Ramakrishnan Nair alias Raju vs State of Kerala

Arijit Pasayat, C.J.—Conviction and sentence in terms of judgment of learned Sessions Judge, Kottayam are assailed in this appeal by Ramakrishnan Nair alias Raju (hereinafter referred to as ''accused''). Learned trial Judge found accused guilty of offence punishable u/s 302 of Indian Penal Code, 1860 (in short ''IPC'') and sentenced him to imprisonment for life.

Prosecution version as unfolded during trial is as follows: On 26-12-1995, there was a festival at the Vilakkumadam Bhagavathy Temple on Vilakkumadam --Chathankulam road. While ''parayeduppu'' in connection with festival was going on, an altercation ensued between accused and one Vijayan (P.W. 4) at about 8.30 p.m. When accused stabbed P.W. 4, deceased intervened and snatched the knife from him. On account of this, accused was nursing a grudge against deceased. At about 10 p.m. accused was standing in front of the shop of one Rajappan located near the temple. At-that time, deceased along with Sivan (P.W. 2) and Chandra Mohan (P.W. 3) came there on a motor cycle. On seeing the deceased, accused abused him. Sensing danger, deceased left, the scene and walked along the road towards the east. Accused followed him and when the deceased reached in front of Manickothu Veedu, accused put his hand around his shoulders, brought out a knife from his waist and stabbed the deceased on his throat. When the deceased tried to get hold of him, accused stabbed him on his chest and both of them fell down. P.W. 2 and others tried to get hold of accused. They retreated on being threatened by accused, who again stabbed the deceased several times. Thereafter he ran away with the bloodstained knife. Deceased was taken to Medical College Hospital, Kottayam. On the way, he succumbed to injuries. Attending doctor (P.W. 6) examined the deceased and pronounced him dead. Radhakrishnan (P.W. 1) lodged information at Pala Police Station and investigation was undertaken. On completion of investigation, chargesheet was submitted. Sixteen witnesses were examined to further prosecution version. Accused did not lead any evidence in support of his stand of innocence and false implication. Placing reliance on the evidence, especially those of the eye witnesses, learned trial Judge has convicted and sentenced accused as aforesaid.

In support of the appeal, Smt. Usha Venugopal, learned counsel for accused, raised several contentions to submit that prosecution has failed to establish its case. Firstly, it was contended that P.Ws. 2 and 3 are relatives of the deceased and, therefore, their evidence should have been discarded. Secondly, certain injuries noted on the deceased have not been explained and so prosecution version is suspect. Thirdly, it was submitted that plea of right to private defence has not been properly appreciated by learned trial Judge. Finally, it is submitted that this is not a case coming u/s 302, IPC and merely because several injuries existed, that cannot be a ground to apply Section 302, IPC. Learned Public Prosecutor of the State submitted that each of the points raised has been properly dealt with by learned trial Judge.

Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

In Dalip Singh and Others Vs. State of Punjab, , it has been laid down as under :--

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not in sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

This decision has since been followed in Guli Chand and Others Vs. State of Rajasthan, in which Vadivelu Thevar Vs. The State of Madras, was also relied upon.

We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by Apex Court as early as in Dalip Singh Vs. The State of Punjab, in which Apex Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives we''re not independ-entwitnesses. Speaking through Vivian Bose, J., the Apex Court observed:

We are unable to agree with the learned Judges of the High Court that the testimony of the two eye-witnesses requires corrobora-tion. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rules. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another bench of this Court endeavoured to dispel in Rameshwar Vs. The State of Rajasthan, . Wefind, however, that it unfortunately still persists, if not in the judgment of the Courts, at any rate in the arguments of counsel.

In this case, Apex Court further observed as under:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused such an enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal causes for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.

Again, in Masalti Vs. State of U.P., , Apex Court observed:

Again it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.

To the same effect is the decision of Apex Court in The State of Punjab Vs. Jagir Singh, Baljit Singh and Karam Singh, .

In the case at hand, evidence of P.Ws. 2 and 3 has been analysed at length and found to be credible and cogent. Therefore, learned trial Judge was justified in placing reliance on their evidence. There is no dispute that a person lost his life. That being so, normal human behaviour would be to expose the real culprits and not to shield them. A relative, instead of being a partisan witness is normally supposed to be impartial and bring real culprits to face trial and not to let loose them to rope in innocent persons.

Second plea relates to non-explanation of injuries on accused. Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the affect of the omission on the part of prosecution to explain the injuries. As observed by Apex Court in Ramlagan Singh and Others Vs. State of Bihar, , prosecution is not called upon in all case to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh and Others Vs. State of Bihar, , it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. Prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to him to throw doubt on veracity of prosecution case.

Third plea relates to the question of private defence. So far as the plea of right of private defence is concerned, it was urged by learned counsel for the State that such a definite plea was not taken. In the cross-examination of the witnesses or in the explanation u/s 313, Code of Criminal Procedure, 1973 (in short ''the Code''), no plea of right of private defence was taken. It is, however, trite law that even in the absence of such plea, if circumstances so reveal about such right the Court can consider that. The law relating to right of private defence was succinctly stated by the Apex Court in Deo Narain Vs. The State of U.P., with reference to scope of ambit of Section 102, IPC. According to that Section, right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant danger. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. The right to punish for the commission of offences vests in the State (which has a duty to maintain law and order) and not in private individuals. If after sustaining a serious injury there is no apprehension of further danger to the body, then obviously the right of private defence would not be available. No material whatsoever has been brought on record to substantiate plea that accused >was acting in exercise of his right to private defence. That plea is also without substance.

Final and last question relates to the applicability of Section 302, IPC.

In the scheme of IPC, ''culpable homicide'' is genus, and ''murder'' is the specie. All ''murder'' is culpable homicide but not vice versa. Speaking generally, ''culpable homicide'' sans special characteristics of murder is ''culpable homicide not amounting to murder''. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, IPC practically recognises three degrees of culpable homicide. The first is, what may be called, culpable of the first degree. This is the gravest form of culpable homicide which is defined as ''murder'' in Section 300. The second may be termed as ''culpable homicide of the second degree''. This is punishable under the First Part of Section 304. Then there is ''culpable homicide of the third degree''. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable u/s Part of Section 304. The academic distinction between ''murder'' and ''culpable homicide not amounting to murder'' has vexed the Courts for long. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299 Section 300 A person commit Subject to certain ex- culpable homicide ception homicide is if the act by which murder, if the act by the death is which the death is done caused is done INTENTION (a) with the inten- (1) with the intention of tion of causing causing death; or death; or (b) with the inten- (2) with the intention of tion of causing causing such bodily in- such bodily injury jury as the offender as is likely to cause knows to be likelv to death; or cause death of the per- son to whom the harm is caused; or (3) with the intention of causing bodily inj ury to any person and the bod- ily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or KNOWLEDGE (c) with the knowl- (4) with the knowledge edge that the act that the act is so immi- is likely to cause nently dangerous that it death. must in all probability cause death or such bod- ily injury as is likely to cause death, and with- out any excuse for in- curring the risk of caus- ing death of such injury as is mentioned above. (Underlining for emphasis)

In the case at hand, more than two dozen injuries were noticed and good number of them have been described by the doctor as sufficient individually to cause death. That being the position, Section 302, IPC was clearly applicable.

The inevitable conclusion is that the judgment suffers from no infirmity. Criminal appeal is dismissed.