IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 CRL.A.No. 951 of 2007() ----------------------- SC.396/2001 of ADDL.SESSIONS COURT,-I, MAVELIKKARA .................... APPELLANT : ACCUSED: ---------------------- HARIDAS, S/O. PARAMESWARAN, MALAYIL PADEETTATHIL, KATTANAM MURI, KATTANAM VILLAGE. BY ADV. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN RESPONDENT: COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. *********************** Crl.Appeal No.951 of 2007-D ***************************** Dated this the 3rd day of December, 2011 JUDGMENT BASANT, J. Is the criminal trial just a complicated forensic game with accent only on compliance with complex rules? Is there no mission of discovery of truth for the stake holders in a criminal trial? Should not the indictee be obliged to assist the truth discovery process by revealing the true facts, at least to the court at the stage of trial? Does he have a right to remain arrogantly silent and non co-operative in the process of truth discovery before court? Should not the Indian jurisprudence look for a third desi (native) alternative for administration of criminal justice - other than the Anglo Saxon adversarial and the continental accuisitorial ones, which can cater better to the needs of our society and which will rhyme better with our native commonsense and sense of justice? Should not bold efforts and initiatives in this direction start at least now - after Law India has completed about six and a half decades of independent existence? These thoughts remain with us when we part with this case and we felt it apposite to give expression to the same before we start the dictation. Crl.Appeal No.951 of 2007 2 2. To the more mundane and immediate questions raised by Sri.S.Rajeev, the learned counsel for the appellant now: Did the court below err in accepting and acting upon the oral evidence of PW1? Is the accused entitled for the benefit of doubt for the reason that the prosecution has not placed the entire materials before Court? Is the accused entitled to the right of private defence? At any rate, is not the accused entitled to the mitigative protection of Exception 1 and/or Exception 4 of Section 300 I.P.C? 3. The appellant has been found guilty, convicted and sentenced for the offence punishable under Section 302 I.P.C. He faces the sentence of imprisonment for life and fine of Rs.25,000/-. In default of payment of fine, he has to undergo Rigorous Imprisonment for a period of 3 years. 4. The prosecution alleged that the appellant (1st accused) along with another (acquitted accused No.2) in furtherance of their common intention has caused the death of deceased Viswambharan, the half brother of the appellant. The appellant is alleged to have stabbed the deceased with M.O1 knife, which allegedly was handed over to him in the course of the incident by the 2nd accused. The alleged incident took place Crl.Appeal No.951 of 2007 3 at about 8 p.m on 18.01.2000 in the residential building occupied by the accused Haridas along with his mother Rohini, sister Savithri and father Parameswaran Nair. 5. Investigation commenced with registration of Ext.P9 F.I.R on the basis of Ext.P1 F.I statement lodged by PW1, the sister of the deceased. Investigation was completed and it was PW12, the Investigating Officer, who filed the final report/charge sheet before the learned Magistrate. The learned Magistrate, after observing all legal formalities, committed the case to the court of session. The learned Sessions Judge took cognizance of the offence alleged against both accused. The accused persons denied the charges that were framed against them by the learned Sessions Judge. Thereupon the prosecution examined PWs 1 to 14 and proved Exts.P1 to P30. M.Os 1 to 10 were also marked. 6. In the course of cross examination of prosecution witnesses and when examined under Section 313 Cr.P.C, the accused took up a hybrid defence of total denial as also of contumacious conduct on the part of the deceased. No defence witnesses were examined. Exts.D1 to D3 case diary contradictions were marked when PW1 and PW6 were examined. Crl.Appeal No.951 of 2007 4 7. The learned Sessions Judge on an anxious consideration of all the inputs came to the conclusion that the second accused is entitled for an acquittal. Accordingly the second accused was found not guilty and acquitted of the offence alleged against him under Section 302 r/w 34 I.P.C. The appellant/accused, the learned Sessions Judge found, had planted the fatal injuries on the deceased. Accordingly he was found guilty, convicted and sentenced under Section 302 I.P.C. 8. Before us the learned counsel for the appellant/accused and the learned Public Prosecutor have advanced their arguments. Shri Rajiv, the learned counsel for the appellant has trained all his guns at the evidence of PW1. The learned Sessions Judge, contends Shri Rajiv, had totally erred in placing implicit reliance on the oral evidence of PW1. She is unworthy of credence. She is not a wholly reliable witness. Her evidence ought to have been rejected outright. At any rate, the accused is entitled to the benefit of doubt generated by the unsatisfactory evidence tendered by PW1. The learned counsel further proceeds to contend that inasmuch as the genesis of the incident is not proved by the evidence of the sole eye witness PW1, the appellant is entitled to claim that at Crl.Appeal No.951 of 2007 5 any rate he is protected by the right of private defence. Assuming that the claim for right of private defence does not appeal to this Court, the appellant is at any rate entitled to contend that he can only be held guilty of exceeding the right of private defence entitling him to the protection of exception 2 to Section 300 I.P.C. Lastly and finally the learned counsel contends that in