Chandran vs State of Kerala

R. Basant, J.—(i) Did the court below err in accepting and acting upon the oral evidence of P.Ws.1 to 3?

(ii) Did the court below err in coming to the conclusion that the appellant/A1 is not entitled to the right of private defence?

(iii) Did the court below err in coming to the conclusion that the appellant is not entitled to the benefit of any reasonable doubt?

These questions are raised before us by Sri.M.K. Damodaran, the learned senior counsel for the appellant in this case. The appellant/A1 faced trial along with two others (A2 and A3). The appellant has been found guilty, convicted and sentenced under Sec.302 for having caused the death of one Roy. He has also been found guilty, convicted and sentenced under Sec.323 IPC for having caused injuries to P.W. 1 Bijesh @ Abbas. He has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/- under Sec.302 IPC.

The prosecution alleged that the appellant had inflicted stab injuries on the deceased in succession with M.Os.1 and 2 weapons. The deceased had allegedly intervened when P.W. 1 was illegally taken to the eastern compound of the house of the appellant and assaulted there. Thereby, the prosecution alleged that the appellant had committed the offences punishable under Secs.302 and 323 IPC. A2 and A3 also faced trial along with the appellant for the same charges. They were found guilty, convicted and sentenced under Sec.323 read with Sec.34 IPC. We are informed that A2 and A3 chose not to challenge the verdict of guilty, conviction and sentence imposed on them. Evidently nothing remains to be executed against A2 and A3 now.

Investigation commenced with the registration of Ext. P1(a) FIR by the local Sub Inspector of Police on the basis of Ext. P1 First Information Statement lodged by P.W. 1. Investigation was completed and final report/charge sheet was filed by P.W. 8 before the learned Magistrate having jurisdiction. The learned Magistrate, after observing all legal formalities, committed the case to the Court of Session. The Court of Session took cognizance of the offences alleged against the accused persons. The accused denied the charges framed against them by the learned Sessions Judge. Thereupon the prosecution examined P.Ws.1 to 8 and proved Exts.P1 to P12. M.Os.1 to 13 were also marked.

The accused persons, in the course of cross-examination of prosecution witnesses and later when examined under Sec.313 Cr.P.C. took up a fairly definite and specific stand. According to the appellant/A1, P.W.1 and the deceased were not victims of aggression; but they were aggressors. They had allegedly, along with P.W. 2 and C.W.3 Unni trespassed into the house of A1. They had assaulted D.W.3, the wife of A1. Hearing the commotion, local persons had also reached the scene of the occurrence. In the melee, deceased must have suffered the fatal injuries. This, in short, is the fairly definite stand taken by the appellant before the trial court.

The appellant entered upon defence. He examined D.Ws.1 to 5. Exts.D1 to D10 were also marked.

The learned Sessions Judge, on an anxious evaluation of all the relevant inputs, came to the conclusion that the oral evidence of P.Ws.1 to 3 can safely be relied upon. Their evidence is supported by various other circumstances available in the case, it was held. The learned Sessions Judge, in these circumstances, proceeded to pass the impugned judgment holding the appellant guilty of offences punishable under Secs.302 and 323 IPC.

Before us the learned senior counsel for the appellant Sri.M.K. Damodaran and Sri. Roy Thomas, the learned Public Prosecutor, have advanced their arguments. The learned counsel for the appellant contends that the learned Sessions Judge had erred grossly in accepting and acting upon the oral evidence of P.Ws.1 to 3. Their evidence is unconvincing. The same should have been discarded. At any rate, the benefit of doubt ought to have been conceded to the appellant/A1. The totality of circumstances must have instilled in the court the satisfaction that the deceased and P.W. 1 were the aggressors and the appellant and the other members of his family were victims of aggression. The version of the defence competes in probabilities eminently with the version of the prosecution. The version of the defence that the deceased must have suffered injuries in the course of the melee that took place at the hands of the local persons who had come to the scene of the occurrence must have been accepted as more probable by the learned Sessions Judge, contends the learned counsel for the appellant.

