Eldhose vs State of Kerala

P. Bhavadasan, J.—1. The accused in this case, who is the father of PW 3 and the husband of PW 2, was put in the dock and tried for the offence punishable under Sections 302 and 307 of the IPC. He was found guilty on both counts. Accordingly, he was convicted for the offence and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 75,000/- with a default clause of rigorous imprisonment for one year for offence under Section 302 IPC and he was also directed to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- with a default clause of six months'' rigorous imprisonment for offence punishable under Section 307 of the IPC. The Court below also ordered that the sentence shall run concurrently. It has further ordered that if the fine amount is realised, Rs. 75,000/- shall be paid to the parents of the deceased under Section 357(1)(b) of the Cr.P.C. as compensation. Further direction was that in case the appropriate Government seeks to exercise the powers under Sections 432 and 433 of the Code of Criminal Procedure, the benefit of set off shall be provided to the accused.

The prosecution Unfurls the story thus:

PW 1 fell in love with PW 3 and that affair was not liked by the accused Eldhose @ Kunjumon, the father of PW 3. Both PW 1 and 3 were students. On the date of incident, i.e., on 18.10.2009 at about 11.00 am, while PW 1 was going for a movie along with his friend Sujith, the deceased, in the mobile phone owned by PW 1 which was in the possession of the deceased at the relevant time, a call came for PW 1. The call was attended to by the deceased. On hearing abusive words being showered, phone was handed over to PW 1. After continuing to shower abuses, the speaker on the other side who was none other than the accused, told PW 1 that he wanted to have a discussion with him about his daughter and he was asked to come to the house of the accused. At about 1.30 pm, PW 1 along with his friend, reached the house of the accused. From the courtyard of the house, PW 1 called the father of PW 3. Then PW 2, the wife of the accused and PW 3, the daughter of the accused, came out of the house and they were asked by PW 1 to call the father of PW 3 since they had come on his request. However, PW 2 and 3 tried to persuade PW 1 to leave as the accused did not like the relationship. In spite of the request by PW 3, PW 1 caught hold of the hands of PW 3 and pulled her towards the road, which was obstructed to by PW 2.

According to the prosecution allegation, on hearing the cry, the accused landed on the spot with a knife and stabbed on the chest of the deceased who was standing in front of PW 1. Suffering the injury the deceased ran towards the road and fell on the steps leading to the road. Blood was flowing from the injury. The accused turned towards PW 1 and tried to attack him which he warded off; but in the process he sustained injuries on his fingers of his left hand. PW 1 ran towards the road for saving his life. It is further stated that, then PW 1 happened to see the accused kicking the deceased Sujith, who had fallen on the steps, to the road. The police immediately came to the spot and the deceased was taken in the police jeep and shifted to the hospital. By that time, the vehicle used by the High way patrol police reached the spot and PW 1 was carried to the Adimaly Taluk Hospital. After getting preliminary treatment from that hospital, he was sent to Kolenchery Medical Mission hospital for better management. Initially, PW 1 was attended to by PW 26 who issued Ext. P26 wound certificate. Later while undergoing treatment in the Medical Mission Hospital at Kolencherry, PW 1 learnt that his friend was no more. Getting information about the incident, PW 24 the Assistant Sub Inspector of Police, Adimaly police station, reached the Medical Mission hospital and recorded Ext. P1 FI statement furnished by PW 1 from the casualty ward. Based on the said FI statement, Ext. P23 FIR was registered.

Investigation was taken over by PW 25. He was in charge of the office of the Circle Inspector, Adimaly, on the relevant date. He took over investigation at about 7.00 am on that day. Learning about the death of Sujith, he went to the hospital where the body of Sujith was kept and conducted inquest over the body of Sujith and prepared Ext. P8 certificate. The clothes found on the body were seized and they are MO 4 and MO 5. He then proceeded to the place of occurrence and prepared Ext. P12 scene mahazar. He seized a pair of footwear and collected some blood stained soil from the place of occurrence which were marked as MO 8 and MO 14 respectively. A search was conducted in the house of the accused as per Ext. P10 search list and MO 3 was taken into custody.

