Raman Pillai and Others vs State of Kerala

Anna Chandy, J.—Accused 1 to 3 brothers, accused 4 their father, accused 5 their mother and accused 6 their sister have all been tried under Sections 148, 149, 326, 341 and 294 I.P.C. by the Nedumangad First Class Magistrate who acquitted accused 4 to 6 of all the charges and convicted accused 1 to 3 u/s 326 and 324 I.P.C. The three convicted accused unsuccessfully appealed before the Trivandrum Additional Sessions Judge and are now seeking to get the order vacated in revision. The prosecution alleges that long-standing disputes existed, between the accused and P.W. 1 the son of the 4th accused''s deceased brother Gangadharan Pillai, regarding the title and possession of 1 acre and 88 cents of land. Accused 4 filed a suit against P.W. 1 and his brother and obtained a decree declaring his title to half the property and possession of the whole. Accused 4 appealed against the decree to the District Court and obtained an injunction restraining P.W. 1 and others from entering the properties. In spite of the order of injunction, they were disturbing the possession of the accused and the fourth accused had to petition the Executive First Class Magistrate on 10-4-1963. The petition was endorsed to P.W. 10 the Sub-Inspector of Police Kattakada for enquiry and report, on the forenoon of the date of incident i.e. 16--4--1963 the Sub-Inspector went to the property in the company of accused 4 and two police constables and finding the brother of P.W. 1 engaged in preparing the land for cultivation, the Sub-Inspector questioned him and asked him to go over to the station with the records of the civil case.

The prosecution case is that at about 2 P.M. the same day while P.W. 1 was passing by the lane near the accused''s house, the fourth accused called out "here he is coming" when accused 1 to 3 rushed out. Accused 1 asking him whether he wanted the property, cut him thrice with a chopper on the lower part of his right leg almost at the level of the ankle and caused three lacerated injuries and fracture of the tibia and accused 2 gave a blow with the handle of an axe above the left eye on the forehead. When P.W. 1 fell down, accused 3 cut him with a chopper on his right and left knees and left thumb. After that accused 4 to 6 went to the lane and tied P.W. 1''s hands and took him to the courtyard and laid him there. Then accused 4 kicked him forcibly on the abdomen. Thereafter accused 1 and 3 cut and destroyed about 10 to 15 plantain trees in the compound and accused 4 pulled down some kadjans from the roof of the house and set fire to it. Accused 5 put out the fire by pouring water.

The version of the accused is that P.W. 1 and his brother Sivasankara Pillai who were very much annoyed at the police enquiry in the forenoon trespassed into the accused''s Elankam house in the afternoon, P.W. 1 being armed with a chopper. They called out to accused 4 and others to come out of the house, and when they refused to come out, P.W. 1''s brother set fire to the house saying "they would stir out only if they are smoked" and P.W. 1 chopped off some 10 to 15 plantain trees in the accused''s compound. Accused 1 who was just then returning home for his noon meal chased out P.W. 1''s brother and fell down in the attempt. P.W. 1 then aimed a cut at accused 1 which was thwarted by accused 2 with the axe-handle. P.W. 1 attempted to cut accused 1 when he in the fallen condition waved the chopper and cut P.W. 1 on his leg. P.W. 1 fell down and sustained injuries on his knees. Accused 3 was not there at all. Accused 4 then went to Kattakada Police Station and reported the matter to the Head Constable P.W. 9 who keeping him at the station went to the house of the accused and the next day brought accused 5 and 6 also to the station. Four defence witnesses were examined in support of the defence case.

The learned advocate for the defence attacks the appellate judgment as being not in conformity with the provisions of section 367 of the criminal procedure code. The attack appears to be well-merited. The points for determination are not raised and there is no consideration of the prosecution evidence worthy of mention. The learned judge was concentrating more on the defects of the defence case and the defence evidence. Whatever little reference to the prosecution evidence there is, is ineffective as there a failure to appreciate that evidence in the light of general probabilities and the salient circumstances that have come out. Witnesses can and do easily perjure, but circumstances properly established rarely mislead. Witnesses are not averse to bury grains of truth in high heaps of chaff of untruth. The paramount duty of every court in such circumstances is to separate the grain from the chaff on a careful and scrupulous analysis and if that is not possible to give the benefit of it to the accused lest the innocent be convicted.