The learned Public Prosecutor, on the contrary, contends that the court below has not committed any error in accepting and acting upon the oral evidence of P.Ws.1 to 3. The defence has totally failed in discharging even the lesser burden on the shoulders of the defence to prove the general exception to criminality (the right of private defence) which they wanted to set up in this case. At any rate, there is absolutely no scope for any reasonable doubt. The impugned judgment may be upheld and this appeal may be dismissed, contends the learned Public Prosecutor.

We have considered all the relevant circumstances. An appellate judgment is; is intended to be read and ought to be reckoned as rendered in continuation of the impugned judgment of the trial court. In that view of the matter, we deem it unnecessary to embark on an attempt to re-narrate the oral and documentary evidence placed before the learned Sessions Judge. We may hasten to observe that the learned counsel have meticulously and in detail taken us through the oral evidence of P.Ws.1 to 8 and D.Ws.1 to 5. We have also been taken in detail through the contents of Exts.P1 to P12 and Exts.D1 to D10. Our attention has also been drawn to the charges framed by the learned Sessions Judge against the accused persons and the answers given by the accused persons in the course of their examination under Sec.313 Cr.P.C. We shall proceed to refer to the relevant materials specifically, if necessary, in the course of the discussions that we propose to undertake.

It will be apposite at the very outset to narrate the gist of the version of the prosecution and the defence.

P.W. 1''s mother is the sister of P.W. 3. P.W. 3 is an invalid person. He is the husband of PW4. PW4 was a widow, who got remarried to PW3. PW2 is a paternal first cousin of PW1. PW1 resides close to the house of the 1st accused. They have their residences in an area inhabited by fishermen. Houses are available in close proximity in that area. According to the prosecution, the 1st accused had indecently interacted with PW4. PW4 raised a complaint before PW3. Nothing effective followed that complaint. She then allegedly complained to the father of PW1 through the mother of PW1. Father of PW1 allegedly questioned the 1st accused. The 1st accused allegedly assaulted the father of PW1. That incident took place about a month prior to the date of the incident in this case, ie. 07.08.2002. PW1 was not available in the locality when that incident took place. He returned to his native place from the place of his work on the date of the incident. He allegedly questioned the 1st accused at about 5 p.m on 07.08.2002. There was an exchange of words between PW1 and the 1st accused. The 1st accused allegedly returned to his house. On that evening at about 6.30 p.m there was yet another incident and that incident allegedly took place on the road lying to the west of the house of the 1st accused. The mother of PW1 allegedly suffered injuries in that incident. She was taken to the hospital.

It is in this context that the incident in this case took place at about 8.15 p.m. According to the prosecution, PW1 was blissfully ignorant of the incident which took place at about 6.30 p.m. He had allegedly come to his house on that night along with deceased Roy, PW2 and CW3. He allegedly wanted to advance some money to PW2 and that was the purpose why all of them allegedly came to the house of PW1. PW3 has his shop near the house of PW1. There, PW1 allegedly came to know for the first time that his mother has sustained injuries in an incident that took place earlier at about 6.30 p.m. Hearing this, PW1 got agitated. He allegedly proceeded southwards and came near the house of the 1st accused. He allegedly showered abuses at the 1st accused.

At this juncture, the 1st accused, who was present along with accused 2 and 3, allegedly caught hold of PW1 and took him to the courtyard on the eastern side of the house of the 1st accused. There, accused 1 to 3 allegedly assaulted PW1 continuously. On seeing this, PW2 and CW3 allegedly went to the rescue of PW1 to the eastern courtyard of the house of the 1st accused. It is there, it is alleged, that the incident had taken place. The 1st accused, when the incident started, did not admittedly have any weapon with him. He, in the course of the incident, allegedly went to his house and got himself armed with Mo. 1. He allegedly inflicted multiple injuries on the deceased. In the course of that incident, deceased was able to dispossess the 1st accused and Mo. 1 weapon was knocked out of his hand. The 1st accused allegedly took out Mo. 2 weapon from his house and inflicted further injuries on deceased Roy. Deceased Roy allegedly ran out towards the road on the western side - through the house of the 1st accused. He fell by the side of the road from where he was allegedly removed to the hospital. At the hospital he was declared dead.