Investigation was then taken over by PW 27 who then functioned as Circle Inspector, Adimaly, from 24.12.2008 till 2.3.2011. He took over investigation on 20.10.2009. He arrested the accused on that day and prepared the arrest memo which is Ext. P28. The accused was wearing the same lunki which he had worn at the time of incident, which is MO 2 and which was seized as per Ext. P9 mahazar. Based on Ext. P11(a) confession statement stated to have been furnished by the accused, MO 1 knife was seized as per Ext. P11 mahazar. It may be mentioned here that after the inquest was conducted over the body of Sujith, the body was sent for autopsy. PW 21 conducted postmortem and issued Ext. P20 certificate. PW 27 had the accused identified by the witnesses and he filed a report, Ext. P29 incorporating S. 201 of the IPC also. He had procured the services of Scientific expert and the materials collected by the Scientific expert were handed over by PW 27 in a sealed cover and the relevant mahazar is Ext. P14. The dress alleged to have been worn by PW 1 at the relevant time was handed over to PW 27 and was seized under Ext. P13 mahazar. Relevant articles are MO 6 and 7. Mobile phone which was in the use of PW 1 was seized as per Ext. P30 mahazar and that is MO 9. The articles so seized during the investigation was forwarded to the Court as per Ext. P31 property list. He then preferred a forwarding note to the Court to have the articles sent for chemical analysis as per Ext. P34. After obtaining Ext. P35 forensic report, he completed investigation and laid charge before Court.

The Court before which the final report was laid took cognizance of the offence and finding that the offence is exclusively triable by a Court of sessions committed the case to the Court of Sessions, Thodupuzha under Section 209 of the Cr.P.C. after following the necessary procedure. The said Court made over the case to the Additional District and Sessions Court, (Ad hoc-I), Thodupuzha, for trial and disposal.

The latter Court on receipt of records and on appearance of accused before Court framed charge for the offence punishable under Section 302, 307 and 201 of the IPC.

To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore, had to examine PW 1 to 27 and had Exts. P1 to 35 marked. MO 1 to 14 were got identified and marked. After the close of the prosecution evidence, the accused was questioned u/s. 313 of the Cr.P.C. He apart from denying the incriminating circumstances put to him by the Court, filed a statement in which he stated that on the date of incident at noon, someone had called in his phone. He was neither familiar with that person nor his voice and the phone was handed over to another person who used abusive words. On hearing the abusive words, he also exchanged abuses. Among the two persons, one person told him that he is in love with his daughter, PW 3, and that his daughter is to be married to him otherwise she would be forcibly taken away from the house. The accused says that he told those persons that they should not call him again and his daughter had no infatuation towards him. After sometime, while he was lying on his bed, two persons came to the courtyard of his house and asked his daughter "where is Eldos" and they asked PW 3 to go along with them and threatened that if she did not do so, she would be forcibly taken away from the house. PW 3 is alleged to have stated that she was not willing to go with the person who had called her and she had no intention to go with him and that she would prefer to obey her parents. Paying little heed to the words of PW 3, according to the appellant/accused, two persons who had come to the house of the accused tried to forcibly remove his daughter from the house. Even though, PW 2 intervened and PW 3 struggled to wriggle out from the clutches of the two persons, that was in vain. He then heard the cry of his daughter for help. When he came out, he found that his daughter was being dragged towards the step near to the road. The accused asked them to leave her alone, but they paid little heed to his request and declared that they would forcibly take away his daughter. He says that he too was attacked. In the melee that followed, the accused would say that he wielded a knife, which he picked up from the place, at PW 1 and the deceased so as to frighten them. In that process, PW 1 and his friend might have suffered injuries. The incident took place in the courtyard of his house near to the water tank. According to the appellant/accused, PW 1 and the deceased are strangers to him. He claims to be innocent and that he has been falsely implicated. He had not committed any offence.

Finding that the accused could not be acquitted u/s. 232 of the Cr.P.C., he was asked to enter on his defence. The accused had DW 1 examined and Ext. D1 marked.

