution to explain the injury on the person of the accused. In the present case, as evidenced by Ext.D8, 2nd accused sustained injury and therefore, the prosecution has to prove and explain as to how he sustained injury. The counsel invited my attention to Ext.P1 FIS launched by PW1 and submitted that there is no mention in the FIS about the injury sustained by the 2nd accused. It is also pointed out by the counsel that when PW-17 was examined, he was cross examined with respect to the injury sustained by 2nd accused. It is pointed out by the learned counsel that PW-17, the investigating officer has admitted that he knew that the 2nd accused sustained injury in the same incident and was admitted in the hospital from where he had obtained the wound certificate of 2nd accused and PW.17 had further admitted that he had questioned and recorded the statement of the doctor who CRL.A 71/2001 -:12:- treated the 2nd accused and issued Ext.D8 wound certificate. But to the surprise of the defence, that statement of the doctor was not produced, no investigation was conducted as to how the 2nd accused sustained injury and no explanation was offered regarding the injury on the 2nd accused. Thus the prosecution has suppressed the material facts from the scrutiny of the trial court The learned counsel invited my attention to the decision of the Supreme Court in Lakshmi Singh V. State of Bihar (AIR 1976 SC 2263), in which the supreme Court has laid down three inferences which can be drawn in case of non explanation of injuries on the accused. Another decision relied on on by the learned counsel is that of this Court in Pylan v. State of Kerala (1992 (2) KLT 661). The following decisions were also cited by the learned counsel for the appellant viz., Jalaram v. State of Rajasthan (JT 2005 (10)SC 168); Balwan Singh etc. v. State of Haryana (JT 2005 (5) SC 351); Chacko Mathai v. State of Kerala ( 1963 KLT 450) and George Dominic Varkey v. State of Kerala (1971 KLT 420). 10. Supporting the finding and conviction of the trial court, the learned Public Prosecutor Sri P.A.Salim submitted that the CRL.A 71/2001 -:13:- prosecution has established the case against the accused beyond reasonable doubt by adducing cogent and convincing evidence. It is pointed out that through the evidence of PW1 - an injured witness, the entire incident that taken place under which the deceased and PW1 sustained injuries are established. The learned Pubic Prosecutor submitted that in every case, the prosecution is not bound to explain the injuries of the accused. It is the case of the Public Prosecutor that 2nd accused sustained only minor injury and the same need not be explained by the prosecution and the non-explanation will not adversely affect the prosecution. The Public Prosecutor has cited the following decisions, viz., State of M.P.v. Sardar (2001 6 SCC 433); Ambika v. State (Delhi Admn.) AIR 2000 SC 718 and State of U.P v. Laeeq (1999 (5) SCC 588). The learned Public Prosecutor pointed out going by the evidence on record, it can be seen that neither the deceased nor PW1 were armed with weapon and therefore no explanation is required as to how the 2nd accused sustained injury. Hence the learned Public Prosecutor submitted that the conviction and sentence passed by the court below is based upon materials and evidence and no interference of this CRL.A 71/2001 -:14:- court is warranted in exercise of the appellate jurisdiction. 11. Going by the facts and circumstances involved in this case, the prosecution case is that a prior incident was occurred in which the allegation is that one Rajeesh, nephew of the accused peeped on Bindu - wife of PW5 , when she had gone to latrine and the same was questioned by PW5 with the parents of said Rajeesh and at that time PW5 was beaten by the said Rajeesh and pursuant to that there was a mediation at the instance of the 3rd accused and in the meanwhile, PW5 was beaten by 2nd accused in a marriage house on the previous day of the incident. On the date of incident, according to the prosecution case, the deceased and PW1 were sitting on the parapet, granite wall constructed on the lane of the side of the house of PW4 and at that time, the accused came there from the house of the sister of the accused and on seeing the deceased and PW1, the accused asked PW1 as to whether they came there to wreak vengeance against the accused and then 4th accused took M.O.2 knife from his pant's pocket and stabbed on the left back side of Janardhanan. Then the 2nd accused took M.O1 and stabbed on PW1 when he tried to protect the deceased CRL.A 71/2001 -:15:- Janardhanan from the attack of 4th accused. It is the further case that 2nd accused had also stabbed Janardhanan with M.O.2 knife on his right