We shall now refer to the fairly specific case advanced by the 1st accused. According to the 1st accused, there was admittedly altercation between him and PW1 at about 5 p.m as alleged by PW1. He further admitted that there was a second incident that took place at about 6.30 p.m on the road on the western side of the house of the 1st accused. According to the appellant, PW1 was also very much involved in that incident. In that incident, Ext.D5 F.I statement was lodged by the mother of PW1 (who was an injured in that case). Ext. D4 F.I.R was registered on the basis of Ext. D5, and Ext. D3 final report was submitted by the Investigating Officer after due investigation.

According to the defence, after that incident which took place at about 6.30 p.m, PW1 had come to the scene along with PW2, deceased Roy and CW3 Unni. It was not a case of innocuous and innocent arrival of these persons there. They wanted to attack the 1st appellant and his house because of the earlier incidents that had taken place. They forced open the door of the house of the 1st appellant. DW3, the wife of the 1st appellant, and her children alone were available in the house. DW3 was attacked. She made a hue and cry. Several neighbours rushed to the scene. There was a melee, in the course of which the deceased must have suffered the injuries. The appellant, as it is often done, did not evidently muster sufficient courage to specifically admit his presence at the scene of the crime at the relevant time. He took up a defence that the deceased must have suffered the injuries at the hands of persons who had come to the scene of the crime on coming to know of the incident. He did not however specifically raise a contention that he was not one among many who had reached the scene of the crime. DW3 had allegedly suffered injuries. She was initially attended to by DW1, the medical officer. Ext. D7 wound certificate was issued by her. She was referred to DW4. DW3 continued treatment under DW4. She was an inpatient for about 22 days. She was discharged thereafter. In short, according to the appellant, it was not a case where PW1 was taken away by force by accused 1 to 3 to the eastern courtyard and assaulted there. It was specifically a case of PW1, the deceased, PW2 and CW3 Unni attacking the house of the appellant.

The prosecution primarily relies on the oral evidence of PWs 1 to 3. The prosecution relies on the evidence of motive for the 1st accused against PW1. The prosecution further relies on recovery of MOs.1 and 2 under Exts.P8 and P9 on the basis of Ext. P8(a) and P9(a) information furnished by the appellant to the Investigating Officer PW8 in the course of interrogation in custody. It is the case of the prosecution that the evidence of motive read along with the oral evidence tendered by PWs 1 to 3 and the recovery of MOs.1 and 2 do eminently establish the indictment against the appellant.

Before we proceed to consider the evidence in this case and the challenge raised, we think it will be appropriate to refer to the law on the point. We deem it unnecessary to refer specifically to any precedents. It would be sufficient if we remind ourselves of the law.

The burden in a criminal trial always rests on the shoulders of the prosecution squarely and heavily to prove the indictment against the accused beyond doubt. Whatever be the nature of evidence relied on by the prosecution and the nature of defence which an indictee sets up in the trial, this burden continues from the beginning to the end of a criminal trial to rest on the shoulders of the prosecution.

Section 105 of the Evidence Act mandates that the adjudicator can start with the presumption that there are no circumstances bringing the case within the sweep of any of the general exceptions to criminality (right of private defence in this case). This of course is only a rebuttable presumption of fact. The burden to rebut that presumption is placed on the shoulders of the indictee.

It is not as though the indictee must adduce evidence on his side to establish the defence of any general exception. He can rely on the broad probabilities emerging from the case of the prosecution. He can also rely on answers brought out in the course of cross examination of prosecution witnesses. He can further rely on the cogent explanations offered in the course of Section 313 Cr.P.C examination by the indictee himself. The indictee can also rely on defence evidence adduced by him if any. We need only note that it is not invariable that the indictee must adduce evidence in support of his plea for protection on any one of the general exceptions.

