Joseph vs State of Kerala

Kochu Thommen, J.—The appellant is the second accused in Sessions Case No 58 of 1982 of the Additional Sessions Court, Trichur; Accused 1 to 4 were charged for the offences under Sections 323, 324, 307 and 302 read with Section 34 I.P.C. The learned Judge convicted the second accused under Sections 302 and 324 I.P.C. and sentenced him to undergo imprisonment for life u/s 302 I.P.C. No separate sentence was awarded u/s 324 I.P.C. The other accused were acquitted of all charges. The Revision Petitioner, Mary (PW1), challenges the order of acquittal. Accused 3 and 4 are the parents of accused 1 and 2. PW1 is the sister of the 3rd accused and the mother of PW2 and the deceased Jose. PW4 is the widow of Jose and PW5 is the wife of PW2.

The case of the prosecution is that at about 11-30 A.M. on 10-7-1981 PWs 1 and 2 and Jose were attacked by the accused as a result of which Jose died and PWs 1 and 2 were grievously injured. The first accused attacked Pws 1 and 2 and Jose with M.O. 1 chopper. The second accused attacked Jose, PW1 and PW2 with M.O. 2 knife. The third accused kicked, hit and pulled PW1 and the 4th accused exhorted the first accused to kill PW1. After the attack the accused ran away from the scene after throwing away their weapons. Jose was taken to the Irinjalakuda Hospital where he was seen by the Assistant Surgeon, PW8, at 12.20 P.M. and he issued Ext. P6 wound certificate. Jose died 10 minutes later. PWs 1 and 2 were also examined by PW8. Exts P4 and P5 respectively are their wound certificates The first accused was also examined by PW8 who issued Ext. P7 wound certificate, PW2 was later referred to the District Hospital, Trichur for further treatment and there he was attended to by PW17, the Thorasic Surgeon Ext. P4 has noted four injuries on PW1 and Ext. P5 has noted three injuries on PW2. On information received from the Irinjalakuda Hospital, PW16, the Sub-Inspector of Police, Irinjalakuda went to that hospital and recorded Ext. P1 statement of PW1 at about 12.40 P.M. PW16 registered Crime No. 227 of 1981 and prepared Ext. P11 F.I.R. PW18, the Circle Inspector of Police, took up the investigation. He held the inquest at 2 P.M. on the same day and prepared Ext. P13 report. Autopsy was conducted at about 4.30 P.M. by PW9, the Assistant Surgeon at Irinjalakuda Hospital. Ext. P8 is the post-mortem certificate. PW18 visited the scene of occurrence on the same day, prepared Ext. P3 scene mahazar and seized from there M.O. 1 chopper and M.O. 2 knife as well as M.Os. 7 and 8 ropes. At about 2.30 P.M. on the same day, PW16 arrested accused 1 to 3. PW18 sent the first accused for medical examination to PW8. In the wound certificate (Ext. P7) respecting the 1st accused, PW8 has noted an incised wound on the palmer aspect of the right-hand and an abrasion on the back of the left side of the chest. The 4th accused was arrested by PW18 on 12-7-1981 at 2 P.M. at her house. She was examined by PW15, the Civil Surgeon who noticed that she had 4 abrasions on her right forearm. The accused pleaded not guilty.

On the side of the prosecution 18 witnesses were examined 20 exhibits marked and 15 material objects produced. On the side of the defence 5 exhibits were marked. When questioned u/s 313 Cr P.C., the first accused stated that PW1 let her cows into the property of the accused. The cattle destroyed the coconut saplings, plantains, etc, When informed of it by Pw12, accused 1 and 2 ran to the spot where the cattle were. The second accused had a stick in his hand. They tied the four cows on four different coconut trees. When Pw1 came to untie the ropes, they told her that everyday her cattle were destroying their plants and that they were therefore going to take them to the pound. Hearing this Pw1 went away. She later returned along with Jose and Pw2. Pw1 had M.O. 1 chopper in her hand, Jose had a knife and Pw2 a packet. Pw1 cut the ropes with which the cows had been tied. When the first accused protested Pw1 aimed a cut at him which he warded off with his hand. His elder brother, the second accused, beat Pw1 with his stick. At this time, pw2 throw chilli powder which he had in his hand in a packet. Pw2 aimed a stab at the second accused which was warded off by the second accused with his stick Jose came to stab the first accused. The first accused then grabbed the knife and grappled with him. The second accused beat Jose with his stick. The first accused could not see things because of the chilli powder in his eyes. He jumped into the nearby pond, He is not fully conscious of what he had done.