any view of the matter, the appellant is entitled for the protection of Exception 4 to Section 300 I.P.C. 9. The learned Public Prosecutor on the contrary contends that evidence of PW1 is inherently inspiring and the same does not warrant or justify an approach with suspicion and distrust. There is no specific plea raised by the accused that he is protected by the right of private defence. At any rate, there is absolutely nothing to indicate that the appellant has any such right of private defence. He cannot be held to have exceeded the right of private defence, in any view. The learned Prosecutor finally contends that the protection under Exception 4 cannot be claimed by the appellant in the facts and circumstances of this case. 10. We shall now proceed to consider the contentions raised seriatim. An appellate judgment is and must be read (and Crl.Appeal No.951 of 2007 6 is intended to be read) as a continuation of the judgment of the trial court. This helps to avoid unnecessary prolixity. Appellate courts can legitimately start with the presumption that any reader of the appellate judgment has already read the impugned judgment before he approaches the appellate judgment. It is not really necessary, for the appellate judge to narrate in detail the pleas, evidence, appreciation of evidence and the conclusions of the trial court. An appellate judgment can legitimately start in a business like manner with the opening statement that the impugned judgment is assailed on the following specific grounds. For the mere convenience of the reader (even the Court superior to the appellate court) it is not necessary for the appellate judge to recount and re-narrate the endeavour of the trial judge. We feel that in the interest of saving dictation time of the appellate judges, it would be a good idea to insist that copy of the original judgment should invariably be annexed to (issued along with) the appellate judgment. They together constitute an integral whole. Such a culture of writing an appellate judgment would be wholesome and would help the interest of time management better, we feel. Inadequacies of the trial judgment in the narration of pleas, discussions etc. can be adverted to while Crl.Appeal No.951 of 2007 7 discussing the grounds of challenge. In that view of the matter, we deem it unnecessary to re-narrate the oral and documentary evidence relied on by the rival contestants. We need only observe that the learned counsel have taken us in detail through the oral evidence of PWs 1 to 14 as also Exts.P1 to P30. We have further been taken in detail through the charge framed by the learned Sessions Judge as also the examination of the accused under Section 313 Cr.P.C. We shall refer to the oral and documentary evidence specifically wherever necessary in the course of the discussions. 11. Deceased Viswambharan is the son of Rajamma (PW9). PW1 Sreekumari is the sister of deceased Viswambharan and the daughter of Rajamma. Rajamma's husband was Parameswaran Nair. While Rajamma was living, he had accepted Rohini, the sister of Rajamma (PW9), as his second wife. In Rohini he had 3 children. The appellant/accused Haridas is the only son. He along with his mother Rohini was residing in a house. There, along with them Parameswaran Nair, the father of the appellant, deceased and Saraswathy - the sister of the appellant, were also residing. There was no much of love lost between the two sisters, the co-wives. Crl.Appeal No.951 of 2007 8 12. The marriage of Sugathamma, one daughter of Rajamma in Parameswaran Nair, was scheduled to take place on 30.01.2000. According to the prosecution, PW9 and the deceased had advanced an amount of Rs.10,000/- to the accused Haridas and his mother Rohini in connection with the marriage of Saraswathy, the daughter of Rohini. That was intended to be returned. It was not returned by Rohini and Haridas when PW1's marriage took place. They expected the accused and Rohini to return that amount to meet the expenses of the marriage of Sugathamma. 13. It is the case of the prosecution that Viswambharan on that fateful night at about 8 p.m chose to proceed to the house where Rohini and the appellant along with Parameswaran Nair and Saraswathy were residing. The purported purpose was to invite them for the marriage of Sugathamma and to claim return of the amount of Rs.10,000/- to meet the expensess of such marriage. Deceased went towards that house from the house of PW1. The deceased resides along with PW9 in another house farther away from the house of PW1. The deceased proceeded to the house of Rohini and some time thereafter PW1 heard a Crl.Appeal No.951 of 2007 9 commotion from that house. She rushed to that house and there she is alleged to have seen the appellant inflicting injuries on the deceased with M.O1. It is the case of the prosecution that the appellant had caught hold of the deceased and at that juncture the second accused Rajesh had handed over M.O1 knife to the appellant to facilitate infliction of injuries. PW1 claims to have witnessed the incident proper. 14. The prosecution wanted to examine PW2 another eye witness to the occurrence. She is also a neighbour residing close to the house of the appellant. PW2 turned hostile to the prosecution. She did not speak about the infliction of the injuries proper. According to her, when she came to know of the commotion (that too when someone later knocked at her doors), she came out and found the deceased with injuries lying on the lap of PW1 near the house of the appellant. 15. The only other non official witness of relevance to be mentioned is PW9, mother of the deceased. She also came to the scene of the occurrence after the deceased had suffered the injuries and she allegedly found the deceased with injuries with PW1 near the scene of occurrence. 