The Court below considering the evidence of PW 1 and holding that the evidence of PW 2 and 3 are unreliable as they are interested witnesses and were bound to support the accused, the Court thought it fit to come to the conclusion that the prosecution had succeeded in establishing the case against the accused. The Court below unfortunately placed reliance on those documents relating to the antecedents of the accused. More over, the Court below took into consideration the call details produced by the prosecution and came to the conclusion that in all probability, PW 1 was asked to come to the house of the accused and the accused at that point of time, had entertained the idea to do away with the person who pestered his daughter. Holding so, the accused was found guilty and the conviction and sentence, as already mentioned, followed.

Sri. P. Vijaya Bhanu, the learned Senior counsel appearing for the appellant, assail the conviction and sentence on several grounds. In fact, the learned Senior counsel did not dispute the incident but the contention put forward is that, on a consideration of the evidence in the case and on an impartial and dispassionate analysis of the evidence, it could be seen that the incident had not occurred in the manner alleged by the prosecution. According to the learned Senior counsel, as is evident from the records available, the prosecution had attempted to conceal more than it has revealed. Even going by the evidence of PW 1, it is clear that the deceased and PW 1 were total strangers to the accused and it is inconceivable that as soon as they reached the house of the accused, without pausing to identify PW 1, accused would simply resort to stabbing Sujith. The learned counsel also pointed out that the prosecution has no consistent case as PW 1 deviates from the FI statement and gives a different version. The learned counsel went on to point out that though the claim made by PW 1 is that he received a call from the accused and that he thereafter went to the house of the accused, his call details would clearly show that subsequent to the said call, he had made several calls to the house of the accused. These facts have been conveniently concealed by the prosecution. Even more strange, according to the learned Senior counsel, is the attempt on the part of PW 1 to shift the place of incident. He for reason best known to him, when examined by PW 26, the doctor told him that the place of occurrence was on the road. The learned counsel pointed out that shifting of the place of incident was with a purpose to bring out that the incident did not take place in the courtyard of the accused and further to conceal what had actually transpired at the place of incident.

Referring to the wound certificate, the learned Senior counsel contended that it is quite unfortunate that the Court below has not properly appreciated the evidence furnished by DW 1 and there was no dispute regarding the identity of the person concerned at all and identity issue was a fiction created by the Court below.

The learned Senior counsel contended that there has not been an appreciation of evidence in the proper perspective and the Court below came to the conclusion without adverting to the materials on record which would throw considerable doubt regarding the prosecution story. In short, the contention is that, as the prosecution has not been able to establish the case as alleged and since the incident has not occurred as alleged by the prosecution, the benefit of doubt must go to the accused and he is entitled to be acquitted.

Countering the above argument, the learned Public Prosecutor contended that none of the contentions raised by the learned Senior counsel has any merits. In fact, according to the learned Public Prosecutor, the incident is not disputed and if that be so, consequences must follow. The learned Public Prosecutor contended that it was with a pre intention to do away with the person that the accused had invited PW 1 to his house. If that be so, the acts of the accused cannot be justified. The mere fact that there has been some variation in the evidence of PW 1 cannot be given undue significance or importance to doubt the prosecution version.

True, the wound certificate of PW 1 does show the place of occurrence as the road. But according to the learned Public Prosecutor, that was given in panic stage and going by the evidence of PW 1, it is evident that on sustaining the injury, he had run to the road to escape. The learned Public Prosecutor also relied on the phone call details and also on the documents supplied by the prosecution to support the finding of the Court below. Of course, the recovery of MO 1 was also taken aid of the learned public Prosecutor. The report of the Forensic lab showing the blood stains on the clothes of the accused seized during the investigation, was also highlighted by the learned Public Prosecutor. The learned Public Prosecutor contended that there was no justification for the accused to have committed the acts alleged against him and the Court below has properly considered the evidence and has to come to the right conclusion. In short, the contention is that there are no grounds to interfere with the findings of the Court below.

The First and foremost question that arises for consideration is what is the cause of death of Sujith.

The fact that Sujith had gone along with PW 1 to the house of the accused cannot be disputed even by the defence.

The evidence furnished by PW 1 is that no sooner than they reached the house of the accused, the accused jumped out of the house with a knife and inflicted injury on the chest of the deceased. How far this version can be believed, will be decided later. Suffice it to say that, insofar as the testimony regarding the infliction of injury is concerned, there cannot be much dispute at all. Even though Sujith was shifted to the hospital at Admimaly, he was pronounced dead. PW 25, the Circle Inspector of police who had initially took over investigation of the case, conducted inquest over the body and issued Ext. P8 report.

