Kochappan alias Thomayi vs State

Velu Pillai, J.—Accused 1 and 2, who have been convicted by the Sessions Judge at Trichur, have preferred this appeal. The 1st accused has been convicted u/s 304Part I, I.P.C. and sentenced to undergo rigorous imprisonment for 7 years and u/s 307I.P.C. and sentenced to undergo rigorous imprisonment for 3 years, the sentences ordered to run concurrently. The 2nd accused has been convicted u/s 324I.P.C., and sentenced to undergo rigorous imprisonment for 2 years. Accused 3, 4 and 5 have been acquitted. On the 11th March 1958, at about 11 a.m. when P.W.1 was passing along the road in front of the house of the 3rd accused Veronica, the wife of the 1st accused, who was then chatting with P.W.5 the mother of the 3rd accused, on the road side, happened to pass an insulting remark on P.W.1 upon which he stopped and abused them downright. He then left the place, threatening that he would return in the evening. On the same day, at about 6 p.m., P.W.1 and the deceased Kuttiappu came to the road in front of the 3rd accused''s house, and P.W.1 called the 3rd accused to come out into the road. When he came P.W.1 asked the third accused not to employ impertinent servants in his household upon which, an altercation ensued between them P.W.1 then beat on the fact of the 3rd accused with his second cloth, whereupon the 3rd accused seizing it, entered into a struggle with P.W.1. By this time accused 1, 2, 4 and 5 who had been working for the 3rd accused that day, rushed to the scene, and accused 3, 4 and 5 caught hold of P.W.1. Seeing this, Kuttiappu advanced towards the 3rd accused and seized his hands. The 1st accused then advanced towards Kuttiappu, but the latter pushed him away. The 1st accused then drew his knife and stabbed Kuttiappu on the left chest. The 1st accused then advanced towards P.W.1 and stabbed him on the abdomen and on the back. The second accused too stabbed P.W.1, but the latter warded off the stabbing, injuring his hands in the process. The 2nd accused then came to Kuttiappu and stabbed him on the back. All the accused then departed from the scene. Information reached P.W.14, the Sub Inspector, at about 8 p.m. that night, that two men were lying on the road with injuries. He came to the scene and conveyed P.W.1 to the Hospital; Kuttiappu had died already. He recorded the first information, Ext. P.1 from P.W.1 at the hospital at about 9 p.m. Later in the night, the Magistrate who was summoned recorded Ext. P.2 a dying declaration from P.W.1. The inquest over Kuttiappu''s body, and its postmortem examination were conducted on the next day. On the 13th March 1958, accused 1, 2, 4 and 5 appeared before the police Station and produced the knives, M. Os. 2 and 3. Three days later the 3rd accused also appeared at the police Station. After investigation was completed, the charge sheet was laid on the 28th March 1958.

Accused 1, 2, 4 and 5 denied their presence at the occurrence. The 3rd accused pleaded, that P.W.1 belaboured him and he fell on the ground, and that when P.W.1 and Kuttiappu advanced towards him saying that they would kill him, he rose to his foot and ran home, and did not know what happened. The learned Sessions Judge found, that Kuttiappu died as a result of the injuries inflicted on the chest by the 1st accused, but gave the benefit of doubt to the 2nd accused as to whether he inflicted the two injuries on Kuttiappu before or after his death. He also found that the 1st accused was responsible for causing the abdominal injury on P.W.1, but as for the remaining four injuries sustained by him he came to the conclusion that they were caused by accused 1 and 2, without satisfying which of them caused particular injuries. He also came to the conclusion that P.W.1 and Kuttiappu were aggressors and accused 1 and 2 had the right of private defence, but that both of them had exceeded their right and therefore were liable to be convicted. The convictions were based on these findings.

It may at once be stated, that on the finding recorded, the 2nd accused is not liable to be convicted. His conviction was in respect of the injuries sustained by P.W.1; but the finding as stated above, was only generally, that accused 1 and 2 caused injuries 2 to 5. The case of the prosecution itself was that when P.W.1 warded off the stabbing by the 2nd accused, he injured his hands. The injuries on the hands were stated by the doctor to be trival. Assuming therefore that the 2nd accused inflicted injuries on P.W. 1 with his knife, there can arise no question of his having exceeded the right of private defence on the finding that P.W.1 was an aggressor. u/s 101I.P.C. the 2nd accused''s right of private defence extended to the voluntary causing of any harm other than death. So, it is quite clear, that the 2nd accused''s conviction cannot be supported.