While the burden on the prosecution is to prove its case to the hilt - beyond reasonable doubt, the burden on the accused is not akin to that initial burden on the prosecution. The accused need discharge his burden by the test of balance of probabilities as in a civil case. In contradistinction to the burden on the prosecution, this burden is much inferior in nature and character. Suffice it to say that the accused must discharge his burden u/s 105 of the Evidence Act at least by the inferior standards prescribed by law.

An accused who takes up the defence of private defence does not in any way help the prosecution to plead mitigation of their burden to prove the indictment beyond reasonable doubt. The prosecution must prove all ingredients of the offence alleged against the indictee beyond reasonable doubt. In the course of an unsuccessful attempt to establish his claim for any of the general exceptions, the indictee, though he may not fully succeed in establishing the defence set up by him, may still succeed in generating a reasonable doubt on any one of the vital ingredients of the offence alleged against the indictee. In that case also, the indictee will be entitled toacquittal, not because the defence of the general exception has been proved, but because in the course of the unsuccessful attempt to establish such defence, he may have succeeded in generating a reasonable doubt about the case of the prosecution. In that event, the accused would be entitled to the benefit of doubt and consequently can justifiably claim an acquittal.

Having thus reminded ourselves about the law, we shall now look at the evidence relied on by the prosecution. First of all we shall refer to the evidence of motive. That there was an altercation between the father of PW1 and the 1st accused about a month prior to the incident is the common case of both sides. Though there is disagreement about the cause of such altercation, the fact of such altercation appears to be admitted by both sides. PW1 was not available in the locality at that time. He reached back on the date of the incident, ie. 07.08.2002. He was evidently perturbed and disturbed. He, on the date of the incident, questioned the 1st accused about that incident between the father of PW1 and the 1st accused. That incident took place at about 5 p.m near the local temple. This is the case of PW1 as well as DW3. That common version can safely be accepted.

That another incident took place later on that date on the road on the western side of the house of 1st accused also appears to be the common case. On that aspect, we have Ext. D5 F.I Statement and Ext. D4 F.I.R and Ext. D3 final report submitted by the Investigating Officer after due investigation. We do not propose to rely on Ext. D4 to come to any specific finding of fact. But the fact remains that in Ext. D5 F.I Statement it is specifically alleged by the injured in Ext. D3 case that PW1 was also available at the scene of the crime when the said incident took place at about 6.30 p.m. Of course the maker of Ext. D5 F.I Statement has not been examined as a witness in court. But the fact that Ext. D5 F.I Statement was lodged; that Ext. D4 F.I.R was registered on the basis of Ext. D5 and that had culminated in the filing of Ext. D3 final report by the police after due investigation is the common case of the prosecution and the defence.

We are not embarking on an endeavour to ascertain the truth of the indictment in Ext. D3. We need only note that after the earlier incident which took place at about 5 p.m, another incident had taken place at about 6.30 p.m near the house of the 1st accused in which incident mother of PW1 had suffered injuries. It is at least the case of the prosecution that PW1 was present when that incident took place. Exts.D3 to D5 are relevant to this extent while we consider the motive set up by the prosecution.

According to the prosecution, PW1 did not know about the second incident that took place at about 6.30 p.m (Ext.D3 incident). He for the first time allegedly came to know of that from PW3. On hearing that, he was extremely perturbed. He allegedly went towards the house of the 1st accused. He stopped at the road and allegedly started showering abuses against the 1st accused. This is the very case of PW1. According to PW1, he was thereafter removed from that spot to the eastern courtyard of the house of the 1st accused by accused 1 to 3 forcibly. This aspect is stoutly denied by the defence. According to the defence, PW1, the deceased, PW2 and CW3 Unni had come to the house of the 1st accused in a mood of retaliation at about 8.15 p.m on that date after PW1 went away from the scene at about 6.30 p.m. This is the crucial difference between the case of the prosecution and the case of the defence on the question of motive and the commencement of the incident. It is important that a court, attempting to ascertain the genesis of the incident, endeavours to ascertain the truth on this crucial aspect. A meaningful enquiry into the commencement, genesis and culmination of the incident, according to us, must certainly start from this plank.

