IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 CRL.A.No. 962 of 2007(A) ------------------------ SC.509/2006 of III ADDL.SESSIONS COURT, KOLLAM CP.39/2006 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... APPELLANT : APPELLANT ----------------------- KUTTAN, S/O.NARAYANAN, C.NO.1331, CENTRAL PRISON, TRIVANDRUM. BY ADV. A.R.USHA (STATE BRIEF) RESPONDENT : --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ. ------------------------------------------------- Crl. A. No. 962 of 2007 ------------------------------------------------- Dated this the 8th day of December, 2011 JUDGMENT Basant,J. In this appeal the sole accused/appellant assails the verdict of guilty, conviction and sentence imposed on him under Sec.302 IPC. 2. The crux of the allegations against the appellant, a person aged about 55 years, is that he at about 10.30 a.m. on 26/8/2004 on the pathway in front of the house of P.W.4 inflicted the fatal injury on deceased Saji, a young man in his early twenties on account of some misapprehension about the alleged relationship between the deceased Saji and the wife of the appellant and thereby caused the death of the deceased. He thereby committed the offence of murder punishable under Sec.302 IPC, it is alleged. 3. Investigation commenced on the basis of Ext.P1 First Information Statement lodged by P.W.1, a distant uncle of the deceased who was not a witness to the occurrence. Investigation was conducted and the final report was filed by Crl.A No.962 of 2007 2 P.W.10. The learned Magistrate committed the case to the Court of Session after observing all legal formalities. The learned Sessions Judge took cognizance of the offence alleged against the appellant. He denied the charge framed against him. Thereupon, the prosecution was directed to adduce evidence. The prosecution examined P.Ws.1 to 11 and proved Exts.P1 to P15. M.Os. 1 to 5 were also marked. 4. P.Ws.2, 4 and 5 were cited by the prosecution as occurrence witnesses. P.Ws.2 and 5 supported the prosecution case. P.W.4 did not support the prosecution case in full. She spoke only about the commencement of the incident. P.Ws.10 and 11 are police officials who had roles to play in the registration of the crime, its investigation and the filing of the final report. P.W.6 is an attestor to Ext.P3 recovery mahazar under which M.O.1 knife, the weapon of offence was allegedly recovered by P.W.10 on the basis of the information furnished by the accused to the Investigating Officer. 5. The accused in the course of cross-examination of prosecution witnesses and when examined under Sec.313 Cr.P.C. denied all circumstances which appeared in evidence against him. He took up a fairly specific stand when he was Crl.A No.962 of 2007 3 questioned under Sec.313 Cr.P.C. 6. According to the appellant, in his statement under Sec.313 Cr.P.C. he was attacked by the deceased on 26/8/04 at a different venue. He did not even know why he was so attacked by the deceased. Such an attack was by the deceased along with another person. Persons intervened and they were separated. At about 5 to 6 p.m. on 26/8/2004, deceased Sajeev allegedly attacked Prakashbabu, the son of the appellant, on the road in front of the house of P.W.4. The appellant reached the scene. He saved his son from the attack of the deceased. The deceased was drunk. He had a knife in his possession. The deceased turned against the appellant. There was another strong person also along with the deceased. The appellant does not know who that other person is. There was a push and pull involving the appellant, the deceased and that other person. In the melee the appellant suffered an injury on his hand. The appellant does not know whether the deceased suffered any injuries. Deceased had run away from the scene of the crime. 7. The accused did not adduce any defence witnesses. Ext.D1 a Case Diary contradiction was marked when PW2 was Crl.A No.962 of 2007 4 examined. Ext.D2 wound certificate describing the injury on the person of the appellant was marked through PW10, the Investigating Officer. 8. The learned Sessions Judge, on an anxious evaluation of all the relevant inputs, came to the conclusion that the prosecution has succeeded in proving the offence of murder punishable under Section 302 I.P.C against the appellant. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment. 9. Before us, the learned counsel for the appellant Ms.A.R.Usha and the learned Public Prosecutor have advanced their arguments. The learned counsel contends that the court below had grossly erred in placing reliance on the oral evidence of PWs 2 and 5. The court below erred in drawing inspiration for such oral evidence of PWs 2 and 5 from the oral evidence of PW4. Support/corroboration for such evidence of PWs 2 and 5 should not have been drawn from Ext.P1 F.I statement. The evidence of recovery of M.O1 should have been discarded by the Crl.A No.962 of 2007 5 court. The evidence of PW7, that M.O1 was the knife which he, a blacksmith, made at the request of the appellant, should have been discarded. In any view of the matter, it ought to have been held that the incident did not take place in the manner alleged by the prosecution. At any rate, the appellant must be held entitled to the benefit of doubt. In any view of the matter, the offence under Section 302 I.P.C is not established. These are the contentions raised by the learned counsel for the appellant. 10. The learned Public Prosecutor on the other hand contends that it is absolutely safe to place reliance on the oral evidence of PWs 2 and 5 which has been convincingly corroborated by the totality of other circumstances available in this case. In these circumstances, the appeal only deserves to be dismissed, contends the learned Public Prosecutor. 