Thereafter, the body was sent for autopsy. PW 21, the Forensic Surgeon conducted autopsy over the body of Sujith and furnished Ext. P20 report. The said certificate shows the following ante mortem injuries:-

Injuries (Ante mortem)

(i). Abraded contusion on low back midline 3 x 3 c.m. 8.5 c.m., above coccyx.

(ii). Abraded contusion on front of left leg 6 x 0.3 c.m., vertical 10 c.m. below knee line.

(iii). Abraded contusion on front of right knee region 5 x 0.4 c.m., transverse 7 c.m. below knee line.

(iv). Abraded contusion on left index knuckle 1.5 x 1.5 cm.

(v). Abraded contusion on left middle finger 0.5 x 0.5 c.m. at proximal inter pharyngeal joint.

(vi). Abraded contusion on back of left ring finger 0.5 x 0.5 c.m. at proximal interphalangeal joint.

(vii). Stab wound on left side of chest 3 x 1.5 c.m. transverse both ends pointed on central region of collar bone directed downwards and backwards after slipping through front of collar bone, entered the chest cavity, cuty open. The coronaries jugular vein 0.6 x 0.4 c.m. The left chest cavity contained 2 litres of blood and blood clots. The wound made a stab on apex of left lung on upper lobe 0.7 x 0.3 c.m. for a depth of 2.5 c.m., in the collapsed stage. The two lobes of left lung collapsed. The wound had a total minimum depth of 10.5 c.m. The right lung oedematous and showed compensatory emphysema.

The evidence of PW 21 apart from being in tune with the contents of Ext. P20 also shows that the injury which led to the death of Sujith could have been caused by the weapon in the nature of MO 1. According to the evidence furnished by PW 21, injury No. 7 which was inflicted on the chest of the victim is the fatal injury. Forensic expert also says that the injury is sufficient in the ordinary course of nature to cause the death of a person. From the above materials the irresistible conclusion is that the death of Sujith was homicidal.

The next question that arises for consideration is whether the prosecution has proved the case beyond reasonable doubt and has succeeded in establishing that the incident has occurred as alleged by the prosecution.

In fact, the main evidence for answering the above question is furnished by PW 1. Even though PW 2 and PW 3 had occasion to witness the incident, their evidence is not of much help to the prosecution since they deposed against the prosecution case.

Since the main item of evidence is the testimony furnished by PW 1, it becomes necessary to refer to his evidence in detail.

PW 1, at the relevant time, was studying for diploma in the Polytechnic, Erode. On 18.10.2009 at about 2.00 p.m. the incident occurred in the courtyard of the house of the accused. At the time of evidence he would come forward with a statement that both the accused as well as PW 3 called him over the phone and the accused invited him to the house of the accused. At about 2.00 p.m., he along with the deceased Sujith, reached the place of occurrence. They were met by PW 2 and 3 who tried to persuade them to leave the place. PW 1 told them that they came to their house because they were asked by the accused to come to the house for a discussion. In chief examination, PW 1 would say that soon thereafter, the accused, without saying anything, stabbed on the chest of Sujit. He again tried to stab the deceased. That attempt was resisted by PW 1 which caused an injury on his left hand. He caught hold of the knife, which was withdrawn by the accused to cause further injury on him. PW 1 ran away from the place, while Sujith, having suffered a stab injury on the chest, was staggering. He ran away towards the steps lying in front of the courtyard and fell on the steps. PW 1 would say that the accused caught hold of him by his shirt and pushed him on to the road from the courtyard of his house. The accused again attempted to stab PW 1 which he was able to ward off. He would say that while he was running away, he saw two ladies and two gents by the side of the road and told about the incident. He pleaded to help him to carry Sujith to the hospital. But they refused to do so because, the accused was involved in the incident and if they help Sujith, they would be put in trouble. They gave an option to PW 1 that they would inform the police. They did so. Almost immediately thereafter, the police from the Adimaly police station came in jeep and shifted Sujith to the hospital. By that time, the highway patrol police also came there. PW 1 was taken to the Adimaly hospital by the highway police and from there he was referred to Kolenchery Medical Mission hospital. He claims to have undergone an operation. He then says that he furnished Ext. P1 FI statement from the Kolenchery Medical mission hospital. He identified the articles seized by the Investigating Officer during investigation. It is very strange to note that in the chief examination, when a question was put to PW 1 as to why he had narrated the scene of incident as the road, the answer given by him was that, it was due to the pain of the injury suffered by him and the loss of blood, and he was thoroughly exhausted.

