IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 CRL.A.No. 1134 of 2006() ------------------------ SC.325/2002 of ADDITIONAL SESSIONS JUDGE (ADHOC-II) ERNAKULAM .................... APPELLANT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR RESPONDENT(S): ACCUSED ----------------------- 1. DOMY, S/O. KURIAKOSE, POCKAL VEEDU, PERAMANGALAM KARA, EANANALLOOR. 2. KURIAKOSE, S/O. OUSEPH, POCKAL VEEDU, PERAMANGALAM KARA, EANANELLOOR. ADV. SRI.JOSE KYTTIYANY FOR R1 SRI.V.C.JAMES FOR R1 SRI.PAUL JOSE FOR R1 SRI.SOJAN JAMES FOR R1-2 SRI.C.K.SREEDHARAN FOR R1-2 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Crl.A.No.1134 of 2006 ---------------------------------------- Dated this the 17th day of March 2010 J U D G M E N T Basant,J This appeal by the State is directed against a verdict of not guilty and acquittal of respondents/accused 1 and 2 in a prosecution for offences punishable under Sections 341,324 and 302 read with 34 I.P.C. 2. The crux of the charge against respondents/accused 1 and 2 can be summarised as follows: 3. PW1 is the brother of the 2nd accused. The 1st accused is the son of the 2nd accused. There were disputes between PW1 and the second accused regarding properties which they owned and possessed adjacent to the property of each other. There were civil litigations also and the parties were already before the civil courts. Some interim orders also have been passed by the civil court in such civil litigations. According to the prosecution, PW1 was not able to secure local workers to attend to his work in the property. He, therefore, requisitioned the services of his son's brother-in-law PW2 to get in some workers to work in his Crl.Appeal No.1134/06 2 property. PW2 allegedly made available to PW1 the services of some workers including deceased George. Deceased George and some other workers were sent by PW2, residing at a place called Vannapuram about 25 Kms away from the scene of the crime, to PW1. On the morning of 21/08/1999, deceased George and others had come to work for PW1. When they attempted to do the work, there were objections on the side of the 2nd accused. The police was informed. They came to the scene. Police wanted work to be discontinued. Accordingly, the work was discontinued. 4. Deceased George then went to Vannapuram and met PW2. Thereafter PW2 and deceased George were allegedly coming to the house of PW1. A common pathway leads to the house of the 2nd accused and PW1. When PW2 and the deceased were passing through that pathway on the evening of 21/8/1999 at about 4.45 p.m., accused 1 and 2 - son and father, in furtherance of their common intention, allegedly wrongfully restrained them. Thereafter, the 1st accused, with MO1 chopper, allegedly inflicted the fatal injury on deceased George. The 2nd accused allegedly caused injuries to PW2 by beating Crl.Appeal No.1134/06 3 him with MO2 stick. The deceased was rushed initially to a local hospital and thereafter to the medical trust hospital, Ernakulam. The deceased breathed his last at 8.20 p.m at that hospital on the same day. PW1 went to the local police station and lodged Ext.P1 complaint at 11 p.m on 21/08/1999. PW14, on the basis of Ext.P1 F.I.statement, registered Ext.P1(a) F.I.R. The F.I.R reached the court only at 10.30 a.m on 23/08/1999. The learned Magistrate received it in his hands at 2.30 p.m on the same day. Investigation commenced in Ext.P1(a) F.I.R. Investigation was conducted by PW15 who filed the final report raising allegations under Sections 341,324 and 302 read with 34 I.P.C against the respondents/accused 1 and 2. 5. The learned Magistrate, after complying with the legal procedure, committed the case to the court of Session. The learned Sessions Judge took cognizance. Both accused denied the charges levelled against them and thereupon the prosecution examined PWs 1 to 15 and proved Exts.P1 to P11. Mos 1 to 5 were also marked. 6. In the course of cross-examination of the prosecution witnesses and when examined under Section 313 Cr.P.C and Crl.Appeal No.1134/06 4 later in the course of defence evidence, the accused took up a fairly specific and definite stand. According to them, they were not the aggressors; but were the victims of aggression. There was an unholy attempt to trespass into the property of the 2nd accused by PW1. This had obliged the 2nd accused to go to the civil court. He had allegedly obtained interim orders in civil litigations initiated by him restraining PW1 and his men from trespassing into his property. On that morning, that is on 21/08/1999, PW1, along with some goonda elements, had attempted to trespass into his property and caused loss to him in violation of the orders of the civil court. According to the 2nd accused, he had informed the police and the police had come to the scene. On being satisfied about the justice of the cause of the 2nd accused, the police officers had directed PW1 and his men not to continue with the work. By the intervention of the police, the miscreants had gone away from the scene of the crime. 