11. We have considered all the relevant inputs. An appellate judgment is and ought to be read as a continuation of the judgment of the trial court. We deem it unnecessary for an appellate court to re-narrate the oral and documentary evidence adduced before the trial court. Suffice it to say that the learned counsel has taken us in detail through the oral evidence of PWs 1 Crl.A No.962 of 2007 6 to 11 and the contents of Exts.P1 to P15. We have also been taken through the charge framed by the learned Sessions Judge against the appellant and the answers given by the appellant in 313 examination. We shall specifically advert to the relevant materials wherever necessary in the course of our discussions. 12. The prosecution wanted to rely on the oral evidence of PWs 2, 4 and 5 to prove the occurrence. There was a house warming ceremony in the house of PW4, a young widow/teacher, who had put up a new house. The house warming ceremony was to take place on 27.08.2004. PW4 was being helped by the neighbours/relatives for the conduct of the said ceremony on the next date. According to the prosecution, PW 2, PW5, the appellant and the deceased had all come to the house of PW4 on that night. According to the prosecution, the appellant entertained a most unjustified grouse that the deceased was having some affair with his wife. In the house of PW4, the appellant caused quarrels and disputes when he questioned the appellant about his alleged visit to the house of the appellant. People present there intervened and sent both the appellant and the deceased away advising them that such a quarrel should not Crl.A No.962 of 2007 7 take place in the house where such a solemn ceremony was to take place on the next day. Accordingly, the accused went away along the road/pathway towards north followed by deceased Saji. This much portion of the incident is spoken to by PW4. Though PW4 was cited to prove the incident proper also, PW4 did not support the prosecution's case on that aspect. She stated that she had not witnessed the incident proper, but had come to know that the deceased had succumbed to the injuries suffered. 13. The first question is whether the oral evidence of PW4 can be accepted. We must note that PW4 is a young woman, a widow and a teacher. Her cross examination does not at all reveal that she had any preference for the deceased or any prejudice against the appellant. In fact, the nature of the testimony tendered by PW4 does also eminently suggest that she is a disinterested witness unwilling to oblige the prosecution by subscribing to their version of the incident. The evidence of PW4 read in the light of her cross examination clearly reveals that she is a disinterested witness, on whose testimony reliance can safely be placed to ascertain facts and to ascertain the acceptability of the evidence tendered by PWs 2 and 5. Crl.A No.962 of 2007 8 14. PWs 2 and 5 had gone to the house of PW4 in connection with the arrangement for the next day's function. The appellant and the deceased had also come to the house of PW4 for that purpose. They support and corroborate the evidence of PW4 of what happened in the house of PW4. According to PWs 2 and 5, they had seen the further incident between the appellant and the deceased. The appellant, who had started from the house of PW4 first, had turned towards the deceased, who was coming behind him and had inflicted injuries on the deceased with M.O1 weapon. This is the consistent version of PWs 2 and 5. 15. We have been taken through the cross examination of PWs 2 and 5. Their evidence is supported by the oral evidence of PW4. There is no motive worth the name suggested against PWs 2 and 5, which can prompt them to falsely support the case of the prosecution or suppress any part of the real incident that had taken place at the scene. The scene is properly located in Ext.P7 scene mahazar. The presence of M.O2 sheath of the knife and blood marks there eminently support the case of the prosecution that the incident had taken place there. Even going by the Crl.A No.962 of 2007 9 version of the appellant in his 313 statement, the definite stand taken is that some incident had taken place at about the time of occurrence as alleged by the prosecution on the pathway in front of the house of PW4. The version of the appellant also does indirectly support the oral evidence of PWs 2 and 5. The evidence of PWs 2 and 5 clearly suggests that the deceased had suffered injuries at the hands of the appellant with M.O1 knife. 16. It is argued that reliance should not be placed on the oral evidence of PWs 2 and 5. On broad probabilities or intrinsically, we find no reason not to place reliance on the oral evidence of PWs 2 and 5. Their evidence is eminently supported by the oral evidence of PW4. Their evidence is further supported by the injuries found on the person of the deceased by PW8 doctor and described by him in Ext.P4 postmortem certificate. The evidence of PWs 2 and 5 get further support from the contents of Ext.P1 F.I statement which was lodged by PW1 on the basis of information gathered by him. PW1 is not an eye witness. 