Significantly PW3 in his version before the police did not at all advance a case that PW1, the deceased, PW2 and CW3 Unni had come to his shop prior to the incident. This version of PW3 before the police rhymes well with the version of the defence that PW1 along with the deceased and others had gone directly to the house of the 1st accused. We must in this case note that the version of the prosecution about the motive and the commencement of the incident does not augur well with broad probabilities. The crucial omissions/Ext.D2 contradiction marked in the course of cross examination of PW3 is, according to us, of crucial and vital relevance.

Motive is established in the sense that there was a strain between PW1 and the 1st accused. But on the question of precise motive we entertain serious doubt as to whether the version advanced by the prosecution can safely be accepted.

We now come to the ocular account of the incident tendered by PWs 1 to 3. PW1 is certainly an interested person. PW2 is the paternal cousin of PW1. PW3 is the uncle (mother''s brother) of PW1. PWs 1 to 3 can certainly be said to belong to a group interested in PW1 and against the appellant. On that aspect there can be no doubt. Of course, interestedness of witnesses is by itself no reason to reject their evidence. But no court can afford to ignore the reality that there were other neighbours close to the scene of occurrence who could have afforded independent evidence to support the prosecution version about the incident proper or at least to support the oral evidence of PWs 1 to 3 of what they allegedly perceived and experienced. It is significant to note that the prosecution had not chosen to examine any disinterested witnesses. PWs 1 to 4, who are the only non official witnesses examined, all come from the same stock, we do note.

PW1 claims that he was forcibly removed by accused 1 to 3 from the spot where he was standing and showering abuses at the 1st accused. PW2, deceased, and CW3 were at that time allegedly sitting in the shop of PW3 and drinking water. PW2, deceased, or CW3 did not immediately intervene to stop PW1, going by the case of the prosecution. PW1 was allegedly forcibly removed by accused 1 to 3 to the eastern (rear) courtyard of the house of the 1st accused. Ext. P2 scene plan read along with Ext. P6 scene mahazar gives a clear idea about the scene. According to PW1, he was badly assaulted by accused 1 to 3. He had allegedly suffered serious injuries obliging him to continue treatment as an inpatient at the hospital for a fairly long period - about a month. Significantly we do not get any medical evidence in support of this case of PW1. In fact PW8 Investigating Officer frankly conceded that he could not trace the doctor who allegedly had treated PW1. No documents whatsoever were produced in support of this theory of PW1 that he was hospitalised. What we want to note in this context is that the precise version of PWs 1 to 3 about the commencement of the incident - by accused 1 to 3 assaulting PW1, is not supported by any medical evidence adduced by the prosecution. Of course the allegation is only u/s 323 I.P.C. It is not invariable that there must be physical injury. But in the light of the nature of attack which PW1 claims to have suffered and in the light of the assertion of PW1 that he was hospitalised for a long period because of the injury, the failure of the prosecution to produce medical evidence to support that version of PW1 creates initial doubt, reservation and suspicion against the version of PW1 about the precise commencement of the incident.

The house of the 1st accused opens to the road on the western side. Ext. P6 scene mahazar makes the position clear. It is the case of the defence that PW1, the deceased and the other miscreants pushed open the door of the house and entered from the west. According to the prosecution, PW1 was taken to the rear courtyard not through the house, but by the circuitous route. Probabilities cannot be ignored on this aspect. We do further take note of the circumstance that there were tell tale indications of a violent incident having taken place in the house and on the eastern courtyard. The flower pots were seen damaged. The sticks were found scattered. If we go by the case of the prosecution, we do not get any satisfactory explanation for these observations reported by the Investigating Officer in Ext. P6 scene mahazar. It is of relevance to note that blood was found on the eastern door of the house of the 1st accused suggesting the happening of some incident inside the house. The learned Prosecutor contends that presence of blood on the outer door is not inconsistent that the incident having taken place on the eastern courtyard.