16. It will be apposite straight away to mention that Crl.Appeal No.951 of 2007 10 Rohini, the mother of the appellant, had also allegedly suffered an injury in the course of the incident. That is the admitted version of the prosecution. We shall later advert to the dispute as to how Rohini had suffered the injury. Suffice it now to say that Rohini was treated for the injuries suffered by her. The prosecution initially did not choose to cite and examine, PWs 13 and 14. Later after the close of the prosecution evidence - nay, after even the examination of the accused under Section 313 Cr.P.C, an application was filed under Section 311 Cr.P.C and PWs 13 and 14 were examined and Exts.P27 to P30 were marked. Ext.P27 is the wound certificate issued by PW13 doctor, which reveals the nature of injury suffered by Rohini. PW14 a police official had conducted the initial investigation. He proved Exts.P28 F.I statement, Ext.P28(a) body note and Ext.P29 F.I.R. The final report filed in that crime was marked as Ext.P30 through PW12. The prosecution takes the stand that the injuries on Rohini were not suffered by her at the hands of deceased Viswambharan and the insignificant injuries must have been self inflicted. However, in the course of the evidence of PW1, it is indicated, that Rohini may have suffered the injury when the deceased pushed her in the course of the incident. Crl.Appeal No.951 of 2007 11 17. Be that as it may, the million dollar question to be decided in this case is whether the evidence of PW1 can be safely accepted and acted upon. Detailed arguments have been advanced by both sides on this crucial aspect. The incident takes place in the house of the appellant. PW1 had gone to the house on hearing the commotion. She is the sole witness who has been examined by the prosecution to unfold the precise sequence of events. 18. The learned counsel for the appellant has subjected the oral evidence of PW1 to close and thorough analysis. The learned counsel first of all submits that she is the sole witness available in the case. Ocular corroboration for her version is not available and therefore her evidence must be put to strict and rigorous appreciation. The counsel urges that she is interested and related to the deceased. She is inimical too to the appellant. There can be no serious dispute of these aspects. Her interest in favour of the deceased is evident. That she is related to the deceased is admitted. That there is strain in the relationship between the two wives and their lenial descendants is also practically not disputed. Needless to say, the learned counsel for the appellant is correct in his contention that PW1 can safely be Crl.Appeal No.951 of 2007 12 said to be interested, related and inimical against the appellant. 19. The learned counsel contends that it is not as though the prosecution could not have procured the evidence of other witnesses. Parameswaran Nair, the father of the appellant and the deceased was residing in that house and he was available at the scene. Rohini, the mother of the appellant who had suffered injury was also available in the house. Saraswathy, the sister of the appellant, was also present in the house. All these witnesses were available there, to reveal to a person interested in knowing the truth, the genesis of the incident and its progress. The learned counsel for the appellant further points out that going by the version of the prosecution, the 2nd accused was also there. In short, the argument of the learned counsel is that this is not a case where the prosecution is helpless and can procure the services of only PW1 to unfold before Court the manner in which the incident took place. All these witnesses were available. 20. The learned counsel for the appellant then contends that the second accused was falsely implicated and was arrayed as an accused, probably with the motive of denying to him his legitimate place in the array of witnesses. By arraying him as the second accused, falsely as it has now turned out to be, the Crl.Appeal No.951 of 2007 13 prosecution has virtually denied to the Court the advantage of the disinterested version from such person, ie. the 2nd accused. 21. The learned counsel points out that PW1, even going by the version of the prosecution, is not a wholly reliable witness now. Her version in so far as the involvement of the 2nd accused is concerned, has not been accepted by the court below. There are indications to suggest that there was strain in the relationship between PW1 and the 2nd accused and it is such strain in the relationship that had led to false implication of the 2nd accused. What can be cheese for the goose must be cheese for the gander also, contends the learned counsel. The oral evidence of PW1, which has not been accepted in so far as the contumacious role of the 2nd accused is concerned, deserves an approach with reservation and caution in so far as such evidence implicates the appellant/1st accused, contends the learned counsel. 22. The learned counsel then argues that even if the entire version of PW1 were accepted, it is very unlikely that she would be able to narrate before Court the genesis and sequence of the incident. She was admittedly not there when the incident commenced. She came to the scene of the crime long after the Crl.Appeal No.951 of 2007 14 deceased reached the house of the appellant and therefore the evidence of PW1 cannot throw any light on the events that transpired before she reached the scene of the occurrence. 