IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 14TH OCTOBER 2009 / 22ND ASWINA 1931 CRL.A .No. 1017 of 2003() ------------------------ SC.184/2001 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA .................... APPELLANT(S): ACCUSED --------------------- JACOB THOMAS @ BAIJU, S/O. THOMAS, VETTUKUZHIYIL HOUSE, CHOTTUPARA BHAGAM, CHOTTUPARA KARA, PERIYAR VILLAGE. BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SRI.SOORAJ ELANJICKAL RESPONDENT(S): COMPLAINANT -------------------------- STATE-REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.A. 1017 of 2003 * * * * * * * * * * * * * * * * * * Dated: 14-10-2009 JUDGMENT In this appeal filed by the sole accused in S.C. No. 184 of 2001 on the file of the Addl. Sessions Court (Adhoc-I), Thodupuzha , he challenges the conviction entered and the sentence passed against him for offences punishable under Sections 447 and 326 I.P.C. 2. The case of the prosecution can be summarised as follows:- On 24-7-1998 at about 10.30 a.m. the accused out of his previous enmity towards P.W.2 criminally trespassed into the cardamom estate of Binoy S/o. P.W.2 at Attappallam within the limits of Kumali Panchayath and uttered obscene words at P.W.2 and assaulted P.W.2 by cutting him with MO1 chopper three times causing injuries including grievous hurt to P.W.2. The above assault was with the intention to kill P.W.2. The accused has thereby committed offences punishable under Sections 447 Crl.A. 1017 of 2003 -:2:- 294 (b), 324 and 307 I.P.C. 2. On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 14 witnesses as P.Ws 1 to 14 and got marked six documents as Exts.P1 to P6 and a chopper as MO1. 3. After the close of the prosecution evidence the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He had the following to submit before Court:- He was proceeding to his estate at Attappallam with cardomom shoots for the purpose of planting them. He was proceeding through the road inside Pallivathukkal estate. The said road passes through the property of P.W.2. Timber logs were put across the said road inside the property of P.W.2 preventing the accused using the road. P.W.2 was sitting on one of the Crl.A. 1017 of 2003 -:3:- timber logs. The accused got out of his jeep and attempted to call his workers in the nearby estate belonging to him. At that time P.W.2 told him that he was waiting for him for the past 2-3 days. The accused was actually returning after the funeral of his grandfather. He has got an estate at Chottupara. It was the cardamom shoots intended for planting in his estate at Chottupara that was being brought to Attappallam. P.W.2 abused him in filthy language. P.W.2 also beat him with the stem of a coffee plant. P.W.2 then pelted stones at him. When he sat on the ground, P.W.2 came with a knife and made him stand up and holding the knife against his neck . P.W.2 walked along the road abusing him in filthy language. Thereupon he caught hold of the knife . What happened thereafter was a grapple for the knife. Both of them rolled on the ground. P.W.2 then called his sons Sabu and Sibi and exhorted them to kill the accused. The accused then loosened his grip of P.W.2. He was taken to the hospital by his brothers who were there in the Crl.A. 1017 of 2003 -:4:- neighbouring jungle. He was under treatment for 7 days in the District Hospital, Kottayam. 4. Except marking Exts.D1 and D2 certified copies of the final reports in two crimes namely Crime No. 370/2000 and Crime No. 116/2002 in Kumali Police Station at which P.W.2 was an accused, the accused did not adduce any defence evidence. 5. Since this was not a fit case for acquittal, the court below did not order an acquittal under Sec. 232 Cr.P.C. 6. The learned Sessions Judge, after trial, as per judgment dated 30-5-2003 acquitted the appellant of the offence punishable under Sections 294 (b) and 307 I.P.C. but convicted him of the offences punishable under Sections 447 and 326 I.P.C. For the conviction under Section 447 I.P.C. he was sentenced to rigorous imprisonment for three months and for the conviction under Section 326 I.P.C. he was sentenced to rigorous imprisonment for six months and to pay a fine of Rs. 10,000/- and on default to pay the fine to suffer simple imprisonment for three months. The substantive sentences were directed to be run concurrently. The fine amount as and when Crl.A. 1017 of 2003 -:5:- reaslised was directed to be paid to P.W.2 as compensation. It is the said judgment which is assailed in this appeal. 