17. According to the prosecution, the version of PWs 2 and 5 gets support from the evidence of PW10 about recovery of Crl.A No.962 of 2007 10 M.O1 knife under Ext.P3 mahazar in the presence of PW6 on the basis of information furnished by the appellant to the Investigating Officer in the course of his confession statement. Exts.P3(a) and (b) are the relevant portions of the confession statement. M.O1 knife is recovered on the basis of Ext.P3(a) confession statement. M.Os 4 and 5, clothes of the appellant, were recovered on the basis of Ext.P3(b) confession statement. We find absolutely no reason to doubt or suspect the version of PWs 10 and 6, which is supported by the contents of the contemporaneous seizure mahazar Ext.P3. The evidence of PW8 doctor also supports the version about recovery. The injuries could be caused with a weapon like MO1, he confirms.. 18. The learned counsel for the appellant submits that the evidence of PWs 2 and 5 should not be accepted. The learned counsel strains to point out the alleged incongruity between the evidence of PWs 2 and 5 about the number of injuries inflicted. As per Ext.P4 postmortem certificate, the deceased had 4 injuries - 3 incised injuries and an abrasion. The evidence of PW8 clearly shows that the deliberate injury inflicted was the fatal injury described as injury No.1 in Ext.P4. Injury No.2 is an Crl.A No.962 of 2007 11 abrasion and injuries 3 and 4 are minor superficial incised injuries. According to PW8, injury No.1 could be caused by a stabbing with M.O1; whereas injuries 2 to 4 would result from contact with the tip of M.O1 knife. 19. It is in this context that we visit the oral evidence of PWs 2 and 5 again. According to PW2, there were about 2 to 3 inflictions. According to PW5, he had seen only one infliction. It is this incongruity, that is highlighted by the learned counsel for the appellant. 20. We find no merit in this contention at all. It is evident that there was only one deliberately planted injury on the deceased. The others could certainly have resulted from contact with the tip of M.O1. The evidence of PW5 shows that on seeing the first stab, he was perplexed and did not thereafter turn to the scene of occurrence. PW1 on the contrary appears to have watched the entire incident. In these circumstances, the inability of PW5 and even PW2 to specifically explain all the injuries on the deceased, cannot be reckoned as crucial at all. Accidental contact with the tip of M.O1 in the course of the incident in which the deceased suffered injury No.1 in Ext.P4, Crl.A No.962 of 2007 12 cannot be ruled out and, in these circumstances, this alleged incongruity cannot create any suspicion in the mind of the court. 21. The learned counsel contends that the real genesis of the incident is not placed before Court. A scuffle may have taken place earlier. Witnesses are deliberately suppressing that aspect of scuffle between the appellant and the deceased, argues the learned counsel for the appellant. In the instant case, we find no reason to disbelieve the evidence of PWs 2, 4 and 5 on that aspect. There is nothing to indicate that any scuffle had taken place before the deceased suffered the injuries described in Ext.P4. 22. No explanation is offered for the injuries on the accused, it is contended. The prosecution did not examine any witness to prove the injury on the accused. However, when PW10 Investigating Officer was in the witness stand, Ext.D2 wound certificate of the appellant was produced and marked. It is not as if the prosecution did want to suppress the injury on the accused. They had produced the wound certificate. As the same was marked without objection by consent as Ext.D2, no further formal proof of Ext.D2 was attempted by the Prosecutor. Crl.A No.962 of 2007 13 Undoubtedly the ideal course of conduct expected from a Prosecutor is to prove Ext.D2 by examining the author of the wound certificate. That doctor has not been examined. But the court gets a clear idea about the nature of the injuries suffered by the accused from the wound certificate marked at the instance of the appellant, though that document was already produced by the prosecution and was available on the file of the court. Even in the absence of strict proof of Ext.D2, we are satisfied that it can safely be concluded that the appellant had those injuries described in Ext.D2 on his person. 23. We will now have a look at the injuries. The injuries are described as follows in Ext.D2: i) Incised injury on the right index finger lower end of size 1 c.m X ¼ c.m skin deep. ii) Haematoma on the left side over left eye lid and maxillary area with sub conjunctival hemorrhage and oedema. 24. This is the only injury suffered by the accused. The learned counsel for the appellant argues that the witnesses do not explain this injury on the appellant/accused. Therefore, the evidence of PWs 3 and 5 deserves to be rejected for that reason, Crl.A No.962 of 2007 14 contends the learned counsel for the appellant. 25. We are unable to agree. The burden on the prosecution to explain all the injuries suffered by the accused in the course of the same incident is not a fetish. There is a reason and rationale behind the insistence that the injury on an accused must be proved by the prosecution. If significant injury is suffered by an accused in the course of the same incident and the so called eye witness is unable to explain the injury on the accused, that can be a safe indication justifying a conclusion that the witness may not have witnessed the incident at all. 26. Similarly if a witness does not explain the injury on the accused, it can in an appropriate case open up the possibility of the witness not speaking the entire truth and revealing only what is convenient to the prosecution. This is the second significance of the omission/failure on the part of the prosecution to explain the injury on the accused. 