A.K. Gangadharan vs State of Kerala

Bolakrishnan, J.—This is an appeal preferred by the accused in Sessions Case No. 15 of 1982 on the file of the Court of Session, Tellicherry. The appellant has been found guilty of the offence punishable u/s 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life. We heard the counsel for the appellant as well as the Public Prosecutor. The incident took place at about mid night on 11-7-1981 inside a toddy shop bearing door No 234 in ward No. IV of Chavasseri Amsom, Uliyil Desom in Cannanore District. This toddy shop was being conducted by Pw1 Valsan Deceased Kakkandi Raman was a helper in the toddy shop and started drinking toddy. Some time later the appellant came there and joined the company of Pw2. The appellant owed some amount to Pw2. At about 11.00 p.m. there was a wordy quarrel between the appellant and PW2 regarding the non payment of this amount. Pw2 dealt a blow on the face of the appellant. The appellant then took out a knife and placed it on the desk and warned Pw2 that he would make use of the same, if he was irritated further. Pws 1 and 3 interfered in the matter and pacified both of them. It was getting late in the night and Pws 1 and 3 requested them to leave the toddy shop. They did not accede to their request. Deceased Raman had gone to his house for taking bath. He returned to the toddy shop at about 12.00 O''clock in the night. Seeing the appellant and Pw2 still sitting in the toddy shop, he asked them to go out so that he might close the shop. The toddy shop had two rooms and the northern room was being used for residential purposes and the sale was conducted in the southern room. When the deceased asked the appellant and Pw2 to go out of the room Pws land 3 were standing outside and talking. Deceased Raman called Pw3. Appellant asked the deceased why he was calling Pw3. Deceased replied that Pw3 was his own man. Then Pws 1 and 3 heard something falling on the southern cadjan screen. They suddenly came to the southern room and saw the deceased falling to a mat. Deceased caned out (Mano I was cheated). They saw an injury on the chest of the deceased. He was profusely bleeding. Appellant and Pw2 were seen running away from the scene of occurrence. They rushed to Pws 4 and 5. Pw4 is the brother of deceased Raman. Pws 4 and 5 came to the toddy shop. They found that deceased Raman had already breathed his last. While they were talking about the incident, they saw the appellant coming back to the shop. On seeing Pw4 Anandan, appellant took to his heels. Pws 1 and 3 to 5 chased him. As the appellant reached about 100 metres away from the scene of occurrence, he hit on a stone and fell down. They caught hold of him and wrested the knife from him. They tied him with the dhothi he was wearing. The appellant was produced before the police.

PW1 lodged Ext. P1 first information. PW16 held Ext. P3 inquest over the dead body of deceased Raman. The body was sent for post mortem examination. PW16 also questioned PWs 3 and 4 He also recovered Mol knife from the toddy shop under Ext. P2 mahazar attested by PW2. M02 to 5 were also recovered from the scene of occurrence. The investigation was thereafter taken over by PW18. The appellant gave Ext. P13 statement before the police and on the basis of that a crime was registered against PW4, 5 and others. PW 9 conducted autopsy and Ext. P4 is the post mortem certificate. PW18 completed the investigation and laid the chargesheet.

On the side of the prosecution PWs 1 to 18 were examined and Exts. P1 to P15 and MOs 1 to 15 were marked The appellant was questioned lander section 313 of the Code of Criminal Procedure and was given an opportunity to explain the incriminating circumstances appearing in the evidence against him. He gave a statement to the following effect: On 11-7-1981 at about 9 O''clock in the night he was going to his wife''s house On his way he met PW2 Govindan. Both of them went to the toddy shop of PW1. Then deceased Raman, PWs 3 to 5 and one Kakkandi Bhaskaran came to the toddy shop. There were sticks in the hands of deceased. PW4 and kakkandi Bhaskaran. Deceased Raman dealt blow on his head others also dealt blows on his body with the sticks. He fell on the verandah of the toddy shop Deceased Raman kicked him at that time. There was fracture on his right leg. Appellant cried out and thereupon PW2 waved his knife and ran away immediately. Then all of them tied his hands and legs and was produced before the police in a jeep. On the next day the Sub Inspector of Police came. No statement was recorded from him. Two local leaders of Marxist Party came to the police station and asked him about the incident He told them that PW2 had stabbed and that he was innocent. They threatened him that he would be buried alive if this fact was spoken to the police. The Assistant Superintendent of police came to the police station and at his instance he was removed to the Mattannur Government Hospital. He was formerly a worker of the Marxist Party and he resigned from that party and joined the B. J. P. He was falsely implicated in this case at the instance of the members of the Marxist Party.

