Case: Kuriakose Vs. State of Kerala

very close relations. The High Court has further held that the existence of pathway used by villagers along the bund cannot be accepted in view of the clear evidence given on behalf of the prosecution. In this connection, the High Court has referred to the evidence of PW 4. Although PW 4 was declared hostile, the said PW 4 stated that there was no pathway along the cultivated area and there was only a ridge. So far as the recovery of knives with which the injuries were inflicted is concerned, the High Court has indicated that there was no sugg estion in the cross-examination of the Sub- Inspector, PW 10, about non-recovery of said knives. The High Court has also come to the finding that almost immediately after the occurrence, statement was made by PW 2 and the prosecution had also produced the first information report before the Court and the said first information report was also filed in the Magistrates Court. The High Court has held that Ext. P-1 is a genuine document and the circumstances under which it was recorded were properly explained with reference to the documentary and oral evidence. 9. Coming to the conclusion of right to private defence of the accused, the High Court has observed that in the statement under Section 313 Criminal Procedure Code, no plea of right to private defence had been taken by any of the accused. The High Court has held that there was no mischief committed by either of the deceased for which there was any occasion to exercise right of private defence and as there was no customary right of pathway which might amount to mischief such plea of self-defence was not at all acceptable. The High Court has further held that even if there was any customary right of pathway, there was no occasi on to inflict knife injuries on vital pans of the body to cause instantaneous death of both the deceased for an alleged interference with a right of pathway, when admittedly, the deceased Varkey and Chacko had no weapons with them. In the aforesaid facts, there was no occasion for any threat to the person or to the property justifying stabbing the deceased to death. The High Court has, therefore, held that the judgment of the learned Sessions Judge was completely against t he weight of the evidence and was perverse. Accordingly, the High Court set aside the said judgment and convicted both the accused under Section 302 IPC and passed sentence to undergo rigorous imprisonment for life against both of them. 10. The learned counsel for the appellant has reiterated the arguments which were advanced at the hearing of the appeal before the High Court. It has been sought to be contended that not only the right of pathway was obstructed by the deceased and their associates but they also assaulted both the accused. It was only on such assault that there was retaliation by the accused for which the said two persons had died. It has been contended that in exercise of right to self defence if knives were used to save the lives of the accused no exception should be taken. It was riot possible to weigh in golden scales the exact force which was required to be applied by way of right of self-defence. If in such a case, the deceased had suffered injuries on vital parts which were not intended, the accused cannot be held to be guilty for an offence under Section 302 IPC. It has been contended that in any event in such a case, the conviction under Section 302 was not warranted and at best if the accused had exceeded the right of private defence, the conviction under Section 304 IPC could have been awarded. The learned counsel has, therefore, submitted that the decision of the High Court is not proper particularly when some features in the case of the prosecution were not accepted fully by the learned Sessions Judge by indicating cogent reasons. The learned counsel has submitted that although the judgment passed by the learned Sessions Judge may not be a well-written judgment for which criticism had been advanced at the hearing of the appeal, it cannot be held that the points indicated by the learned Sessions Judge could not and did not warrant an order of acquittal11. After giving our anxious consideration to the facts and circumstances of the case and the materials and evidences adduced in the case, it appears to us that there are clinching evidences to establish the prosecution case. In our view, the High Court has given very cog ent reasons as to why the evidences of PWs 1, 2 and 3 should be accepted. PW 2 is an injured witness who made statement at the hospital shortly after the incident when he was taken for treatment. His evidence gets corroborated by the evidences given b y the other witnesses. The reasons advanced by the learned Sessions Judge for discarding those evidences do not stand scrutiny as rightly held by the High Court. It is not necessary to consider about the incidents happening on the previous night. If the murderous assault by the accused is established by clear and clinching evidences of the eyewitnesses, it will not be necessary to investigate the motive behind such commission of offence. In our view, the High Court is wholly justified in holding that the case of right to self-defence cannot be accepted. The accused did not plead any right to self-defence. On the contrary, they simply stated that they were assaulted and out of fear for life they escaped from the place of occurrence. That apart, both the deceased were unarmed and serious injuries were inflicted with knives on the vital parts of the bodies of the deceased by the accused persons. The nature of such injuries negatives any just plea for right to self-defence. Accordingly existence of customary right of way need not be considered in the facts of the case.