Be that as it may, we have specific indications to suggest that the deceased was present inside the house of the 1st accused. That is the admitted case of the prosecution. Blood from his person was found on the eastern door of the house of the 1st accused. How did he enter the house of the 1st accused? According to the defence, as already spoken, he along with PW1 had threateningly entered the house of the 1st accused. According to the prosecution, when PW1 was brought to the eastern courtyard, PW2 and deceased along with CW3 also reached that courtyard taking the circuitous route. From there, in the course of the incident when the 1st accused came into the house and attacked the deceased with Mo. 1 and later with Mo. 2, the deceased tried to run away to safety - but through the house of the 1st accused. Inherently and on probabilities this version of the prosecution does not inspire our confidence. If the deceased had come to the eastern courtyard taking the circuitous route, he is unlikely to have proceeded into the house of the 1st accused in his quest to run for safety. Inherently and on broad probabilities the admitted presence of the deceased inside the house of the 1st accused and the presence of blood marks inside the house, rhyme better with the case of the defence and not with that of the prosecution.

We now come to the controversy about the 1st accused having wielded two weapons - MOs.1 and 2, in succession against the deceased. When the incident started admittedly the 1st accused was unarmed. In the course of the incident it is said by the prosecution that the 1st accused ran into the house and armed himself with MO.1. He allegedly inflicted multiple injuries on the deceased with Mo. 1. In Ext. P1 significantly there is no case at all that the deceased was wielding two weapons in succession. However, in the course of trial such a version is seen advanced.

The learned counsel for the appellant contends that this introduction of a theory that two weapons were used by the 1st accused was with the specific purpose of explaining the nature of injuries found on the person of the deceased. The prosecution did not initially have a case at all that the appellant had used two weapons to cause injuries on the deceased. In Ext. P1 such a theory is significantly absent. In fact, there is assertion and reiteration that all the injuries were inflicted with one weapon. The alleged use of the second weapon is a significant omission. It is a contradiction also when we consider Ext. P1.

The prosecution appears to advance a version that PWs 1 and 2 had given such a statement before the Investigating Officer in the course of investigation that two weapons were used. We cannot have direct access to the case diary statement. We note that the case diary statements produced by the prosecution before the court does not include any further statement of PW1 before the Investigating Officer in addition to Ext. P1. PW2 was so questioned. No contradictions have been marked when PW2 was cross examined.

The learned counsel for the appellant contends that crucial significance cannot be attached to the non marking of any case diary contradictions in the course of cross examination of PW2. The Investigating Officer could at any time prior to the trial have produced an alleged case diary statement of PW2. The learned counsel points out that convincing indications otherwise are available in the case.

The learned defence counsel first of all points out the version in Ext. P7 remand report. In Ext. P7 remand report significantly there is no statement whatsoever that two weapons were used by the appellant for infliction of injuries on the deceased. The learned counsel for the appellant points out that according to the prosecution the arrest was effected on 15.08.2002. It is the case of the prosecution that the appellant gave Ext. P8(a) information to the Investigating Officer on 15.08.2002 itself. However, recovery of Mo. 1 weapon is surprisingly not effected before the appellant is produced before the learned Magistrate on 15.08.2002 itself. Why was the appellant produced before the Magistrate on 15.08.2002 itself before the crucial part of the investigation - recovery of MO.1 weapon on the basis of Ext. P8(a) information, was done by the Investigating Officer? No satisfactory explanations are offered. The arrest was only at 5 p.m on 15.08.2002 and the Investigating Officer, in law, had time on 16.08.2002 upto 5 p.m to produce the appellant before the learned Magistrate. The hurried production of the appellant before the learned Magistrate without completing the essential investigation must generate reasonable doubt, contends the learned counsel for the appellant.