7. Later, on that evening at about 4.45 p.m., Pws.1 and 2, along with deceased George and some others, had indulged in wanton aggression by attempting to trespass into the Crl.Appeal No.1134/06 5 property of the 2nd accused. The 2nd accused had raised objections to it. Thereupon, the 2nd accused was attacked. He cried aloud. His son, the 1st accused had come from their house close to the scene of occurrence to save his father, the 2nd accused. Both accused 1 and 2 were attacked by PW1, PW2, deceased George and others. In the course of that incident, accused 1 and 2 had suffered injuries. According to the accused, in the course of the aggression by Pws.1, 2, deceased George etc. they must have suffered the injuries. The deceased must have suffered the injuries when an attack intended on the 1st accused and that too with a dangerous weapon, landed on the body of deceased George. According to the accused, they had gone to DW2 doctor later on the same evening and Exts.D3 and D4 wound certificates were issued by DW2 giving the details of the injuries suffered by them. It is their further case that a crime was registered on the basis of the complaint of the 2nd accused by the local police as crime No.64/99. The F.I.R under Section 302 I.P.C at the instance of PW1 was registered as crime No.63/99. According to the accused, the police had unfairly acted in collusion with PW1. They have succumbed to Crl.Appeal No.1134/06 6 the influence of influential PW1 and relatives. A false case has been instituted against the accused without conducting any proper investigation. It is particularly complained by them that no investigation worth the name has been conducted in crime No.64/1999 registered by the police. Unfairly and arbitrarily, without conducting any proper investigation, the charge sheet has been filed against the accused, they contended. 8. The accused examined Dws 1 and 2 and proved Exts.D1 to D4. Ext.X1 series and X2 series were also marked by the defence. 9. The learned Sessions Judge, on an anxious consideration and evaluation of the totality of the circumstances, came to the conclusion that the prosecution has not succeeded in establishing the offences alleged against the accused. The court below, in these circumstances, proceeded to concede the benefit of doubt to respondents/accused 1 and 2. By the impugned judgment the court below proceeded to hold that the respondents are not guilty and acquitted them of all the offences alleged against them. 10. The State has come up in appeal. We have heard Crl.Appeal No.1134/06 7 Sri.K.J.Mohammed Anzar, the learned Public Prosecutor as also Sri.C.K.Sreedharan the learned counsel for the respondents/accused 1 and 2. Detailed arguments have been advanced before us. 11. An appellate judgment is and must be read as a continuation of the judgment of the trial court. The learned Sessions Judge has adverted to all the relevant pieces of evidence - oral and documentary as also all relevant matters in the impugned judgment. It is not necessary, in these circumstances, for us to attempt to re-narrate such pieces of evidence and matters that were placed before the court below. Suffice it to say that the learned Public Prosecutor has taken us in detail through all the evidence - oral and documentary and materials available in this case. The oral evidence of Pws.1 to 15 and Dws. 1 and 2 have been read over to us in meticulous detail. The documentary evidence relied on by the prosecution and the accused have also been read over to us in detail. We have also been taken through all other matters including 313 statements of both accused. We are not, in these circumstances, proceeding to re-narrate all the relevant Crl.Appeal No.1134/06 8 circumstances which have been introduced in evidence. We shall refer to such materials as and when necessary when we discuss the relevant aspects. 12. Before proceeding to discuss the contentions, we feel that it will only be apposite for us to remind ourselves of the law. In this case, the plea of the accused, we find, is that there are elements of the plea of right of private defence raised by the accused. Of course, we do note that accused were careful and cautious and did not rush to make a specific admission or claim that the deceased may have suffered the injuries at the hands of the 1st accused. That traditional reluctance to make that admission notwithstanding, it is very evident that the accused had taken up a very specific defence that they are protected by the right of private defence. According to them, they are not the aggressors and PW1 and his party were the aggressors. The accused were only exercising their legitimate right of private defence to defend the property in their possession. 13. The claim of right of private defence need not be specifically raised by the accused, it is trite. It is enough if the Crl.Appeal No.1134/06 9 plea arises from the materials available in a case. The fact that the accused had not specifically pleaded his claim for general exception to criminality under Section 96 to 106 dealing with the right of private defence, cannot absolve any court of its responsibility to consider the plea for the accused to claim exculpation if such plea is available in the materials before it. In the instant case, we find that the plea has been raised though it is not specifically admitted that the deceased may have suffered the injuries at the hands of either accused. 14. When a plea of right of private defence is raised or arises, it is well settled that the initial burden on the prosecution to prove its case beyond reasonable doubt does not ever vanish or get reduced. The burden definitely is on the prosecution to prove its case beyond reasonable doubt as in any other criminal case. 15. A criminal court is duty bound to assume under Section 105 of the Evidence Act that there are no circumstances bringing a case within the sweep of any one of the general exceptions available to an accused under the Indian Penal Code. The burden is on the accused to prove that he is Crl.Appeal No.1134/06 10 protected by the right of private defence. For this, he need not adduce any evidence, it is well settled. He can rely on the prosecution evidence itself to support his plea of private defence. He can rely on the answers given by the witnesses in cross-examination, the broad probabilities, the answers given in 313 examination and the