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6. From the facts and circumstances of the case and the evidences adduced, it transpires that accused 1 had agricultural property to the north of the property of the deceased Varkey and Chacko. There is a bund running from south to north along the agricultural field in question and such bund is used by cultivators. At the time of the incident, Pappu, nephew of Varkey, was also present near the house of Varkey. PW 2 is Varkeys son and Chacko, the brother of Varkey had also come to the house of Varkey and proceeded to the fields although he had a separate residence of his own. The learned Sessions Judge inter alia held that the kni ves which were used for the murder of the deceased, (MO 2 and 3) stated to have been recovered by the police did not contain any bloodstain on chemical examination. It was held by the learned Sessions Judge that the first information statemen t was shrouded in suspicion and the said information report was not the one which had been given by PW 2 at about 9.00 a.m. in the Medical College Hospital. The learned Sessions Judge had indicated that the failure to account for further developme nts on the basis of the intimation given by the Medical Officer PW 5 who examined the injured witness PW 2 was unusual. It was further observed that the conduct of the Sub Inspector who although got the information about the murder, proceeded to the hospital and not to the scene of occurrence was also unusual. According to the learned Sessions Judge, the evidence of PW 1, a resident of Trichur and stated to be present at the place of occurrence, also did not ins pire confidence. According to the learned Sessions Judge, the evidence of PW 3 was unsatisfactory because he had omitted to mention before the police about PW 2 falling down on the eastern side of bund and having been stabbed on the left side of the chest. According to the learned Sessions Judge, PW 2 was an interested witness. In that view of the matter, the learned Sessions Judge was of the view that the prosecution case was not established and he acquitted both the accused7.It w as contended on behalf of the accused that accused 1 admittedly had bananaplantation beyond the field of Varkey. He had therefore occasion to proceedtowardshis cultivated land. It was contended that the existence of bund was beyond any dispute. Such bund was being used by the cultivators as a passage to go to their respective fields and the people as of right used to go along the bund. The deceased had no right to obstruct such movement along the bund. It was sought to be contended o n behalf of the accused that conspiracy was hatched on the previous night against the accused and Varkey obstructed accused 1 from going to his field. On such obstruction, accused 1 tried to assert the customary right of way which led to a scuffle and then his son, accused 2, had rushed to the spot. If due to such scuffle, the said two accused persons had exercised the right ofe and both the deceased had died as a result of such exercise of right of, no conviction was warranted against the accused persons. It was also contended that there was no reason for both the deceased Varkey and Chacko to go to the field early morning to see to the watering of the field because the key of the pump house had not been found near the area of scuffle. It was also contended that it was not natural for ther of the police to go to the hospital instead of going to the place of occurrence when he had received the information of murder. I t was further contended that there had not been proper investigation of the case and a different first information report had been substituted. Hence, the learned Sessions Judge was justified in acquitting the accused persons and there was no occasion to interfere in the appeal9. Coming to the conclusion of right to private defence of the accused, the High Court has observed that in the statement under Section 313 Criminal Procedure Code, no plea of right to private defence had been taken by any of the accused. The High Court has held that there was no mischief committed by either of the deceased for which there was any occasion to exercise right of private defence and as there was no customary right of pathway which might amount to mischief such plea ofe was not at all acceptable. The High Court has further held that even if there was any customary right of pathway, there was no occasi on to inflict knife injuries on vital pans of the body to cause instantaneous death of both the deceased for an alleged interference with a right of pathway, when admittedly, the deceased Varkey and Chacko had no weapons with them. In the aforesaid facts, there was no occasion for any threat to the person or to the property justifying stabbing the deceased to death. The High Court has, therefore, held that the judgment of the learned Sessions Judge was completely against t he weight of the evidence and was perverse. Accordingly, the High Court set aside the said judgment and convicted both the accused under Section 302 IPC and passed sentence to undergo rigorous imprisonment for life against both of them11. After giving our anxious consideration to the facts and circumstances of the case and the materials and evidences adduced in the case, it appears to us that there are clinching evidences to establish the prosecution case. In our view, the High Court has given very cog ent reasons as to why the evidences of PWs 1, 2 and 3 should be accepted. PW 2 is an injured witness who made statement at the hospital shortly after the incident when he was taken for treatment. His evidence gets corroborated by the evidences given b y the other witnesses. The reasons advanced by the learned Sessions Judge for discarding those evidences do not stand scrutiny as rightly held by the High Court. It is not necessary to consider about the incidents happening on the previous night. If the murderous assault by the accused is established by clear and clinching evidences of the eyewitnesses, it will not be necessary to investigate the motive behind such commission of offence. In our view, the High Court is wholly justified in holding that the case of right toe cannot be accepted. The accused did not plead any right to. On the contrary, they simply stated that they were assaulted and out of fear for life they escaped from the place of occurrence. That apart, both the deceased were unarmed and serious injuries were inflicted with knives on the vital parts of the bodies of the deceased by the accused persons. The nature of such injuries negatives any just plea for right to. Accordingly existence of customary right of way need not be considered in the facts of the case. We, therefore, find no justification to interfere with the conviction and sentence passed by the High Court.