Sadanandan @ Seelamony vs State of Kerala

Pareed Pillay, J.—Appellant is the accused in S.C. 56 of 1986 of the Additional Sessions Court, Pathanamthitta. He stood charged u/s 302 of the I.P.C. for having caused the murder of Sasi on 4th February 1986 at about 6.15 p.m.. The learned Additional Sessions Judge found him guilty of the charge and convicted and sentenced him to undergo imprisonment for life.

Deceased Sasi had borrowed Rs. 100 from the accused. Sasi did not return the amount. Sasi went to the timber depot where accused was employed. There was exchange of words between accused and deceased culminating in a tussle. Shirt worn by Sasi was torn during the incident. That incident was at 5.30 p.m. Accused went to his house near a place known as "Boundary". Prosecution case is that while accused1 was sitting on a stone at the place of occurrence Sasi came in and bus and on seeing the accused he (Sasi) went near the accused and Sasi asked the accused raising both hands and challenging the accused to stab him. Accused stating that he would do so stabbed Sasi in front of his chest with a knife and ran away P.W. 1 on getting information about the incident came to the place of occurrence and found Sasi lying in a pool of blood with injury on his chest. P.W. 1 proceeded to the Chittar Police Station and lodged Ext. P-1 first information statement to P.W. 16 Sub Inspector of Police. On the basis of that statement P.W. 16 prepared Ext. P-1 (a) first information report. Investigation of the case was taken by P.W. 17 Circle Inspector. He prepared Ext. P-9 inquest report. Dead body was sent to the Government Hospital, Pathanamthitta- Autopsy was conducted by P.W. 9. Ext. P-8 is the post-mortem certificate.

Prosecution examined P.Ws. 2 and 15 as eye witnesses of them, the latter turned hostile to the prosecution. P.Ws. 3 and 4 were cited by the prosecution to prove that they saw the accused with bloodstained knife. They also turned hostile to the prosecution. Thus, there is only the evidence of P.W. 2 to bring home the guilt of the accused.

P.W. 2 deposed that he came to the place of occurrence in a bus and got down at boundary junction, that he did so to go to Madamon, that deceased Sasi and four to five persons alighted from the bus, that he purchased cigarette from a shop, that he heard a commotion, that he saw Sasi raising his hands and telling the accused to stab him and that the accused stabbed Sasi on his chest with a knife. P.W. 2 has identified the knife as M.O. 6. It is also stated by P.W. 2 that Sasi asked for water and Asokan (P.W. 15) took water from a nearby water tap and gave water to the deceased. P.W. 15 also tried to bandage the wound with the help of a flag.

Though P.W. 15 stated that he saw the incident resulting, in the death of Sasi, he did not attribute any overt act to the accused. He stated that while he was standing in the shop of P.W. 4 deceased came there in a bus and got down from it and went near the accused and asked him whether he would beat him (deceased). It is also stated by him that both of them exchanged abusive words and were engaged in a scuffle and during the course of it they fell down. As P.W. 15 did not support the prosecution case, he was declared hostile.

P.W. 3 has a shop near the place of occurrence. He stated that he saw persons who were on the veranda of the shop running and that he came out from his shop and saw Sasi with bleeding injury. It is also stated by him that later he knew that P.W. 15 Asokan had tried to bandage the wound. He stated that he did not see the accused at the place of occurrence.

P.W. 4 who has a shop near the place of occurrence Saw Sasi lying on the road with injury. As he stated that he did not see the accused at the place of occurrence, he was declared hostile to the prosecution.

P.W. 7 was examined to prove the earlier incident. He stated that Sasi came to the Timber Depot at about 5.30 p.m., that from the conversation between the accused and the deceased he could realise that they were talking about the return of Rs. 100 and that there was exchange of words between them followed by a tussle. It is also stated by him that during the pull and push Sasi''s shirt was torn. He identified it as M.O. 9. P.W. 7 stated that accused went from there in a lorry and Sasi left there in a bus to the boundary.

P.W. 8 stated that he saw the scuffle between the accused and deceased at the Timber Depot and that Ummer and Rajan brought the accused to the road.

The prosecution chiefly relies on the testimony of P.W. 2 to establish its case against the accused. That evidence is assailed by the defence on the ground that he is a chance witness. His evidence is also criticised on the ground that his name does not find a place in the first information statement. It is also contended by the defence counsel that at any rate the accused is entitled to plea of self-defence.

Learned Counsel for the Appellant submitted that the solitary evidence of P.W. 2 is not free from suspicion as his very presence at the place of occurrence is open to doubt. The learned Public Prosecutor pointed out that there is no justification in the criticism on P.W. 2''s evidence as he has given a cogent version before the Court. P.W. 2''s evidence that he had been to his Aunty''s house and that it was on his return that he saw the incident has been accepted by the Sessions Judge. Merely because P.W. 2''s name does not find a place in the first information statement his evidence cannot be rejected. It has to be borne in mind that the first information statement was lodged by P.W. 1 who was not an eye witness.