The case of the prosecution regarding the incident is spoken to by PWs 1, 2, 4 and 5. Although PW3 was cited to speak to the incident, she turned hostile. PW1 resided with her sons and their wives in a one acre plot which she obtained from her parents under a deed of settlement whereunder the remaining portions of the whole property extending over 11 acres had been settled on her two brothers, the third accused and Paul. Paul''s property lies adjacent to her property on the north and the west and the third accused''s property lies further north-west adjoining that of Paul. Although the boundaries of the 3 plots are demarcated clearly, they are not Separated by any fence. Shortly before the incident PW1 was feeding her four cows near her kitchen. As she went back into the kitchen, one of her cows ran away towards north, and the other cows also ran in the same direction. They strayed into the property of the third accused. Seeing this PW1 ran after the cows to bring them back. By the time she reached the third accused''s property, all the cows had been tied together on one coconut tree. She tried to untie them but could not do it as all the cows had been tied together. She returned to her house and told her sons Jose and PW2 of what happened. She called Jose to go with her to untie the cows, but Jose refused saying that it was enough if the mother went alone. She then took a chopper (M.O. 1) and went to release the cows by cutting the rope. When she cut the rope the first accused wrested the chopper from her hand. At this time the fourth accused exhorted the first accused "kill her. We will go to the police". Hearing this, the first accused inflicted a cut with M.O. 1 on her head and she started bleeding profusely. She cried aloud. Hearing it Jose came running to her. The first accused then inflicted cuts on Jose on his head, back and hand. When PW 2 also came to the scene the first accused cut him with M.O. 1 Jose and PW2 fell down on the ground. At this time, the second accused inflicted a stab on the chest of Jose. He also stabbed PW1 on her back and on several parts of PW2''s body. The first accused again inflicted a cut on PW1 when she tried to resist his attack on Jose. The third accused pulled her, hit her and kicked her. She also fell down on the ground. Pws 4 and 5, she says, had also seen the incident at close quarters. This evidence is fully corroborated by what she had told the police in her First Information statement soon after the incident. Pw2 corroborates the testimony of Pw1 in all its material particulars. So do Pws 4 and 5. That Jose was stabbed on his chest by the second accused even after he fell down is spoken to by all these witnesses. Pws 2, 4 and 5 say that as Jose was stabbed on his chest after he fell down, the second accused said that it was his share Pws 2 and 5 further say that a cut was inflicted by the first accused on the hand of Pw2 after he fell down.

The medical evidence fully supports the testimony of the eye witnesses as regards the injuries sustained by the victims. The post-mortem certificate has noted 16 injuries on the body of the deceased. PW9, the Assistant Surgeon, says that external injury No. 1 (with its corresponding internal injuries) is sufficient in the ordinary course of nature to cause death and it could be caused by stabbing with a weapon like M.O. 2. External injury No. 1 is:

A stab wound 35 cms. long horizontally placed on the front of the left side of chest below the outer half of the left collar bone with gaping edges.

This injury has been identified by the learned Judge as the one inflicted by the second accused after Jose fell down.

The learned Judge considered the evidence at length and came to the conclusion that the medical evidence was consistent with the testimony of the eye witnesses as regards the injuries on Jose and PWs 1 and 2 He accepted without question the evidence of PWs 1, 2, 4 and 5. He further found that the injuries found on the body of the first accused were properly explained by the prosecution. These injuries as stated Ext. P7 wound certificate are:

(1) Incised wound horizontally placed at the palmar aspect of Rt. hand extending from the upper portion of Rt. little finger to the index finger. 4 cms. long & 3/4 cm. deep subcutaneous tissue gaping.