We note that only on 19.08.2002 the Investigating Officer applied for police custody of the appellant to complete the investigation. That request was made under Ext. D6 report supported by an affidavit. It is crucial to note that a reading of Ext. P7 remand report or Ext. D6 report and affidavit cannot at all show that the Investigating Officer at that stage had any inkling of the use of two weapons for the commission of the crime by the appellant. There is significantly no statement in Ext. P7 or Ext. D6 that two weapons are to be recovered. Information about the concealment of one weapon (Ext.P8(a)) was furnished even before the appellant was produced before the learned Magistrate on 15.08.2002. There is no statement significantly in Ext. P7 or Ext. D6 that probing/questioning has to be done to ascertain and recover the second weapon used for the commission of the crime. We need only observe that the learned counsel for the appellant is eminently justified in advancing a contention that information about the use of a second weapon had not dawned on the Investigating Officer till he submitted Ext. P7 remand report and Ext. D6 report and affidavit. This is to be read along with the crucial absence of such a version in Ext. P1. Not only that such a version is absent in Ext. P1, even on the date of Ext. P7 and Ext.D6 the police did not have such a case of the use of a second weapon, argues the learned counsel for the appellant vehemently. We find force in that contention.

The learned counsel for the appellant submits that the investigator does not appear to have taken a decision as to which weapon can be said to have been used for the commission of the offence at that juncture. That is why recovery was not effected on 15.08.2002 though Ext. P8(a) information was already available with the Investigating Officer. The police wanted to question the medical expert to ascertain the nature of the weapon that was used for the commission of the offence. When PW7 doctor was questioned on 26.08.2002, it dawned on the Investigator that recovery of one weapon is insufficient to explain all the injuries on the deceased. This is evident from the oral evidence of PW7 read along with Ext. P4 postmortem certificate. It became impossible to explain all the injuries on the deceased by recovery of one weapon on the basis of Ext. P8(a) information.

The learned counsel for the appellant contends that at that juncture the use of a second weapon appears to have been introduced into the prosecution case. That is why that version is not available in Exts.P1, P7 or Ext.D6. The police became obliged to introduce such a different version about the use of a second weapon. The prosecution case was shaped and took a different turn at that juncture, points out the learned counsel.

A reading of Ext. P4 postmortem certificate must impress upon the court the tenability of this contention. All the fatal injuries, ie. injuries 1, 2 and 5, could not have been inflicted with Mo. 1 weapon and could have been inflicted only with a weapon of a peculiar shape - a rubber tapper''s knife, ie. Mo. 2. It is hence such a different version was introduced into the prosecution case, contends the learned counsel for the appellant.

The learned counsel for the appellant further contends that the prosecution version on this aspect is shrouded in mystery and dissatisfaction. Injuries 1, 2 and 5 in Ext. P4 can be caused only by a rubber tapper''s knife. That is the specific case of PW7. A perusal of injuries 1, 2 and 5 shows that the injuries have different dimensions also. When PW7 doctor was examined, very surprisingly, Mo. 2 was not specifically put to him. The learned Sessions Judge in the course of the judgment in paragraph 32 opines that this could only have been a mistake. There is absolutely nothing to indicate that Mo. 2 was shown. Instead record was made that Mo. 1 was shown. The learned counsel for the appellant contends that it is possible to conclude that all the 3 injuries 1, 2 and 5 could not have been caused with a weapon like Mo. 2 taking note of the difference in the length of the injuries. Mo. 2 rubber tapper''s knife has a peculiar shape. It is sharp only at the pointed end. It has a boat shaped surface. Either projected end is not sharp. The learned counsel for the appellant contends that the length of the injury, if inflicted with a weapon like Mo. 2, must correspond exactly to the width of the blade of that weapon. The difference in the length of the injuries 1, 2 and 5 could not have been explained by the prosecution and that is why cleverly Mo. 2 was not put to the doctor when he was examined, argues the learned counsel.

The accused did not of course further probe into that aspect. We can certainly not find the accused guilty of any omission on that aspect. In the absence of substantive evidence in chief examination, a cross examiner would not strain to attempt to bring out circumstances more favourable to him in the course of cross examination. We need only mention now at this juncture that the omission to get Mo. 2 identified by PW7 does arouse the worst form of doubts in our mind. The specious explanation that Mo. 2 was really shown though recorded as MO.1 does not commend itself for acceptance at this juncture.