The learned Counsel for the Appellant argued that the evidence of P.W. 2 shows that there was a commotion and as he could not say about genesis of the incident the accused is entitled to benefit of doubt. Even if the evidence of P.W. 2 does not prove the genesis of the incident or the motive, his testimony with regard to the incident cannot be rejected on that ground. In Bahal Singh Vs. The State of Haryana, the Supreme Court held that even in a case where genesis or motive is not proved the ocular testimony of the witness, if found reliable, cannot be rejected.

Relying on the evidence of P.Ws. 7 and 8 counsel for the Appellant contended that it was the deceased who followed the accused to the place of occurrence and that the deceased was drunk and therefore plea of self-defence raised by the accused cannot be lightly brushed aside. While questioned u/s 313 Code of Criminal Procedure accused did not set up a plea of private defence. Though he did not say so specifically while he was questioned u/s 313 Code of Criminal Procedure it is open to him to rely on the evidence on the prosecution side itself to uphold the contention of private defence. But from the evidence of P.W. 2 it is not possible to hold that right of private defence was available to the accused. His evidence would clearly show that the accused stabbed the deceased on a vital part of his body when there was really no danger to his life at the hands of the deceased.

M.O. 6 knife was recovered at the instance of the accused at 9 a.m. on 10th February 1986. Ext. P-10 is the mahazar. Ext. P-10 mahazar was attested by P.Ws. 11 and 13. Both of them turned hostile to the prosecution. Ext. P-10 (a) is the disclosure statement. The Analyst''s report Ext. P-13 shows that M.O. 6 contained human blood. Though P.Ws. 11 and 13 turned hostile to the prosecution, they admitted that they are witnesses to the mahazar. They also stated that they never used to put their signature in any document without understanding its significance. Viewed in the light of the evidence of P.W. 16 and also in view of the fact that P. Ws. 11 and 13 admitted that they have attested Ext. P-10 mahazar the recovery evidence cannot be held to be fabricated.

P.W. 16 Sub Inspector deposed that he questioned the accused after his arrest and on the basis of the disclosure statement Ext. P-10 (a) and as pointed out by him M.O 6 knife Was recovered in the presence of P.Ws. 11 and 13. In the cross-examination not even a bald suggestion was put to P.W. 16 that the recovery evidence in the case is fabricated. No infirmity could be pointed out against the recovery evidence. Merely because P.Ws. 11 and 13 turned hostile to the prosecution evidence of P.W. 16 cannot be ignored particularly when no adverse circumstance or infirmity could be pointed out against the recovery evidence. That being the position, evidence of P-W. 16 cannot be assailed on mere conjectures at the time when the case is argued before the Court. So long as there is nothing to hold that the recovery of the weapon (M.O. 6) is artificial or false wholesale condemnation of it on the ground that the mahazar witnesses have turned hostile to the prosecution is without any justification especially when they admitted to have attested the mahazar. The Supreme Court had occasion to deprecate the attitude of the Courts in distrusting the evidence of police officers merely because they are police officers. In Aher Raja Khima Vs. The State of Saurashtra, the Supreme Court has held that the presumption that a person acts honestly applies as much in favour of a police officer as of other persons and it is not a judicial approach to distrust and suspect him without good grounds therefor. As already pointed out, from the evidence of P.W. 16 it cannot be discerned that he fabricated the recovery evidence to falsely implicate the accused with the crime. Nor is there any evidence to hold that he abused his official position and created false evidence against the accused. In view of the failure to bring out any material to discredit P.W. 16''s evidence regarding the recovery of M.O. 6 necessary presumption can be drawn in favour of the prosecution. It is apposite to refer to what the Supreme Court has held in Raja Khima''s case. The Supreme Court said:

When at he trial, it appears to the Court that a police officer has, in the discharge of his duty, abused his position and acted oppressively, it is no doubt its clear duty to express its stem disapproval of his conduct. But it is equally its duty not to assume such conduct on the part of the officer gratuitously and as a matter of course, when there is, as in this case, no reasonable basis for it in the evidence or in the circumstances.

The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefore. Such an attitude could be neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.

As P.W. 2''s evidence shows that it was with M.O. 6 that Sasi was stabbed and as P.W. 16''s testimony discloses that it was at the instance of the accused that M.O. 6 was recovered and as the Analyst''s report shows that it contained human blood, it has to be held that the recovery evidence lends ample support to the prosecution case.

The doctor who conducted autopsy stated, that the injury No. 1 is sufficient to cause death in the ordinary course of nature. His evidence also shows that the injury could be caused by M.O. 6 weapon. This injury is an incised penetrating wound on the chest. It continued downwards and medially cutting the diaphragm in the midline for 4x3 cms. and also cutting the left lobe of liver. The Sessions Judge was justified in holding that death was due to the stab injury with M.O. 6 knife.

On going through the entire evidence, we hold that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt. The conviction and sentence against the accused are confirmed. The appeal is dismissed.