(2) An abrasion horizontally placed 1.5 cm. long 2 cm. below (It.) scapular angle over the back of the left side chest.

The incised injury, the learned Judge found, could have been caused when the first accused wrested the chopper from the hand of PW1. The other injury was only an abrasion which needed no explanation. The injuries noticed on the body of the fourth accused, the learned Judge found, were minor injuries and she herself had no case that she sustained them during the incident. The learned Judge says that the evidence of PWs 1, 2, 4 and 5 clearly proves that it was accused 1 and 2 who inflicted the injuries on PWs land 2 and the deceased. As regards the third accused, the learned Judge held that it was not proved that he had any intention to cause harm to PW 1 while he pulled her. He says "he might have pulled PW1 even for rescuing her from the attack of his sons". It was accordingly found that it was not proved beyond reasonable doubt that the third accused had caused any injury to PW1. As regards the fourth accused the learned Judge found that the prosecution had no case that she committed any overt act.

Having found that accused 1 and 2 had committed the overt acts alleged against them the learned Judge held that the first accused acted in exercise of his right of private defence when he resisted the attempt of PW1 and her sons to take back their cattle and that he was therefore not liable for any of the acts committed by him This is what the Judge said:

...Since the entry of PW1 with M.O. 1 chopper and subsequent entry of PW2 and Jose were unlawful and their entry amounts to a criminal trespass accused 1 and 2 had the right to protect their property against such unlawful entry by causing any injury short of death. Hence the causing of injury by the 1st accused to PWs 1 and 2 and deceased Jose does not amount to an offence since his act was in exercise of the Tight of private defence of property. Hence accused No. 1, Ittiachan cannot be held liable for any of the acts committed by him.

However, in regard to the second accused, the learned Judge held that he enjoyed no such right when he inflicted the fatal wound on the chest of Jose after he and others fell down. The Judge says:

...It is proved from the evidence of PWs 1, 2, 4 and 5 that 2nd accused stabbed deceased Jose, and PWs 1 and 2, only after these persons fell down due to the injuries inflicted by 1st accused. As soon as PWs 1 and 2 and deceased Jose fell down due to the injuries inflicted by the 1st accused, there was no threat or danger to the accused''s property from Jose or PW2 or PW1, and therefore, the act of A2 in stabbing deceased Jose with M.O. 2 knife and causing the fatal injury to him and in stabbing PWs 1 and 2 is not protected by the right of private defence of property. He was not entitled to avail of the right of private defence of property, as soon as the threat to the property was ceased because of the falling of deceased Jose and PW2 on the ground due to the injuries inflicted by 1st accused, and PW1 was disarmed by 1st accused and she also fell down due to the pulling by the 3rd accused. Therefore the act committed by the 2nd accused in causing the death of deceased Jose by stabbing with M.O. 2 knife and also causing injuries to PWs 1 and 2 by stabbing with M.O. 2 knife which is a deadly weapon amounts to murder punishable u/s 302 I.P.C., and causing hurt with deadly weapon punishable u/s 324 I.P.C. respectively.

The Judge further held that there was no evidence that accused 1, and 4 shared with the 2nd accused a common intention to cause the death of Jose. Accordingly he acquitted accused 1, 3 and 4 while he convicted the second accused under Sections 302 and 324 I.P.C.

Challenging the conviction of the second accused, his counsel; Shri. T.R. Raman Pillai, submits that the accused were perfectly justified in acting in defence of their property by virtue of the provisions of the Kerala Cattle Trespass Act, 1961 which recognises the right of the owner of land to seize cattle straying into his land and to take them to a pound. The cows, were detained by the accused in exercise of that right. That right, he says, continued throughout the incident and the learned Judge having recognised that right ought not to have convicted the second accused u/s 302 I.P.C. even if he had actually exceeded his right of private defence when he inflicted the fatal wound.