defence evidence, if any, to build up his case and claim exception from criminality under one of the general exceptions in chapter IV of the I.P.C. An accused raising a plea for protection of any one of the general exceptions need not prove his case beyond reasonable doubt as the prosecution is expected to prove its initial case. The burden on the defence can be discharged by adducing evidence which will pass muster on the standards insisted in a civil case - that is proof on the touch stone of probabilities. Preponderance of possibilities and probabilities is the yard stick with which the court will decide whether the burden on the accused to establish his plea of right of private defence has been discharged or not. 16. Even in a case where the burden under Section 105 of the Evidence Act is not discharged satisfactorily by the Crl.Appeal No.1134/06 11 accused, if the accused in the course of such unsuccessful attempt to establish the plea for protection under one of the general exceptions, succeeds in generating reasonable doubt on the initial case of the prosecution, the accused is entitled to succeed not because he has established his defence; but because he has succeeded in showing that the prosecution has not discharged its initial burden to establish the offence against him beyond reasonable doubt. These proportions of law are too well settled to warrant reference to any precedents. 17. Evidently, the attempt in this case by the accused was to claim the benefits of the last dimension of the burden of proof narrated above. The learned counsel for the respondents submits that even if the entire evidence of the prosecution were accepted, it has got to be seen that the prosecution has not placed all its cards before court and there has been contumacious suppression on the part of the prosecution of the totality of the circumstances. The prosecution has not acted fairly and reasonably and has been behaving only like a persecution and not a prosecution. The burden is heavy on the prosecution to place all relevant facts before the court before Crl.Appeal No.1134/06 12 clamoring for conviction. In a serious offence like this, that burden on the prosecution has not been successfully discharged by the prosecution, argues the learned counsel for respondents/accused 1 and 2. 18. We must, at the outset, note that the prosecution has examined only PWs. 1 to 4 and 6 to throw light on what had happened at the venue of the crime. PW1, as stated earlier, is the informant and brother of the 2nd accused. PW2 is the brother-in-law of the son of PW1. PW3 is none other than the wife of PW1. PW4 is a worker from Vannapuram, from the place of PW2 and the deceased, who had been brought to work for PW1 on that day. After the objections raised by the respondents and the intervention by the police on that morning he could not work at the place where he was expected to work; but it is the case of the prosecution that PW4 was working elsewhere in the property of PW1 on that day. He had allegedly heard the cries and had come to the scene of the occurrence. He had not admittedly seen the manner in which the deceased had suffered the injuries. He saw the deceased with injuries and the 1st accused with MO1 weapon. He had allegedly seen Crl.Appeal No.1134/06 13 the 2nd accused beating PW2 with MO2 stick. PW6 is a friend of the son of PW1, who, on coming to know of the incident, had reached the scene of the crime shortly after the occurrence. He had allegedly seen accused 1 and 2 at the scene. PW2 claimed to have seen the entire occurrence. PWs 1 and 3 were allegedly available in their house and on hearing the cries, they had rushed to the scene of the occurrence and it is then that they had allegedly seen the occurrence. 19. The million dollar question to be decided in this case is whether the court below has erred in not accepting and acting upon the oral evidence of Pws.1 to 3 which allegedly has the support from the oral evidence of Pws.4 and 6. The prosecution had attempted to rely on Ext.P1 F.I.Statement to offer corroboration for the oral evidence of PWs.1 to 3. The prosecution has further relied on the alleged recovery of MO1 under Ext.P8 seizure mahazer by PW15 in the presence of PW12 to offer support for the oral evidence of PWs.1 to 3. According to PW15, the 1st accused had made a confession statement and had disclosed information about the concealment of MO1 and it was on the basis of such statement that PW15 Crl.Appeal No.1134/06 14 proceeded to recover MO1 under Ext.P8 seizure mahazer. PW12 did, of course, turn hostile. He admitted his signature in Ext.P8. 20. Before proceeding to analyse the evidence, we must remind ourselves of the nature and quality of our jurisdiction in an appeal against acquittal. Theoretically, the jurisdiction of an appellate court is co-extensive and co-terminus with that of the trial court. In that view of the matter, the attempt to re- appreciate the evidence is perfectly justified and not beyond the powers of the appellate court. But no appellate court can ever ignore or overlook the evident advantage which the trial court has in the matter of appreciation of evidence. The trial court sees the witnesses perform in the witness stand before it. The trial court is able to perceive the demeanour of the witnesses. Though the jurisdiction may technically be co- extensive and co-terminus, an appellate court will do well to remember this evident advantage which the trial court has in the matter of appreciation of evidence. An alert trial court perceives many an input in the course of the trial which may have a bearing on the question whether the witnesses can be Crl.Appeal No.1134/06 15 believed or not. The conscious of such advantage which the trial court has and conscious of the re-inforcement of the presumption of innocence by the order of acquittal rendered by the trial court, the appellate court has to exercise its jurisdiction while considering the evidence in an appeal against acquittal. 