Case: Kuriakose Vs. State of Kerala

Both the said appeals and the revision case arose out of the judgment dated September 16, 1980 passed by the learned Additional Sessions Judge, Kottayam in Sessions Case No. 37 of 1980. By the said judgment, the learned Additional Sessions Judge acquitted both the accused appellants from a charge under Sections 447, 307, 302 and 34 IPC. The State of Kerala preferred the said Criminal Appeal No. 37 of 1981 against the judgment of acquittal and the complainant also moved a revision petition again st the said judgment being Criminal Revision No. 32 of 1981. The High Court allowed the said criminal appeal and convicted both the accused appellants under Section 302 IPC and convicted each of them to suffer rigorous imprisonment for life. In view of the said decision rendered in the appeal, the criminal revision case was disposed of without passing any order. The short facts of the prosecution case are inter alia that 26th January was St. Sebastians day which was celebrated with ju bilation in the locality. PW 1 Poulose, belonged to Vayala near Koodalloor but later on shifted to Trichur after selling his land and winding up his affairs in Vayala. He also came to the said locality on January 26, 1980. The deceased, Varkey had put up an enclosure on the road with an icon of St. Sebastian. The said Varkey and the other deceased Chacko together with PW 1 had been to the church in the evening. Varkey asked the accused 1, Kuriakose, to pay contribution for the sa id enclosure put up by Varkey at about 8.00 p.m. on January 26, 1980. He refused to pay such contribution and made some remarks on which there was an altercation between Varkey and the said accused 1. It is alleged that accused 1 assaulted V arkey on which PW 2, son of Varkey, gave one blow to accused 1. Chacko had given two kicks to the said accused. Accused 1 thereafter left the place threatening the deceased and the others2.The locality in which the deceased and the accused h ad been staying was an area intensely cultivated. The deceased Varkey and the other deceased Chacko who was his brother had lands where cultivation of tapioca and other crops used to be carried out. Beyond the fields of Varkey and Chacko to the north, accused 1 also had agricultural field having banana cultivation. The features and location of the property were exhibited in a plan Ext.. The next morning, namely on January 27, 1980 Varkey and Chacko had been to the field in connection with their cultivation activities. It is the prosecution case that while they were in the field accused 1 accompanied by his son, accused 2, namely Jose Kappen went towards the field of Varkey and Chacko and they came along the property of Varkey and Chacko. Varkey protested to such moving on the property of Varkey and told the accused that there was no way along the said land. The first accused thereafter persisted in walking along that way and challenged Varkey and Chacko. Both the accused who kept knives covered in their sheaths drew them out and accused 1 stabbed Varkey 3 to 4 times.

Reasoning:
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.