This court has time and again tried to impress upon the lower courts the necessity to bear in mind the provisions of section 367, Criminal procedure Code when writing judgment (vide) Chellappan Nair v. State (1960 KLT 965) and Bharathan Pillai v. State of Kerala (1963 KLT 1060). Where the appellate court agrees with the judgment of the trial court and dismisses the appeal, it may not be necessary for that court to write a lengthy and elaborate judgment, but there seems to be no doubt that the judgment should be independent and self-contained so that it may indicate that the appellate court had considered the case in the proper perspective and the High Court in revision may be able to follow it without reference to the trial court judgment. As observed by Horwill J. in In re Bonthu Appadu (A.I.R. 1943 Mad 66):

It is even more essential that an appellate court should give reasons for its orders than that the trial court should do so; for in the latter case the accused has a remedy by way of appeal before a tribunal which has to consider questions of fact as well as of law. In revision, on the other hand, findings of fact are ordinarily accepted.

I am aware that the High Court is not invariably bound to interfere in revision because there is an irregularity in the form of a judgment unless there is reason to believe that there has been a failure of justice. In this case I am convinced that there has been such a failure. The normal practice would be to send back the case to the appellate court for rehearing. But in this case where there is an imposing array of circumstances which point to the truth of the defence case and in the unacceptable nature of the prosecution evidence, I am not for unnecessarily harassing the accused and am inclined to dispose of the case here. In this connection it may be pertinent to refer to the following observation of the Supreme Court in Jumman and Others Vs. The State of Punjab, :

The Supreme Court is, in criminal appeal under special leave ordinarily bound by the finding of fact arrived at by the High Court; but if it is found that the High Court has not dealt with the appeal as it should have, the Supreme Court will proceed to hear the appeal 08 the evidence.

Before dealing with the evidence of the two eye-witnesses it is highly necessary to refer to a few circumstances. In the nature of the defence plea in this case, it was of paramount importance to have fixed the scene of incident. The learned Judge made an attempt to consider the question and observed :

According to P.W. 1, the incident must have happened at the place nearest to the Elankam house shown in the plan. But P.W. 2 deposed that the incident occurred at the place where it turns to the south. Ext. P. 3 scene mahazar also is not very definite on the exact scene of occurrence and the place from where M.O. III was taken.

and left it at that without solving the problem perhaps the line of least resistance was adopted.......

The non-mention of the arson and cutting of the plantain trees in the First information Statement by P.W. 2 and the presence of blood in the chopper said to have been used by accused 1 to cut 10 to 15 plantains is sure indication that the arson and cutting of plantain palms took place before the weapon was used against P.W. 1 and not after it. The learned Judge as well as the Magistrate assumed that there was no blood since the weapons were not sent for Chemical Analysis and finds fault with the Head Constable for noting the existence of blood "in the usual manner". This is rather a strange approach.....................

The curious procedure adopted by the Head Constable in registering the case and recording the first information only strengthens this inference.........................

Some puzzling features about the injuries on P.W. 1 also indicate the falsity of the prosecution story.........

The motive was also for P.W. 1 and his brother to be on the aggressive and not the accused..............

Instead of meeting the any of circumstances which go against the truth of the prosecution case the learned Judge seeks to answer them by the rather strange observation in para 13 of the judgment that:

The ingenuity of weaving a defence version consistent with the injuries on the victim and coinciding with some facts of the prosecution case, would not make the defence version ipso facto true and acceptable, if, as a matter of fact, the incident had happened otherwise.

This seems to be a conundrum that runs counter to the observations of the Supreme Court in AIR 1956 Supreme Court 217 that:

When an accused person offers a reasonable explanation of his conduct then even though he cannot prove his assertion they should ordinarly be accepted unless the circumstances indicate that they are false.

The burden of proof to establish the guilt of the accused is ever on the prosecution and no plausible criticism of the defence evidence or the failure of the accused to establish his innocence should be deemed as sufficient evidence to discharge that burden.

It is in this background that we have to appreciate the evidence of the eye-witnesses.........................................................

The intrinsic infirmities of their evidence coupled with the improbable story that they are speaking to ought to induce any court to discard their evidence. The order of conviction of the accused has only to be set aside. The revision is allowed and the conviction and sentence passed against the accused are set aside. The bail bonds executed by the first accused are cancelled. The fine if realised from accused 2 and 3 will be refunded to them.