7. I heard the Sr. Advocate Sri. Gopakumaran Nair , the counsel appearing for the appellant and Sri.C.M. Nazar the learned Public Prosecutor. 8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? THE POINT 9. The learned Public Prosecutor made the following submissions in support of his fervent plea for confirming the conviction and sentence passed by the court below:- It is true that P.W.2 has mentioned about a scuffle between him and the accused. But that was one hour prior to the main incident. As was rightly held by the court below, there is no evidence to show that the accused has any right to enter the cardamom estate of P.W.2. He was, therefore, committing criminal trespass by entering into the cardamom estate in the possession of P.W.2. The injury No. 1 sustained by P.W.2 who Crl.A. 1017 of 2003 -:6:- was then aged 68 years is a serious injury in which even the omentum was protruding out of the wound. When the doctor examined as P.W.11 has deposed that the injuries sustained by P.W.2 could be inflicted by a weapon like MO1, it is not open to the accused to contend otherwise. MO1 is a chopper having a small curve at the tip and it is quite possible to inflict incised injuries on P.W.2 as was found in Ext.P5 wound certificate. Except coming out with a story, the accused has not even remotely proved that P.W.2 was the aggressor and that P.W.2 had sustained the injuries in the course of a grapple for the kinife while engaged in a scuffle with the accused. There is no case for the accused that he has sustained injuries in the occurrence. The conviction entered and the sentence passed by the court below do not warrant any interference at the hands of this Court. 10. I am afraid that I cannot agree with the above submissions. P.W.1 (Chacko @ Sabu ) is the son of P.W.2, the injured. P.W.1 who lodged Ext.P1 F.I. statement before the Assistant Sub Inspector of Police (PW13 – Sulaiman) , Kumali Police Station. Eventhough P.W.1 is not an occurrence witness Crl.A. 1017 of 2003 -:7:- he was the person who set the law in motion. During his cross- examination, he has unambiguously admitted that the shortcut for the accused and others is through the pathway passing through the middle of the property of himself and others. P.W.2 (Cherian) is the injured. He has denied all the defence suggestions put to him during cross-examination . Eventhough he confessed that there was a scuffle between him and the accused he would say that the said scuffle took place one hour prior to the actual occurrence. In the first place he had no such case in his chief examination or before the police as revealed by Ext.P7 F.I.R. When his attention was invited to Ext.P2 scene mahazar that there were timber logs placed blocking the jeep passing along the road he had pretended ignorance about a statement to that effect in the scene mahazar. He admitted that he is an accused in Exts.D1 and D2 crimes. He also admitted that with regard to the present occurrence there is a counter case against him and the same is pending trial before the very same court as S.C. 186/02. He conceded that he was fined Rs. 5 lakhs by the Assistant Settlement Officer for cutting trees from the cardamom Crl.A. 1017 of 2003 -:8:- plantation from where cutting of trees is prohibited. He admitted that he was not against the Panchayath widening the pathway passing through his property. But his objection was against the uprooting of cardamom plants. Ext.D2 is a case in which DW2 is an accused and he was the aggressor. Going by the testimony of P.W2 the occurrence was witnessed by his workers from 8 cardamom plants away. The distance between two plants is according to him 8 feet. If so, his workers would have seen the occurrence from a distance of about 64 feet away. He qualified his statement by saying that the plants were in a dried state by that time. 11. P.W.3 (Selvi) is an eye-witness examined by the prosecution. According to her she was working in P.W2's estate. Her version is that she first heard the cry of P.w.2 and thereupon she along with Kaveri and Lakshmi (charge witness Nos. 3 and 5) ran towards P.W.2. When she first saw P.W.2, the accused and P.W.2 were engaged in a scuffle. She admitted that P.W.2 usually carries a knife and a stick while coming to the estate and that the knife is