The fact that deceased Kakkandi Raman died on the mid night of 11-7-1981 in the todday shop of PW1 is not disputed. The dead body of deceased was removed to the Government Hospital, Mattannur where it was examined by PW9. One external ante mortem injury was found on the body. The injury was on the left side of the chest, 9 c.m. below the collar bone and IT directed downwards and medially. The wound was about 7 cm. long and 2.5 cm. broad. On further probing it was found that the left lung was partially collapsed. There was a 5 cm. long incised wound on the medial aspect of the left lobe of the lung. Pw9 deposed that the injury found on the body of the deceased Raman was sufficient in the ordinary course of nature to cause death. The cause of death was haemorrhage due to injury to the Heart and lung.

The prosecution mainly relied on the evidence of PWs 1 to 3. PWl is the shop owner and PW3 is his friend. As already stated, the incident happened inside the toddy shop. PW2 and the appellant were together in the toddy shop till about mid night, PW2 came to the shop at about 9 p.m. and consumed some toddy and according to him the appellant came there at a time when he was about to leave the toddy shop. Appellant requested him to keep company. Though PW2 initially refused, the appellant insisted and they both remained in the toddy shop till about mid night. His evidence further shows that the deceased came back by midnight and wanted them to quit since the shop had to be closed. He also called PW3 and when the deceased refused to go he was pushed out. It was at that time that the appellant stabbed the deceased as a result of which he fell down with the bleeding injury. PW1 also claims to have seen the appellant stabbing the deceased. PW2 who was behind PW1 has not seen the stab. All of them saw the deceased falling down with the injury and the appellant escaping with the weapon. The learned counsel for the appellant contended that the evidence of PW1 cannot be accepted as he has prevaricated his earlier statements. It was also contended on behalf of the appellant that he was beaten by the deceased on his head and he sustained an injury on the left parietal region of his head and he had reasonable apprehension of danger to his life and therefore he stabbed the deceased. It is true that the appellant has taken inconsistent pleas. While questioned u/s 313 of the Code of Criminal Procedure he stated that he was attacked by PW1 and 3 to 5 and others with sticks. He did not admit that he stabbed the deceased. Inspire of this plea of the appellant we have to examine the evidence of the prosecution carefully. On a careful examination of the evidence of the prosecution witnesses, it can be seen that there was a conscious attempt on the part of the prosecution to make an embellished version before the court. In Ext P1 first information statement PW1 only stated that he heard the sound of somebody falling on the cadjan screen and on suddenly coming to the southern room he saw the deceased falling on the mat with bleeding injury. He saw the appellant and PW2 fleeing from the toddy shop. But in the box he deposed that fee saw the appellant stabbing the deceased on his chest. This is clearly contrary to what he had stated in Ext. P1. This change of version on the material and crucial point is to be viewed with great suspicion, of course a mistake or discrepancy an a minor point is of no consequence while appreciating oral evidence of a witness. According to the appellant''s counsel PW1 changed the version only to deprive the appellant of his right of private defence. Any way, the evidence of PW1 can be viewed only with suspicion.

Another main witness for the prosecution is Pw2. Pw2 deposed that he saw the deceased pushing the appellant and the latter falling on the cadjan screen. He further deposed that the appellant took out a knife from his loins and stabbed the deceased on his chest. It was strenuously contended before us that PW2''s evidence cannot be accepted for various reasons. According to the learned counsel for the appellant, Ext. P1 statement did not actually disclose the identity of the assailant. PW1 only stared that he saw the appellant and PW2 running away from the scene of occurrence. The statement of the appellant was only taken some time after Ext. P1 statement. The appellant alleged that he was beaten by PW3 to 5 and others and he sustained serious injuries. On the basis of that information Crime No. 94 of 1981 of Mattannur police station was registered. Ext. P13 is the F. I. R. In Ext P13 first information statement the appellant stated that he was attacked by the deceased, PW4 and 5 and others and at that time PW2 gave him a knife and he waved the knife and it might have resulted in the injury of the deceased. Therefore in Ext. P13 also there was an allegation that PW2 had some complicity in the crime and according to the learned counsel for the appellant PW2 gave evidence at a time he had very serious apprehension that he would also be roped in the murder case. There is some force in this argument. There is only the evidence of PW2 to prove the actual occurrence. If his evidence is considered in the light of the other infirmities in the prosecution, it will be difficult to accept his evidence. As pointed out by the Supreme Court in Hallu and Others Vs. State of Madhya Pradesh, , it is generally not easy to find witnesses on whose testimony implicit reliance can be placed. It is always advisable to test the evidence of witnesses on the anvil of objective circumstances in the case.