thigh and when PW1 started running due to fear, 3rd and 4th accused had beaten him with hands. According to the prosecution, in the said incident, PW1 sustained injury and deceased Janardhanan also received fatal injury and as result of which he died. In this juncture, it is relevant to examine the case of the defence also. The defence case is very specific and they put the same in black and white by filing a statement under section 313 Cr.P.C. According to the said statement, they admitted their presence at the place of occurrence in the incident. In the statement filed by the 2nd accused, other accused also had chosen to adopt the same contention, except 4th accused who stated that he was not at all there at the place of occurrence, it is stated that they were not having any intention to kill the deceased Janardhanan or attack PW1 on account of their previous enmity. According to them, on the date of the incident, 2nd accused along with accused 1 and 4 went to the place of occurrence to attend mediation talk proposed to be held at the house of 3rd accused and at that time, knowing CRL.A 71/2001 -:16:- that the accused are likely to come there and to wreak vengeance against them on account of the enmity of 2nd accused beating PW5 from the marriage house on the previous day of the incident, PW1 along with deceased Janardhan were waiting at the place of occurrence and when they reached there, PW1 removed his shirt and showed his muscles and started beating them with his hands. It is the specific case of the accused that at that time deceased Janardhanan took knife and tried to inflict injury on the 2nd accused and his brothers and at that time there was some scuffle between 2nd accused and deceased Janardhanan and in that process, 2nd accused sustained injury on his shoulder. According to him, he somehow removed the knife from Janardhanan and wielded the same against PW1 and deceased Janardhanan in exercise of their private defence to save the life of himself/2nd accused and also his brothers and in that process, deceased Janardhanan and PW1 sustained injuries. 12. From the above nature of the prosecution case and defence, it can be seen that both the parties are giving a different version regarding the starting of the incident and also the subsequent developments. Under the above circumstances, CRL.A 71/2001 -:17:- according to me, it is a heavy task of the trial court to find out the origin and genesis of the incident. It is relevant to note that the right of private defence or self defence can be taken by the accused either on the basis of the materials and evidence from the prosecution side or also by adducing as defence evidence and the same need not be in writing and need not specifically pleaded. Bu in the present case, such pleading was raised by filing a statement and also produced documents and oral evidence in support of such plea and during the cross examination of the prosecution witnesses questions were asked in support of plea of self defence. It appears to me that the trial court failed to consider such plea in its seriousness and importance and that is why the trial court miserably failed at least to frame an issue with respect to the plea of self defence raised by the accused. 13. Now I may examine the prosecution evidence and how far the prosecution succeeded in establishing its case, under the above situation, beyond doubt. Going by the judgment of the trial court and on a perusal of the entire evidence and materials on record, it can be seen that the prosecution has cited CRL.A 71/2001 -:18:- PW1 as its star witness for the very purpose of registration of the crime and also to establish the case against the accused. On the basis of Ext.P1 FIS given by PW1 to PW13 who recorded the same and consequently, crime No.90/97 was registered for the offences mentioned earlier in the Atholi police station. It is on the basis of the above FIR, the investigation was undertaken and after starting the evidence , prosecution filed a petition to alter section 324 to 307 IPC. It is on the basis of the above materials, the trial court framed the charge against the accused where also the main charge was against Ist accused that he inflicted injury on the deceased Janardhanan. 14. Now I may examine the oral deposition of PW1. According to PW1, when himself and deceased Janardhanan were sitting on the parapet mentioned above, the accused namely Pavithran, Pradeepan and Gireeshan came from the house of their sister and 2nd accused asked them whether they had come there to wreak vengeance for the beating of PW5 - the brother of PW1. At that time, he saw 4th accused stabbing Janardhanan when he got up on hearing the question of 2nd accused. According to PW1, when he tried to