His statement in cross examination has considerable relevance in this context. In no unambiguous terms he admits that the accused did not know either him or Sujith.

PW 1 would further say that PW 2, the mother of PW 3, was also aware of the relationship. When he was asked as to why he had taken Sujith along with him to the house of the accused, initially he stated that Sujith was a good friend of him; but later on he changed his opinion and stated that it is for his own safety, he had taken Sujith along with him. He also admitted that he had taken Sujith along with him so as to tide over any unpleasant incident that may arise in the house of the accused.

In cross examination, PW 1 claimed that, at about 1.00 p.m. on the date of incident, PW 3 had called him and invited him to her house. She told him that she would go along with him, if there was nobody at home on his arrival. However, PW 1 was gracious enough to admit that over the phone he and the accused exchanged abuses in plenty. It is also brought out in cross examination that the help of a person by name Benin Baby, who is DW1, was also sought for by PW 1. He wanted the said person to come in front of the house of the accused. However, Benin Baby did not oblige him. It was admitted by PW 1 that as soon as he and Sujith arrived at the house of the accused, PW 2 and 3 tried to persuade them to leave. However, they had decided that since the accused had invited them to his house, they would not leave without meeting him. It is brought out in cross examination of this witness that he was taken to the Adimaly hospital by a police officer and when he narrated the reason for causing injury, the Sub Inspector was present. He also admitted that he had narrated the entire incident to the said SI. He admits that he had not told the Sub Inspector about the acts committed by the accused.

The veracity of the evidence of this witness will be decided a little later. Coming to the evidence of PW 2 and 3 who are the wife and daughter of the accused respectively, they give a different version. PW 2 admits that the incident happened in the courtyard of her house and she also admits the presence of PW 1 and Sujith on the relevant date. However, she would say that when they came to the place of occurrence she and her daughter asked them to leave. She also made mention of the repeated calls made by the accused on the date of the incident at about 1.30 p.m. and thereafter. She then says that there was an attempt to take her daughter away against her will. She asserts that even after they were asked to leave the house, PW 1 and Sujith insisted that they would leave only after having had a talk with the accused. According to her, her husband was sleeping at the relevant time. Hearing the noise outside, when her husband came out of the house, he saw the deceased dragging PW 3 by force. Even though the accused requested him to leave the place, they did not give any attention to that request and that resulted in a scuffle between the accused, Sujith and PW 1.

PW 3 is none other than the daughter of the accused. She admitted that both PW 1 and the deceased Sujith were familiar to her. It has come out from her evidence that she and her father used separate mobile phones and they used it interchangingly. She would say that on the date of incident at about 12.00 p.m., on ringing of the land phone in her house, she picked up the phone. The speaker on the other side was PW 1. She says that PW 1 told her that he was coming to her house and that she should go along with him. She replied since her father was in the house she could not do so and kept the phone low. However, according to PW 3, PW 1 kept on calling her. That resulted in the accused attending the phone and there were exchange of words between them. She overheard her father''s talk with PW 1 that PW 3 would not go along with him and he need not come to their house for that purpose. PW 3 also admits that she had an affair with PW 1 but she also says that she would not do anything against her father''s command. She too would support the evidence of her mother, PW 2, that when PW 1 and Sujith came to their house, they were asked to leave immediately but little attention was paid to her request and they continued to stay there. PW 3 then says that, even though her mother, PW 2, tried to interfere when she was forcibly brought out by Sujith, she was not successful in her attempt. PW 3 would say that she cried aloud and that hearing her cry father came outside the house. He tried to extricate her from the clutches of Sujith. They continued to hold. At that moment, the helpless father picked up a knife which was lying nearby and wielded to save the life of his daughter and to frighten away the intruders.