The appellant sustained 4 injuries. Injury No. l is a lacerated wound 2.5 cm. bone deep on the left parietal bone. There were two other lacerated wounds and one contusion on the right elbow joint. The prosecution through the evidence of Pws 1 and 3 to 5 attempted to explain these injuries found on the body of the appellant as if they were caused by a fall. These witnesses said that the appellant came back to the toddy shop after the murder and he was chased and caught. In the first place a murderer cannot be expected to come back to the scene of murder shortly after it was committed, because he can naturally expect a crowd hostile to him. Secondly if he was chased and caught normally he would have been roughly handled. None of these witnesses admits any such rough handling. Thirdly even though the doctor examined as Pw 15 said that all the injuries of the appellant could be caused by a fall, we have our own reservations in accepting that version. Injury No. l is on the left parietal region where as the contusion and laceration were on the right elbow and right knee in such positions that if they were the result of fall the fall could only be on the back. Such a fall cannot cause injury No. I. In this connection the evidence of Pw 15 that injury No. 1 could also be by a beating with a stick becomes relevant. In all probability injury No. 1 found on the body of the appellant could have been caused by beating with a stick. This view is further probabilised by the recovery of MO 14 bloodstained stick from the toddy shop. According to the appellant he was beaten by deceased Raman with a stick and under that circumstances the injury was inflicted on the deceased. Pw2 alone is the eye witness to the whole incident. PW l and 3 were not present inside the room when the actual stabbing took place. No implicit reliance can be placed on the evidence of Pw2 especially when the prosecution has suppressed certain material facts. It is a well settled proposition of law that the prosecution should explain the injuries found on the body of the appellant. In Lakshi Singh v. State of Bihar (AIR 1976 S. C. 2263) the Supreme Court explained the law as follows:-

...in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

Here the explanation offered by the prosecution is not at all satisfactory. While giving Ext P1 first information statement, PW1 did not mention that the appellant had fallen near some rocky area and thereby sustained injuries. However, PW1 and PW3 to 5 have deposed that the appellant was chased by them and he fell on rocky surface. PW 15 deposed that the injury could be caused by beating with a stick. The nature of injury also would go to show that most likely the same might have been caused by beating.

The next point that would arise for consideration is whether under such circumstances the appellant is entitled to an acquittal. It cannot be said that the appellant succeeded in proving the plea of private defence advanced by him. The right of self defence need not be specifically pleaded. A person taking the plea of right of private defence is not required to call evidence on his side but he can establish that pica by reference to the circumstance transpiring from the prosecution evidence itself. If it is proved that the prosecution has suppressed certain material facts, with the sole idea to deprive the accused of his right of self defence, then also he is entitled to get the benefit of that doubt. Even if the accused fails to substantiate the plea of self defence set up by him, he is entitled to be acquitted it upon such consideration of the evidence as a whole a reasonable doubt is created in the mind of the Court whether the accused person is or is not entitled to the benefit of the general exception. The test is not whether the accused has proved beyond all reasonable doubt that he comes within any exception to the provisions of Penal Code, but whether in setting up-his defence he has established a reasonable doubt in the case of the prosecution and has thereby earned his right to an acquittal. When there is an element of genuine doubt, there must be an acquittal as a matter of right and not as a matter of grace or favour.

A similar question came into prominence in K.M. Nanavati Vs. State of Maharashtra, . His Lordship Subba Rao J. as he then was, quoted the observations of Viscount Sankey L. C. in Wolmington v. Director of Public Prosecutions (1935 A. C. 462 at p. 481)

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner''s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

Following the above dictum the Supreme Court held:

As in England so in India, the prosecution must prove the guilt of the accused, i.e. it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused committed the offences he is entitled to the benefit of doubt.

Applying the aforesaid principle of law to the case in hand we are inclined to observe that the evidence adduced by the prosecution does not satisfactorily establish the guilt of the accused. There was an attempt on the part of the prosecution to suppress some material fact to deprive the appellant of his right of self defence. The evidence of PW2 as such cannot be accepted. The recovery of MO 14 stick also casts doubt about the genesis and origin of the prosecution case. Both PW1 and PW2 deposed that the deceased pushed the appellant forcefully and the latter fell on the cadjan screen. It is most likely that the appellant was also beaten by the deceased. At any rate the prosecution case does not rule out such a possible situation, creating in the mind of the appellant a reasonable apprehension of death or grievous hurt at the hands of the deceased. The benefit of such a possible situation should undoubtedly go to the appellant, particularly when there is no satisfactory evidence on the prosecution to show that the occurrence had actually taken place in the manner alleged by the prosecution. We are not prepared to accept the plea that the appellant sustained the injuries by a fall. The non explanation of the injury by the prosecution is a manifest defect in the prosecution case and it shows that the origin and genesis of occurrence has been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come with true version of the occurrence. Hence we set aside the conviction and sentence and hold that the appellant is not guilty. The appellant is acquitted of the charge framed against him u/s 302 of the Indian Penal Code.

The Criminal Appeal is allowed. The appellant be set at liberty forthwith if not required in any other case.