The learned counsel for the appellant contends that proper and efficient investigation in a case like this is essential to afford assurance to the court for the version of the prosecution. Unfortunately in the facts and circumstance of the case such assurance is not forthcoming, points out the counsel. We find merit in this contention. We note that PW1''s evidence that he had suffered injuries and was hospitalised was not properly cross checked by the investigator. We do further note that admittedly DW3 was admitted to the hospital by DW1 for treatment on 08.08.2002 as can be seen from Ext. D7. That she continued in the hospital for a period of about 22 days for treatment of such injuries is evidenced further by the oral evidence tendered by DWs 1 and 4 - both disinterested medical officers. Discharge card Ext. D10 and the wound certificate Ext.D7 clearly show that she had continued as an inpatient till 29.08.2002.

The prosecution cannot now wish away the fact that DW3 was admitted to the hospital with the allegation that she had suffered the injuries on the previous night at her house. At least DWs 1 and 4, Government medical officers, did feel the necessity to admit her and give her treatment as inpatient for a period of 22 days. It is possible as contended by the learned Prosecutor that DWs 1 and 4 were only obliging DW3 unnecessarily. That possibility cannot be ruled out. But better evidence could and ought to have been produced in support of such theory by the prosecution. Case sheet regarding admission and treatment of DW3 the said long period of 22 days must have been available in the hospital. That ought to have been verified. That there are no grievous external injuries do not guarantee that DWs 1 and 4 unnecessarily obliged DW3 by admitting her to the hospital and giving her treatment for 22 days as an inpatient. Nay, what disturbs us is the fact that PW8 appears to have been blissfully ignorant of the fact that DW3, the wife of the 1st accused, who must in all probability have been present at the scene of the crime, had been hospitalised for a long period of 22 days. This inadequacy does disturb us considerably.

Read this inadequacy with the unsatisfactory circumstance of not recovering Mo. 1 on the basis of Ext.P8(a) even though such information was available prior to the premature production of the accused before the learned Magistrate on the night of 15.08.2002. Read this along with the total absence of even a mention in Ext.P7 and Ext. D6 that the prosecution wanted to make an attempt to trace and recover the other weapon used for the crime. All these together does necessarily arouse dissatisfaction, doubts and distrust in our mind against the case of the prosecution.

We have no quarrel with the proposition of law that if evidence of a witness inspires confidence of the court, inadequacy or even indifference of the investigator can be ignored. We will readily do the same also. But the crucial question is whether the evidence of witnesses examined do inspire confidence. In this case, in the light of the version in Ext. P1, in the light of the unsatisfactory medical corroboration for the ocular account of PWs 1 and 2 and the dissatisfaction entertained on probabilities about the commencement of the incident, we are unable to agree that the oral evidence of PWs 1 to 3 can inspire such confidence that this Court can ignore the inadequacies of the investigation and proceed to confirm the verdict of guilty, conviction and sentence on the basis of the oral evidence of PWs 1 to 3.

We do not brand PWs 1 to 3 as unreliable witnesses. But to us it appears that the conclusion is safe and sound in the totality of circumstances that the appellant/accused is at least entitled to the benefit of doubt. We unhesitatingly concede to the appellant/accused the benefit of such a doubt. We are unable to concur with the conclusion of the court below that a safe verdict of guilty, conviction and sentence can be founded on the evidence of PWs 1 to 3.

In the result:

a) This Crl.Appeal is allowed;

b) The impugned judgment in so far as it relates to the appellant is set aside;

c) We hold that the appellant/accused is entitled to the benefit of doubt. He is consequently found not guilty and acquitted of all the charges levelled against him. Registry shall forthwith communicate this judgment to the court below and the prison authorities where the appellant is detained. If further detention of the appellant is not required in connection with any other case, he shall forthwith be released from custody.