a small knife. According to her there was a grappling for the knife between P.W2 and the Crl.A. 1017 of 2003 -:9:- accused and it lasted for about 10 minutes. When P.W2 has no case that there was a grapple between him and the accused for the knife or that it lasted for 10 minutes, PW3 who claims to be an eye witness came out with such a case. P.W3 would further say that P.W.2 fell down and the accused sat on P.W.2 and the accused then took away MO1 knife. P.W.2 has no case that he fell down or that the accused had sat on him. The knife which was mentioned by P.W.3 as MO1 is really a chopper. Going by Ext.P3 mahazar the measurement of MO1 is 50.5 cm. (length) with its blade having a length of 36cm and having a small curve at its tip. It is a single edged weapon. P.W.3 admitted that her employer is P.W.2 and it was P.W 2's son who took her to the court in a Sumo vehicle and they had stayed in a lodge at Moolamattom. Notwithstanding the above testimony of P.W.3 the truth came out from her mouth regarding the actual occurrence to say that P.W.2 carries a stick and a knife while coming to this estate and that there was a grappling between P.W.2 and the accused for the knife for about 10 minutes. 12. P.W.4 (Abbas) was the driver of the jeep in which the accused allegedly came to the scene. He turned hostile to Crl.A. 1017 of 2003 -:10:- the prosecution and during his cross-examination by the defence he spoke in terms of the defence version. 13. P.W.5 (Satheesh) was the cleaner of PW4's jeep. He also turned hostile to the prosecution. Even in his chief examination, he admitted that there was an altercation between P.W.2 and the accused. 14. P.W6 (Abraham @ Sibi) is the son of the accused. He did not see the occurrence. He took P.W2 to the hospital. 15. P.W.7 (Siddique) had only informed P.W6 the son of P.W2 about the occurrence. 16. P.W.8 (Ravi) is an attestor to Ext.P2 scene mahazar. 17. P.W.9 (Mathew) is an attestor to Ext.P3 recovery mahazazr pertaining to MO1 chopper. He turned hostile to the prosecution. He, however admitted his signature in Ext.P3 mahazar. 18. P.W.10 (V.M. Iype) was the Village Officer, Kumali who prepared Ext. P4 scene plan. 19. P.W.11 (Dr.Thomas Mathai) was the Civil Surgeon of Taluk Headquarters Hospital, Kanjirappally. He examined P.W2 at 1 p.m. on 29-7-1998 and issued Ext.P5 wound certificate as Crl.A. 1017 of 2003 -:11:- per which P.W.2 had the following three injuries:- i) Incised penetrating wound of 10 cms. in length on the left side of lower part of chest . Omentum was protruding out through the wound. ii) Incised wound of 3 cms. on the left shoulder region. iii) Incised wound of 3 cms. on the medial side of lower part of right thigh. The alleged cause stated to the doctor was that the accused had cut him with a knife. (ബജ കതക വ ടയതല ച ) This doctor did not depose in his chief examination that the above three injuries could be inflicted by MO1. He admitted that the length and width of injury Nos.2 and 3 have not been noted in Ext.P1 wound certificate and it was necessary to note this . Going by the measurements of MO1 chopper it can easily be inferred that an incised penetrating wound like injury No. I could not have been inflicted with such a weapon. Even according to P.W.3, (the independent occurrence witness) the weapon used was a knife. It was not put to her that MO1 was the weapon with which the accused stabbed P.W.2. 20. P.W.12 (Raveendran) was the head constable of Crl.A. 1017 of 2003 -:12:- Ettumanoor Police Station, who recorded the statement of P.W.2 from the Medical College Hospital, Kothamangalam. The defence objected to the marking of the statement recorded by P.W.12 for the reason that the first information statement had already been marked through P.W.1 given to the Kumali Police and therefore, the statement recorded by P.W.12 would be hit by Sec. 162 Cr.P.C. The above objection was sustained by the court below . 21. P.W.13 (Sulaiman) who was the A.S.I. of Kumali Police Station recorded Ext.P1 F.I. statement given by P.W.1 and registered Ext.P6 F.I.R. as Crime No. 155/98 for an offence punishable under Sec. 324 I.P.C. He claims to have prepared Ext.P2 scene mahazar which was, however, not put to him. Sec. 307 I.P.C. was subsequently added. He admitted that timber logs were seen lying on the road inside the property. 