The Medical evidence has proved, that Kuttiappu sustained a fatal injury on his chest, and that P.W.1 sustained an abdominal injury. The latter was under treatment in the hospital for more than 30 days. These injuries were found to have been inflicted by the 1st accused. This finding rests upon the testimony of P.W.2 and upon Ext. P.6. The deposition of P.W.4 in the committing court has been treated by the learned Judge as substantive evidence u/s 288, Criminal Procedure Code. It may be mentioned at this stage, that the version of P.W.1 both in Exts. P.1 and P.2 was not in full accord with the prosecution case, and in any event, P.W.1 did not adhere to the version in them at the trial and did not also support the prosecution case, by his testimony. Exts. P.1 and P.2 cannot therefore be used for the purpose of corroboration, and the learned Judge rightly discarded the evidence of P.W.1.

At the. trial in the Sessions Court, P.W.4 did not support the prosecution, but had a different story to tell. He was therefore permitted to be cross-examined as a hostile witness by the Public Prosecutor, and to be contradicted by a few statements, made by him in the committal court. He answered, that he did not remember having made them, whereupon the deposition itself, and not the statements merely, was proved through him, and marked by the learned Judge as Ext. P.6. The prosecutor then submitted, that Ext. P.6 may be treated as substantive evidence u/s 288criminal Procedure Code, and this submission was recorded in the deposition. One or two more statements in Ext. P.6 were then put to P.W.4, and he gave a similar answer as before. He was then cross-examined as to other statements which he had made in chief examination in describing the occurrence, challenging him, that he had never made them at any time previously. The counsel for accused 1, 2, 3 and 5 cross-examined P.W.4 not on Ext. P.6 either directly on its contents, or indirectly as to the circumstances under which he happened to make it. At the final hearing, apparently, the Prosecutor insisted upon Ext. P.6 being read as a substantive evidence, and the learned Judge, in paragraph 13 of his judgment, summarised the material statements in Ext. P.6, with some of which P.W.4 had been confronted by the Prosecutor, and reached the conclusion, which he stated in these terms: "It seems to me, that his evidence in the lower court has to be treated as substantive evidence in this case". This was how Ext. P.6 came to be relied on by the learned Judge, for entering the conviction against accused 1 and 2.

The learned counsel for accused 1 and 2 opposed the reception of Ext. P.6 as substantive evidence, chiefly on two grounds, firstly, that material statements in it had not been put to P.W.4 and no opportunity afforded to him to explain them and secondly, that the learned Judge did not give notice of his intention to treat Ext. P.6 as substantive evidence; to counsel for the accused, who therefore did not cross-examine P.W.4 upon Ext. P.6. It was urged, that the submission of the Prosecutor in the court below, adverted to above, was by itself, of no avail, for it was for the court, to decide, whether the submission could be acted upon, and if so, to notify the accused of its decision. The general principle implicit in the definition of the term "evidence" in Section 3of the Evidence Act, is that a Court can act only on the evidence given before it; Section 288has made a departure from this, and has therefore to be carefully applied. It has to be observed, that in spite of several judicial decisions, which have laid down the conditions for the application of the provisions of Section 288, Courts of Sessions and Public Prosecutors alike, have not always been alive, to the need for strict compliance with them. Whatever divergence of judical opinion there had been in the past, it is now settled by the decision of the Supreme Court in Tara Singh v The State, AIR 1951 S. C. 441, that in applying Section 288it is the duty of the Prosecutor to confront the witness with those parts of his deposition in the committing court, which are to be used for the purpose of contradicting him, the object being as u/s 145of the Evidence Act, to afford an opportunity to him to explain the incosistency between his statements. If he denies having made the statements with which he is confronted the need for inviting a further explanation from him may hardly arise, because the denial itself constitutes his explanation, for what is worth; if however, he. merely expresses his inability to remember having made such statements, then upon proof of them, or of his deposition, I consider, that it is the duty of the Public Prosecutor to give him a chance to explain the inconsistency in the statements which he had made, for, by only asking him whether he had not made those statements, he could not be expected always to give his explanation if any. Confronting with previous statements, must be with a view to enable the witness, to explain the inconsistency in his statements. In the present case, the Prosecutor had called upon P.W.4 only to answer, whether he had not made certain statements specified by him in Ext. P.6 and did not proceed further when he answered, that he did not remember having made them. The Prosecutor did not also confront P.W.4 with several material statements in Ext. P.6 which form an integral part of the prosecution case, as he ought to have done (see Kunjukrishna Pillai v Sarkar 19 T. L. J. 1402), but contended himself, with putting to him only those pertaining to the specific acts attributed to the accused. This may be regarded as sufficient, if the object was only to destroy his testimony in the Sessions Court, but not for treating the entire evidence recorded in the committing court as substantive evidence, at the trial. This, I take it, is the result of the rule in Tara Singh''s case.