23. The learned counsel then points out that the mission of the deceased when he undertook the trip to the house of the appellant could not have been honest, peaceful or innocuous. The theory that he went there to invite Rohini and the other members of the family for the marriage of his sister which was to take place on 30.01.2000 cannot be swallowed without a pinch of salt, points out the learned counsel. At 8 p.m on that night when the deceased undertook a trip to the house of the appellant, it is reasonable for a prudent mind to suspect that questionable motives were prompting the deceased to undertake such a trip, contends the learned counsel. In this context the oral evidence of interested PW1 deserves to be approached with caution, contends the learned counsel. 24. The learned counsel for the appellant then points out that PW1 is not a person who has been averse to the idea of conveniently modifying her version. The counsel highlights the variation/improvement in her statement before the police and before court as to what attracted her attention to the scene of Crl.Appeal No.951 of 2007 15 the crime. To the police, the version was that she heard cries. In court she stated that she heard only a commotion. The learned counsel argues that the cry could have come out only after the infliction of the injury proper. To enable her to reach the scene even before the infliction of the injuries, she is now deviating from her previous version to assert that not the cries, but the commotion only attracted her attention to the scene, contends counsel. 25. The learned counsel for the appellant then points out that PW1 is not a witness on whom implicit trust can be placed. The learned counsel accuses PW1 of having attempted to black out the version of injury on Rohini when she lodged Ext.P1 F.I statement. In Ext.P1, significantly there is no reference to the injury on Rohini at all. However, at the stage of evidence, in response to a specific question put by the Prosecutor, PW1 had admitted that Rohini had suffered some injuries in the course of the incident. If she were capable of suppressing that dimension of the incident altogether in Ext.P1, the court must be very cautious while appreciating her testimony as her capability to sieve information and reveal only what is convenient to her is Crl.Appeal No.951 of 2007 16 reflected from the blacking out of the injury on Rohini in Ext.P1, argues the learned counsel. 26. The learned counsel then points out the incongruity in the version regarding the weapon ( M.O1) used for the crime. In this context he relies on the contents of Ext.P1. The learned counsel points out that in Ext.P1, there was a specific, definite and firm assertion that the weapon with which the offence was committed belonged to the father of the appellant and the deceased, ie. Parameswaran Nair, who was occupying that house along with the appellant and the others. But in the course of evidence, she altered her version to say that the weapon that was used was a different one and that it did not belong to her father. The learned counsel for the appellant laboriously explains this deviation. According to him, the father of the appellant Parameswaran nair and deceased Viswambharan were both engaged in identical work - plucking Chamban (tender arecanuts). Both of them had reasons to use an identical weapon/knife in connection with their work. The learned counsel points out that probably the weapon with which the deceased suffered injuries must have been the weapon of the deceased himself. To explain that, as the father is also engaged Crl.Appeal No.951 of 2007 17 in identical work, the explanation was pressed into service in Ext.P1 that the weapon belonged to the father. Realising the impossibility of continuing with the same case, the same is now given up and it is now stated that the weapon did not belong to the father of the appellant. The learned counsel contends that the version regarding the knife is inherently improbable. The initial version of PW1 is that the 2nd accused had handed over the weapon to the appellant. That weapon was kept in the waist of the 2nd accused. The possibility of the weapon of the father of the appellant coming into the hands of the 2nd accused to enable him to hand it over to the appellant at the scene of occurrence is non existent, contends the learned counsel. This version of PW1, the sole witness, about the use of M.O1 weapon for the offence is also, in these circumstances, extremely improbable, contends the learned counsel. 27. Extending the arguments further from that premise, the learned counsel for the appellant argues that the alleged recovery of M.O1 on the basis of the information furnished by the appellant in the course of his confession statement under Section 27 of the Evidence Act cannot, in these circumstances, be used to support or corroborate the version of PW1. Crl.Appeal No.951 of 2007 18 28. The learned counsel further points out that there was no blood stains on the clothes of PW1. This is inconsistent with the version of PW1 that the deceased with such bleeding injuries did lie on her lap before she went to the police station to lodge Ext.P1 complaint. The non recovery of blood stained clothes of PW1 is pointed out to be a circumstance to doubt or suspect the version of PW1. 29. The learned counsel then points out that the evidence of PW1 does not explain all the injuries on the deceased. The learned counsel has taken us in detail through the injuries on the deceased described in Ext.P3 postmortem certificate. There are as many as 11 injuries which are not incised injuries, but only abrasions. The evidence of PW1 is incapable of explaining these non incised injuries described as injuries 6, 8, 9, 10, 11, 12, 14, 15, 18, 22 and 23 in Ext.P3. The evidence of PW1 hence deserves a cautious approach inasmuch as her evidence does not explain all the injuries on the deceased, contends counsel. 30. The learned counsel for the appellant then points out that there was gravel found on the veranda (thinna) of the house of the appellant. This must suggest that there was a push