22. P.W.14 ( Radhakrishnan) was the Circle Inspector of Police, Kumali . Ext.P7 is the F.I.R. registered as Crime No. 250/98. The counter case to the present occurrence registered as Crime No. 152/98 for offences punishable under Sections 324 and 506 (2) read with Sec. 34 I.P.C was proved through Crl.A. 1017 of 2003 -:13:- P.W.14 who deposed that the counter case is pending trial before the court below as S.C.186/2002. He confessed that the place of occurrence, scene of occurrence scene plan etc. in both the cases are the same. 23. The main fallacy into which the court below fell was the wrong assumption that there was no evidence to show that the accused had a right to enter the property of P.W.2 for user as a way and therefore, he was a trespasser. Yet another wrong assumption made by the court below was that the accused did not sustain any injuries. Both these assumptions made by the court below were unfounded . In the face of the testimony of P.W1 to the effect that the way for the accused and others was through the middle of their property, it was not permissible for the Court below to assume that there was no evidence to show that the accused had a right to use the way passing through the property of P.W.2. The case of the accused also was that when he came into the property of P.W.2 in his jeep, P.W.2 obstructed him. According to him when he came through the way passing through the property of P.W.2 in his jeep timber logs had been kept across the road blocking the Crl.A. 1017 of 2003 -:14:- way. Eventhough this part of the defence suggestion was denied by P.W.2, the testimony of P.W.13 A.S.I. shows that he had seen timber logs lying on the road. 24. In the face of the testimony of P.W.14 to the effect that a case was registered against P.W.2 for offences punishable under Sections 324 and 506 (ii) as Crime No. 152/98, it was wrong on the part of the court below in assuming that the accused did not suffer any injury. This was a case where the accused who had a right to pass through the property of P.W.2 while doing so was obstructed resulting in an altercation and scuffle . The testimony of P.W.3 clearly indicate that P.W.2 is in the habit of carrying a knife and that there was a grapple for the knife between P.W.2 and the accused for nearly 10 minutes. The location of the injuries on the body of P.W.2 also indicate that injury No. 2 and 3 may not be the result of any intentional cut. As mentioned earlier it is impossible to inflict an insized penetrating would with a weapon like MO1 chopper. 25. In Pylan v. State of Kerala 1992 (2) KLT 661 the Division Bench of this Court observed as follows:- “9. P.W.15 – Circle Inspector of Police in this case admitted that first and third accused were hospitalised Crl.A. 1017 of 2003 -:15:- on the same day of occurrence and they were treated in the hospital for two days as inpatients. What are the injuries sustained by first and third accused ? Prosecution has not given any explanation whatsoever for non-production of the documents relating to the injuries sustained by first and third accused. Even when P.W.15 was asked about them in cross- examination, prosecution was not prepared to take any step to get down the document revealing the injuries sustained by first and third accused. Learned Sessions Judge surmounted this hurdle by putting the burden on the accused like this. “If first and third accused have a case that they have sustained injuries in the occurrence, they could have caused the production of the relevant document from the hospital”. If prosecution has a case that the first and third accused have sustained injuries in the occurrence, why should the prosecution suppress the fact ? Learned Sessions Judge observed that “non-explanation of injuries on the accused is not always fatal when such injuries are minor or superficial. It is still a riddle why the prosecution has not moved a little finger for not producing the First Information Statement furnished by third accused on the same day of occurrence. That would certainly have given the court an opportunity to see the rival version of the same incident presented to the police on the same day. 10. Learned Public Prosecutor contended that injuries on third accused have been sufficiently explained and even the First Information Statement contained as explanation tot hat effect. The explanation is this: When second accused dealt a blow on the deceased, it fell on the back of third accused by mistake. Whether