Of course, a few other witnesses have been examined by the prosecution but their evidence are not very relevant One of them would say that he heard the cry of a girl from the house of the accused. As already stated, the evidence regarding the incident remains confined to PW 1, 2 and 3. Among them, PW 2 and 3 are wife and daughter of the accused and the learned Public Prosecutor may be justified in his submission that their evidence cannot be given undue importance. In short, the prosecution relies on the evidence on PW 1.

It is now necessary to assess the evidence in the light of his testimony and other items of evidence in the case. The first among the other items of evidence is Ext. P1. That is the earliest version of the incident as narrated by PW 1. It is significant to notice that Ext. P1 is totally silent regarding the call said to have been made by PW 3 to PW 1 asking him come over to the house.

This statement made at the time of evidence can be treated only as an embellishment or development with a specific intention to indicate that both the accused and PW 3 tried to lure PW 1 to come to their house. In the absence of the statement regarding the phone call said to have been made by PW 3 in Ext. P1, the said statement at the time of evidence can be taken only with a pinch of salt.

Recalling the evidence of PW 1, he stated that as soon as they reached the house of the accused, the accused jumped out from his house with a knife and inflicted injury on the chest of the deceased. First of all, one has to remember that the accused had no idea that the deceased would come along with PW 1. More significant is the fact that even PW 1 admits that neither he nor Sujith was familiar to the accused. Evidently, the wrath of the accused was directed against the person with whom his daughter had fallen in love. He had no axe to grind against any other person. If that be so, the first and the foremost attempt of the accused, when he found 2 persons at his home, would have been to ascertain as to who among them was the person whom he disliked. Without making any attempt or effort to do so, when the prosecution says that he simply jumped out from the house with a knife and inflicted injury on Sujith who had nothing to do with the affair between PW 1 and PW 3, one finds it extremely difficult to swallow the same.

One may remember here that PW 1 admits that when they reached the home, they initially met PWs 2 and 3 who tried to persuade them to leave the house. Still they remained there. There is some ambiguity regarding the place at which the accused was at the relevant time. One version is that, he was inside the house sleeping, while the other version is that he was watching TV. Whatever that be, going by the evidence of PW 1, it is clear that without even bothering to ascertain the identity of the person with whom he had scores to settle, the accused simply inflicted the injuries on Sujith.

The said version cannot stand scrutiny.

In this context, the other items of evidence will also have to be viewed. PW 1 speaks about the phone call by the father alone, asking him to come over the house to settle the matter by talking to him. At the time of evidence, he comes forward with a case that, PW 3 had also called him which, as already noticed, is conspicuously absent in Ext. P1. He is also totally silent regarding the various calls which he made from his mobile to the land phone of the house of the accused which is evidenced by the call details produced by the prosecution. It is not as if that PW 1 and his friend Sujith had innocently gone to the house of the accused. One may remember here that their presence was not encouraged by PW 2 and PW 3 who pleaded them to leave anticipating trouble since the father of PW 3 was at home.

One cannot omit to note the fact that the incident occurred in the courtyard of the house of the accused. It has already been noticed that it is extremely difficult to accept the prosecution version that as soon as the accused saw two persons, he straight away inflicted injuries without knowing who is who. It is also interesting to note that going by the evidence rendered by PW 1, he had received a call at about 12 in the noon on the date of incident in his mobile phone from the accused. In no less terms PW 1 admits that there was exchange of abuses in plenty between them and it was thereafter, that he was invited to the house. In such circumstances, it is difficult to believe that PW 1 would have been so gullible in accepting the invitation to go over to the house of the accused. It is further falsified by the fact that PW 1 is totally silent regarding the phone call made by him thereafter to the land phone of the accused, which is evidenced by the call details furnished by the prosecution. It is clear that as the defence points out that it is not an innocent act of PW 1 going to the house of the accused along with Sujith because the defence had a case that PW 1 had gone along with Sujith with a purpose. In order to draw support for the same, it is also pointed out that PW 1 had sought the aid of DW 1 which esd politely declined by DW 1.