27. Thirdly, in a case where the possibility of a right of private defence exists in favour of the indictee, the inability of the witness to explain the injury on him might expose the possibility of the witness attempting to rule out or suppress the Crl.A No.962 of 2007 15 case of private defence available to the accused. 28. These are the reasons behind the insistence of law that the injuries on an accused person must be explained. In order to attract that obligation and to persuade a Court commend adversely on the prosecution, the injury must be significant. It is only then that it can be said that the eye witness must have perceived the suffering of the injury by the accused and should have explained such injury on the accused. 29. In the instant case, there is no dispute about the presence of PWs 3 and 5 at the scene of occurrence. Their presence is supported convincingly by the oral evidence of PW4. They are not shown to have any interest in favour of the deceased or against the accused as to prompt them to black out any part of the real incident that had taken place. We look at the insignificant injury described in Ext.D2. That injury on the base of the index finger could easily have been suffered by an assailant when he attempts to handle a weapon of offence like M.O1 described in detail in Ext.P3. Such an injury appears to be eminently possible and reasonable when the assailant attempts to handle a fairly big weapon (total length 27.5 c.m) like M.O1. Crl.A No.962 of 2007 16 The injuries described in Ext.D2 are not such injuries, the non explanation of which can ip so facto persuade a court to throw over board the oral evidence of PWs 3 and 5 as also the case of the prosecution. The absence of specific explanation by the ocular witnesses for the insignificant injury suffered by the appellant described in Ext.D2 cannot, in these circumstances, deliver any advantage to the appellant. 30. We have already noted that the version of the accused also supports the possibility of an incident on the road in front of the house of PW4. The evidence of PWs 2, 4 and 5 to this extent is rendered possible by the version of the appellant. We have already noted that PWs 2 and 5 are not shown to have any interest to suppress any part of the real incident that had taken place. The inability of PWs 2 and 5 to perceive Ext.D2 injury suffered by the appellant in the course of the incident cannot, in these circumstances, generate any reasonable doubt in the mind of the court about the acceptability of the oral evidence of PWs 3 and 5 and the credibility of the prosecution version. 31. The appellant could not have been the aggressor. The deceased must have been aggressor. There is no direct evidence Crl.A No.962 of 2007 17 as to who was in possession of M.O1 at the relevant time, argues the learned counsel. The possibility that the weapon must have been with the deceased and it may have come into the hands of the appellant in the course of the incident, cannot be ruled out, contends the learned counsel for the appellant. This contention is also not in tandem with the evidence of PW7. The evidence of PW7 - blacksmith, shows that he had made M.O1 knife as per the order of the appellant. The cross examination of PW7 does not throw up any possible reason for PW7 to speak falsely against the appellant. That version of PW7 can safely be believed and when believed, it knocks the bottom out of the theory that the deceased might have been in possession of M.O1 when the incident on the pathway commenced. That version is belied by the ocular version of PWs 2 and 5. 32. The evidence of recovery of M.O1 on the basis of information furnished by the accused to PW10 further confirms the acceptability of the prosecution version. PW10 is, of course, a police officer. His evidence is supported by the oral evidence of PW6. It is also supported convincingly by the contents of the contemporaneous Ext.P3 recovery mahazar. Crl.A No.962 of 2007 18 33. The clothes of the appellant (M.Os 4 and 5), going by Ext.P5 report of the Director of the Forensic Science Laboratory, had blood marks on it. This is very much consistent with the case of the prosecution. Ext.P5 shows that the blood was of `O' group and that again is in tandem with the case of the prosecution that the deceased also had `O' group of blood. 34. We are conscious of the tiers of the burden on the accused and the prosecution. The golden thread that runs through the entire fabric of administration of criminal justice in this country insists that the burden is entirely on the prosecution to prove its case beyond doubt. The accused may plead or refuse to plead. That can have no bearing on the burden on the prosecution to prove its case beyond doubt. 35. Section 105 of the Evidence Act, without any doubt, places the burden squarely on the shoulders of an accused to establish his right of private defence. The right of self defence being one of the exceptions to criminality can be assumed to be absent in every case. The burden will be on the accused to show that he is protected by the right of private defence. Under the law in this country, it is very evident that the burden on an Crl.A No.962 of 2007 19 accused to establish his plea for one of the general exceptions to criminality is much less onerous than the initial paramount burden on the prosecution. The accused need not adduce any evidence. He can rely on broad probabilities emerging from the case of the prosecution. He can rely on answers given in cross examination by the prosecution witnesses. He can rely on the totality of inputs. His burden need be discharged not on the yardstick of proof beyond reasonable doubt, which is the standard expected from the prosecution. An accused need discharge