More serious than this was contended to be the omission of the learned Sessions Judge, to decide, at least before the examination of P.W. 4 was completed, whether Ext. P.6 was to be treated as substantive evidence, whatever be the value which he may attach to it, later on, and to notify the defence of his intention so to do, if he had formed it. It is well settled that in applying S. 288, the Sessions Judge must give notice of his intention, both to the prosecution and to the defence, in order that the cross-examination of the witnesses may be directed suitably -- Nagina v Emperor AIR 1921 Allahabad 215 at p.216, AIR 1948 344 (Nagpur) , Mahabir v The State ILR (1951) 1 Rajasthan 245. In the case last cited, there is also a discussion by Wanchoo C.J., as he then was, as to the stage at which the Judge ought to give notice of his intention. He observed as follows:--"We are of opinion, that it is desirable that a request for admission of such a statement under S. 288, should be made while the witness is in the witness box, or just after his evidence is over. The mere fact, that such a request is made at a late stage, would not, by itself mean that the evidence should not be looked into under S. 288of the Code". On the question of notice of the Judge''s intention to treat the evidence under S. 288the learned Judge said: "But we would like to point out that the better course for the Sessions Judge would have been to make an order to that effect, while the witness was in the witness box, or just after his evidence". It was not disputed before me, that it is a question of fact in each case, whether the accused had notice of the Judge''s intention, to apply Section 288. In the case before the Rajasthan High Court, such notice was inferred from two circumstances, viz. that the entire statement in the committing court was read over to the witness, when he admitted having made it, adding, that it was false in material particulars, having made it under pressure from the police and that he was cross-examined by counsel for the accused, both on his statement in the committing. Magistrate''s court, and on his statement in the Sessions Court. In my opinion, the proper stage for the Judge to notify the accused of his intention, is before the examination of the witness is completed, and not just after it, so as to obviate the need for a further cross-examination by counsel for the accused.

In the present case, the Prosecutor had acted properly in submitting to the court white the cross-examination of P.W.4 by him was proceeding, for treating Ext. P.6 u/s 288, but the Judge appears to have postponed his decision on the submission, and in any case, if he had formed a decision, to have failed to notify it to the defence. As already observed, no cross-examination was directed as in the Rajasthan case, towards Ext. P.6. There is therefore no material before me, upon which it may be concluded that the accused had notice of the learned Judge''s intention, if any, to apply Section 288to Ext. P.6.

I have dealt with these contentions advanced before me at such length as instances are not wanting where Judges and Prosecutors have failed to conform adequately to these requirements of law, as remarked earlier. Decided cases on the subject have prescribed further conditions too, for applying Section 288, but as they have not been raised at the hearing, I do not advert to them. In the present case, for the reasons stated above I accept the contention of the learned counsel, that Ext. P.6 cannot be read as substantive evidence in the case.

The prosecution is therefore left with the sole testimony of P.W.2. This was attacked chiefly on the ground, that he was only a chance witness, procured for the prosecution at a late stage of the investigation. He was interrogated by P.W.15, the Circle Inspector of Police, on the 16th March, 1958. It appears that P.W.2 had not mentioned to any one, that he had witnessed the incident; P.W.15 offered the explanation, that after interrogating P.W.6, he came to know, that P.W.2 was an eye-witness to the occurrence, but that he could not be contacted earlier, as he was in the hospital, attending upon some one who was sick. But P.W.6 was no eye-witness to the occurrence, and the explanation of P.W.15, is therefore hardly acceptable. P.W.2 admitted, that though he knew P.W.1. and Kuttiappu before, it was only on that evening that he saw the accused for the first time, and yet he was able to attribute specific acts to each of the accused. P.W.1 did not mention the name of any witness in Ext. P.1 but did mention a few possible witnesses in Ext. P.2 and P.W.2 was not one of them. It is therefore unsafe, to base a conviction on the sole testimony of P.W.2.

It is no doubt true, that accused 1 and 2 have denied the occurrence in its entirety. The defence examined D.W. 1 for the purpose of proving the version put forward by the 3rd accused but was rightly disbelieved by the learned Judge, and his evidence was not relied on before me. But the prosecution has to fail for want of proof. The result is, that the convictions of accused 1 and 2 are hereby quashed, and they are set at liberty, if not wanted on any other charge. The directions regarding the disposal of the M. Os. made by the learned Judge, will stand. The appeals are therefore allowed.