It needs to be noticed here that the court below had refused to consider the evidence of DW 1 on the ground that his identity is not established. That seems to be strange. Even PW 1 admits that he had sought the aid of a person by name Benin Baby. The prosecution did not examine him. The defence cited him as a witness and examined as DW 1. He deposed that he had, on the date of incident, received a call from PW 1, seeking to be present on the National Highway in front of the house of the accused. Though DW 1 does say that he did not know for what purpose his presence was sought, he would say that he was not willing to oblige PW 1 and rejected the request of PW 1.

It is significant to notice that, in cross examination, prosecution did not dispute the identity of DW 1 as the person whom PW 1 had contacted as admitted by him. In spite of this fact, unfortunately, the court below considered the identity of DW 1 and goes on to hold that it cannot be said that his evidence can be accepted. The said view is not acceptable at all, for, there was no dispute regarding the identity of DW 1 at the hands of the prosecution.

The act of PW 1 taking Sujith and seeking the aid of DW 1 shows that he was anticipating trouble or some unpleasant incidents. He had not gone to the house of the accused as innocent as he would like to depict.

It is too difficult to accept the version given by PW 1 that, without even bothering to identify the real culprit, the accused had inflicted the stab injuries. The fact that PW 1 is trying to conceal more than what he says is evident from several circumstances brought out from the evidence of the case. He says that he, after having suffered injuries at the hands of the accused, ran towards the road. There is no dispute now as to the fact that he was removed to the hospital by the Highway Patrol Police.

PW 1 admits that when he was taken to the hospital at Adimaly, the Sub Inspector of Police was with him and it was in his presence that he had narrated the history of the injury to the Doctor concerned. It is noteworthy that PW 1 has deposed that prior to that, he had disclosed the entire incident to the said Sub Inspector. If that be so, it is difficult to believe that the Sub Inspector would have stood there and accepted the false narration of the place of incident furnished by PW 1 to the Doctor. Apart from the above fact, it also shows that there is inclination on the part of PW 1 to shift the place of incident with ulterior motive.

It is quite evident from the testimony of PW 1 that the police had information about the incident even prior to the lodging of Ext. P1 FIS. Going by the evidence of PW 1, police from Adimaly police station had come to the place and removed Sujith to the hospital and going by the evidence of PW 1, even prior to furnishing Ext. P1, he had narrated the entire incident to the Sub Inspector who accompanied him to the hospital. It escapes one''s understanding as to what caused the police to wait for the lodging of FIS by PW 1 when they had all the information regarding the commission of the cognizable offence to register an FIR.

If one considers each of the above items of evidence in isolation, they may look insignificant. But, when we consider the evidence as a whole, it is evident that considerable doubt is created regarding the prosecution version of the incident. It is extremely difficult to believe that the accused would have resorted to such a cruel act without any inclination to identify the person with whom he had scores to settle and simply inflicted injury on Sujith even assuming that he was standing in front of PW 1. Then again, the attempt to shift the place of incident also cannot be easily overlooked. Coupled with the above is the fact that PW 1 is keen to conceal the telephone calls made by him to the house of the accused. In the above context, we feel that the approach of the court below is totally ignoring the evidence of PWs 2 and 3 as interested witnesses may not be justified. We proceed no further in that direction.

Adv. Shri. K.K. Rajeev, the learned Public Prosecutor contended that the incident has been admitted, it is for the defence to justify the act committed by the accused. It is also contended that one cannot predict the way in which a witness reacts to a situation and that should be borne in mind while appreciating the evidence in the case.

We hasten to add that the principle is well settled that the burden is on the prosecution to establish the case beyond reasonable doubt and thereafter only the burden on the defence arises for consideration. The prosecution is bound to prove the incident in the manner they allege and any lacuna or infirmity in their evidence cannot be built up on the weakness of the defence evidence. On the very face of it, we find the prosecution version of the incident is unpalatable and unacceptable and does not stand to logic reason or common sense. True, we are also feel pained to notice that a life has been lost but that is not a ground for us to overlook the evidence in the case and to mulct liability on the accused.

For the above reasons, we are unable to uphold the conviction and sentence passed by the Court below for the offences punishable under Section 302 and Section 307 attributed to the accused. We set aside the conviction and sentence and hold that he is not guilty of the offence alleged against him. He shall be released forthwith if not wanted in any other case. The bail bond, if any, executed by the accused, shall stand cancelled.