21. PW1 is the informant. He admits that there were civil disputes between the parties and that the parties had already gone before the civil court with litigations. That there were interim orders passed by the civil courts is also conceded; but surprisingly PW1 has not made any documents available to the investigating officer nor has the investigating officer cared to ascertain the nature of the dispute between the accused and PW1. This is not a case where the nature of the civil dispute is not relevant to decide the case. The very case of the accused is that the complainant's party has trespassed into their property and was interfering with their right to possess. They had already lodged a complaint before the police. The police had stopped the misadventure in the morning. In spite of this, we find the investigating officer not caring to ascertain the nature Crl.Appeal No.1134/06 16 of the dispute or even what had taken place on that morning, admittedly, between the parties. When we approach the evidence of PW1, these inadequacies do disturb us very much. 22. PW1 in Ext.P1 statement appears to have advanced a totally different version as to how the incident started. According to him, in Ext.P1, he, along with PW2 and deceased George, were walking along the pathway when the accused wrongfully restrained them. But, on oath, PW1 makes a volte- face and asserts that this was not how the incident took place. He was not restrained at all. He was available in his house nearby along with PW4, a worker and his wife PW3. He heard the commotion which had taken place between accused 1 and 2 on the one hand and PW2 and the deceased on the other at the scene of the crime. It is only then, he asserts now on the oath, that he went to the scene of the occurrence. Inherently and on all probabilities, this transformation in the case of PW1 about the cause for his presence at the scene of the crime must disturb a prudent mind. More so, in the facts of this case, where the accused has a specific case that PW1, along with the deceased, PW2 and others, were mounting an attack and Crl.Appeal No.1134/06 17 making a transgression into the legitimate possession of the 2nd accused over an item of property. 23. The prosecution attempts to rely on Ext.P1 to offer support and corroboration for the oral evidence of PW1. It is true that there is some time gap between registration of Ext.P1 (a) F.I.R at 11 p.m on 21/08/1999 and receipt of Ext.P1(a) F.I.R by court on 23/08/1999 at 10.30 a.m. This gap of time is not satisfactorily explained, it is urged. Of course, we note that 22/08/1999 was a holiday/Sunday. But the obligation under Section 157 Cr.P.C to forward the F.I.R to the court promptly is not, in any way, obliterated or reduced merely because the intervening day happens to be a Sunday. We should not be understood to lay down a rigid proposition that the said delay in the F.I.R reaching the court would be fatal to the prosecution in every case. The nature, extent and the circumstances of the delay will have to be considered very carefully. We are unable to agree that the mere fact that the F.I.R reached the court only on the next working day is sufficient to deliver any advantage to the accused in this case. 24. But, we find merit in the contention of the learned Crl.Appeal No.1134/06 18 counsel for the respondents that the version in Ext.P1 cannot inherently afford satisfaction. We have already adverted to the transformation in the case of PW1 as to how he was present at the scene of the crime. Ext.P1 is found to contain a different version than what PW1 had advanced before court. We find one more very crucial inadequacy in Ext.P1 F.I.S. It is the common case that, on that morning, there was an incident and the police had come there to intervene and to stop further work in the property. Significantly and crucially, this aspect was not revealed by PW1 in Ext.P1 before the police. PW1 was only reiterating facts to the police who had come to the scene on that morning. If Ext.P1 were genuine and lodged promptly without forethought and manipulation, it is improbable, nay impossible that PW1 would not have referred to the visit of the police to the scene of the crime on that very morning. To this extent, Ext.P1 does not offer inspiration to us. 25. Relying on the oral evidence of PW1, a contention was raised by the learned counsel for the respondents that even going by the version of PW1, this is not the real F.I.Statement. We do note that PW1 had made such a statement on oath. Crl.Appeal No.1134/06 19 According to him, in the signed statement that he gave to the police he had admitted that both the accused had suffered injuries. That statement, according to PW1, was read over to him and he had only thereafter signed the same. But, significantly, Ext.P1 does not contain any such explanation for the injuries on the accused. Not only that even the 161 statements of PW1 do not reveal that he had stated to the police that the accused had suffered injuries. This was brought out in the form of omission during the cross-examination of PW1. The accused had admittedly suffered injuries in the course of the same incident. PW1 states that in the F.I.Statement lodged by him, he had passed on that information to the police. Ext.P1 does not contain the same. In these circumstances, even if we do not accept that the real F.I.Statement must have been a different one, it cannot be lost sight of, that