the explanation is true or not, since the court is deprived of the chance to know even the nature of injuries sustained by the third accused, we are not prepared to accept the aforesaid explanation as sufficient to justify for suppression of those important materials. According to the appellant's counsel, the documents relating to the Crl.A. 1017 of 2003 -:16:- wounds of the two accused were suppressed with the fear that, if they come to lime light the serious injuries on the person of those accused would be unadjustably incompatible with the prosecution story. That apart, what about the injuries sustained by first accused ? It is very strange, if not incomprehensible, that the prosecution has strained a lot in suppressing such materials. Merely examining three eye witnesses is of no use for the criminal court to come to the conclusion as to how the incident had commenced, developed and ended”. Except for the interested testimony of P.W.2 regarding the starting of the incident, the evidence on record clearly shows that it was P.W.2 who was responsible for the occurrence by blocking the way over which the accused has a right to pass. The testimony of P.W.3 clearly shows that P.W.2 and the accused were seen engaged in a scuffle and there was a grappling for the knife between the two for about 10 minutes. The F.I.R, wound certificate, charge sheet etc. in the counter case were not produced by the prosecution to facilitate the court to find out as to which of the two rival versions could be true. This is a case where the genesis of the occurrence has been suppressed by the prosecution attracting the ratio in Lakshmi Singh v. State of Punjab – AIR 1976 SC 2263. On the evidence before court there is absolutely no justification for the Crl.A. 1017 of 2003 -:17:- conclusion that the accused was a trespasser on the property of P.W.2 or that it was the accused who started aggression. When the accused had every right to pass through the property of P.W.2 and he was indeed passing through the said property in exercise of his right, it was P.W.2 who caused a blockade by putting timber logs across the road resulting in the occurrence, the starting point of which has been suppressed by the prosecution. Right of private defence is available not only against aggression on the person but also against aggression upon property over which the person concerned has a right to enjoy. It is not the law that for the exercise of the right of private defence the accused should actually sustain an injury. A reasonable apprehension will suffice. The law is well settled that even if the accused has taken up the plea of self defence , that will not absolve the prosecution of its burden to prove the offences charged against the accused . The prosecution will have to prove that the accused inflicted the injuries on the deceased in the manner and under the circumstances alleged by the prosecution. The admission of the accused that he inflicted the injuries on the victim will not in any way lessen the burden Crl.A. 1017 of 2003 -:18:- which is heavily on the prosecution. (Vide Surendran @ Sasi v. State of Kerala -1977 KLT 17). The real onus is on the prosecution to prove its case including the manner of occurrence beyond all reasonable doubt . The accused has only to raise a doubt in the mind of the court or to satisfy the court that the defence version disclosed by the accused was a probable version of the occurrence. (Vide Ram Swarup v. State of Haryana – 1993 Crl.L.J. 3540 (SC)). The accused can take advantage of the prosecution evidence as it stands and argue that even if such evidence is accepted as reliable it would sustain a plea of private defence in respect of the acts attributed to him. The failure to set up an express plea of private defence cannot preclude him from making out such a defence on the basis of the prosecution evidence itself. (Vide Thomman v. State of Kerala - -1957 KLT 859 and Chandrasekharan Adithiripad v. State of Kerala – 1987 Crl.L.J. 1715). It is pertinent to note that even according to P.W 3, CW3 and CW5 had also seen the occurrence. But they were kept away from the witness box. The conviction entered and the sentence passed by the Crl.A. 1017 of 2003 -:19:- Court below overlooking the above vital aspects cannot be sustained and are accordingly dislodged. The appellant is found not guilty of the offence punishable under Secs. 447 and 326