The totality of the evidence leaves no doubt that the fatal injury on the body of the deceased was caused by the second accused. Whatever be the validity of the finding as regards the right of private defence which the second accused is found to have enjoyed until Jose fell down, the finding of the learned Judge that the second accused was not protected by the right of private defence when he inflicted the fatal injury on a fallen victim is, in our view, perfectly valid and correct. This was not a case of exceeding the right of private defence, but of actually acting without any such right. That the second accused inflicted the fatal wound with M.O. 2 knife on the chest of Jose after he had fallen down is, in the light of the ocular and medical evidence, proved beyond reasonable doubt. In the circumstances the challenge of the second accused against that finding is unsustainable. His appeal is accordingly without merit.

Most unfortunately and ill-advisedly the State has not chosen to file an appeal against the order of acquittal. We are, therefore, not in a position to appreciate the evidence on record with a view to determining whether the learned Judge was right on the facts of this case in coming to the conclusion that the other accused were not guilty for the reasons stated by him.

Appearing for the revision petitioner Sri. T.V. Prabhakaran submits that the learned Judge having chosen to believe the testimony of the prosecution witnesses was not justified in coming to the conclusion that accused 1 and 2 were protected by the right of private defence at any stage of the incident. On the other hand, he says, Pws 1 and 2 and the deceased acted in defence of their property, and the accused were the aggressors at all material times. The accused, therefore, enjoyed no right of private defence. He further contends that the finding that accused 1, 3 and 4 did not share a common intention with the 2nd accused is perverse and unjustified. Counsel submits that this Court should, in exercise of its power u/s 401 Cr.P.C., reverse the order of acquittal and direct further enquiry by the trial court into the alleged acts of accused 1, 3 and 4 on the basis of the evidence already on record. That the revisional jurisdiction of the High Court u/s 401 Cr.P.C. (Section 439 of the Old Code) should not be exercised except in the most exceptional circumstances was pointed out by the Supreme Court as early as 1951. In D. Stephens Vs. Nosibolla, , the court cautioned:

(10) The revisional jurisdiction conferred on the H.C. under S. 439, Criminal P.C. is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Govt. has a right of appeal under S. 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Ct. has taken a wrong view of the law or misappreciated the evidence on record....

See also Logendra Nath Jha and Others Vs. Shri Polailal Biswas, . In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , the Supreme Court pointed out that the revisional jurisdiction should not be exercised except when there was some glaring defect in the procedure or a manifest error on a point of law and consequent miscarriage of justice. Pointing out that sub-section (4) of Section 439 (Section 401(3) of the New Code) forbids a High Court from converting a finding of acquittal into one of conviction, the court observed.

...that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised.

The exceptional cases, the court points out, are: (1) where the trial court has no jurisdiction to try the case but has still acquitted the accused; or (2) where the trial court has wrongly shut out evidence which the prosecution wished to produce; or (3) where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible; or (4) where material evidence has been overlooked either by the trial court or by the appeal court; or (5) where the acquittal is based on a compounding of the offence, which is invalid under the law; or any other case of a similar nature. In Mahendra Pratap Singh Vs. Sarju Singh and Another, , Hidayatullah, J. as he then was, reaffirming the principle stated in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , stated:

...Although the list given by this Court is not exhaustive of all the circumstances in which the High Court may interfere with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this Court....

(Emphasis supplied)

Bearing these principles in mind, we must decline to exercise our revisional power to reverse the order of acquittal, for we are not satisfied that this is one of the exceptional cases mentioned by the Supreme Court where a manifest illegality or miscarriage of justice has occurred in one of the circumstances catalogued in K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , or in analogous circumstances. The finding of the learned Judge that accused 1 was protected by the right of private defence and accused 1, 3 and 4 did not share a common intention with the second accused to commit murder is basically a finding based on appreciation of evidence although involving a mixed question of law and fact. Even if the view taken by the learned Judge was a wrong view of law reached on misappreciation of evidence this Court cannot reverse that finding in the absence of an appeal by the State. So is the finding that accused 3 and 4 did not commit any overt act. In these circumstances we shall not exercise our revisional power at the instance of the private complainant.

Accordingly we dismiss the Appeal as well as the Revision Petition.