State of Kerala vs Shiyas and Another

V. Dhinakar, J.—State is the appeillant and aggrieved by the order of acquittal passed against the Respondents, who will be referred to as A-1 and A-2 in this judgment, the Appellant/State has chosen to prefer the present appeal.

Accused 1 and 2 were tried before the Sessions Judge, Thodupuzha on a charge that they in furtherance of their common intention caused the death of Kareem by the first accused stabbing him with a knife, M.O. 1, on his left axilla and chest on the instigation of his father A-2.

Few facts necessary to dispose of the appeal can be briefly summarised as follows: A-1 is the son of A-2. A-1 was running an autorickshaw. On 25th April 1992 at about 8 p.m. the deceased and his friends, P.Ws. 2, 3 and C.W. 4 were talking by the side of a junction where Madathikandom road starts. The accused were proceeding from Puthuchira road. They questioned the witnesses and the deceased as to why they should stand on the road, for which the deceased replied that the road does not belong to their father. There was exchange of words between the deceased and the accused for some time. A-2 then attempted to beat the deceased, which was warded off. Then A-2 asked A-1 to stab him. A-1 took out M.O. 1 knife from his waist and stabbed the deceased twice and inflicted injuries on the left axilla and chest. Sustaining the injuries, the deceased ran towards his house; but fell on the school ground on the way. In the meanwhile, P.W. 1, the brother of the deceased heard an altercation rushed to the scene of occurrence and saw the deceased lying on the school ground. He then removed the deceased to the Government Hospital, Thodupuzha, where after examination, the deceased was pronounced dead. Intimation was thereafter sent to the police authorities. On receipt of intimation, P.W. 9, the Head Constable rushed to the Government Hospital, Thodupuzha and recorded Ext. P-1, the statement of P.W. 1 at 10.30 p.m. He then returned to the Police Station and registered a casein Crime No. 214/92 under Ext. P-1(a), the First Information Report. Express reports were then sent to the higher officials. On receipt of the express F.I.R. P.W. 11, the Circle Inspector, took up investigation. He went to the Government Hospital, Thodupuzha and conducted inquest over the dead body between 9.30 and 11.30 a.m. on 26th April 1992 in the presence of Panchayatdars. P.W. 4 signed in the inquest report, Ext. P-2. He then prepared the scene mahazar, Ext. P-3 attested by P.W. 5. He sent the dead body with a requisition for postmortem.

On receipt of the requisition, P.W. 7, the Assistant Surgeon, Government Hospital, Thodupuzha conducted postmortem over the dead body of Kareem and found the following antemortem injuries:

Out injury on the chest 10 cm. above the nipple left side 2x0.5x1 cm.

Piercing injury 5 cm. below left axilla 5x2 cm. directed downwards and anteriorly piercing the 5th left intercostal space. Opening the thoracic cavity, pool of blood in the thoracic cavity (1 Lr.) piercing injury left 5th intercostal space above mid axillary line, lung upper lobe left side pierced 3x2.5 cm.

He was of the opinion that the deceased died on account of shock due to the loss of blood on account of injury No. 2. He also opined that the injuries found on the deceased could have been caused with a weapon like, M.O. 1. Ext. P-5 is the postmortem certificate.

In the meanwhile A-1 and A-2 who also sustained injuries rushed to the Government Hospital, Thodupuzha and P.W. 7, the doctor, examined A-1 and found on him a lacerated wound on the scalp frontal region 4x0.5 cms and swelling lower end of right forearm 4x3 cms. X-ray examination of the injuries showed fracture of ulna. The alleged cause of injuries as stated by A-1. is that . He also examined A-2 and found on him a lacerated wound scalp, frontal region reaching the skull 6 cm long. He was complaining of pain all over the chest. Alleged causes of injuries as given by A-2 was Exts. P-6 and P-7 are the wound certificates issued in respect of A-1 and A-2 and the assailants noted in the, said wound certificates are none other than the deceased3, P.Ws. 2, 3 and C.W. 4 and Ors. . A-2 was then referred to the Medical College Hospital, Kottayam as the injuries found on him were very serious.

In the meanwhile, P.W. 11 continued his investigation and had Ext. P-8. scene plan, prepared through P.W. 8, the Village Officer.

On the direction of the Deputy Superintendent of Police, Thodupuzha, P.W. 10, took up further investigation. During the coursc of his investigation, the first accused was arrested on 28th May 1992 after he was discharged from the hospital. The shirt, M.O. 2, worn by him was recovered under a mahazar, Ext. P-10. The first accused then took the police party to a bunk belonging to one Pareed and from beneath the roof tiles, he took out M.O. 1, knife and handed over the same to P.W. 10. The same was recovered under a mahazar Ext. P-4 attested by P.W. 6.

P.W. 11 thereafter took up investigation from P.W. 10 and after verifying the invetigation conducted by P.W. 10 and after obtaining the Chemical Analyst''s report through Court, P.W. 11 laid a final report against the accused.

When questioned u/s 313 Code of Criminal Procedure the accused denied their complicity. They stared that there was prior enmity between them and P.Ws. 2, 3 and C.W. 4 and the deceased. They stated that there were a number of criminal and civil cases between them. According to the accused, P.W. 3 hired the autorickshaw belonging to the firist accused and when he refused to wait at his house, they caused damage to the vehicle by cutting with a blade. The matter was brought to the notice of the police authorities and there was enmity ever since that date. According to them, when the accused reached Madathikandam road junction, P.Ws. 2, 3, C.W. 4 and the deceased, who were concealing themselves benind the shrubs rushed towards them and inflicted injuries on them by beating, hitting and stabbing and that they sustained injuries including fracture of the spine of A-2 and arm of A-1. They were treated as inpatients for several day. They also marked Exts. D-1. to D-4. The learned Sessions Judge, on evaluation of the evidence, came to the conclusion that the accused are entitled for an acquittal as the prosecution suppressed the genesis and origin of the case.

The learned Public Prosecutor appearing for the Appellant/State took us through the evidence and contended that the learned Sessions Judge ought to have accepted the evidence of P.Ws. 2 and 3, the eye witnesses and convicted the accused. We heard counsel for the Respondents.

It is not in dispute that the deceased Kareem died on account of homicidal violence and the said fact stands proved through the evidence of P.W. 7, the postmortem doctor and the postmortem certificate, Ext. P-5. All that we have to decide is whether the evidence of P.Ws. 2 and 3 can be accepted and acted upon to set aside the acquittal passed by the learned Session Judge. It is a well settled principle of law that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusion arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disbursed. (Vide Ramesh Babulal Doshi Vs. State of Gujarat, Similarly, in Dhanna v. State of Madhya Pradesh AIR 1996 S.C. 2478 the Supreme Court observed as follows:

Though the Cede does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusions whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind: first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him lie would retain that benefit in the appellate Court also. Thus, appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed

Keeping these principles in mind, when we analyse the evidence of P.Ws. 2 and 3, we have to state that their evidence cannot be accepted and acted upon to disturb the findings of the acquittal entered against the accused. According to P.W. 7, the Assistant Surgeon, Government Hospital, Thodupuzha, he examined the accused at 8.30 p.m. on 25th April 1992 and found injuries on both of them and that the X-ray examination revealed fracture of ulna of the first accused, He has further testified that after examining A-2, he referred him to the Medical College Hospital, Kottayam for better treatment as the injuries noted on A-2 were very serious. When P.W. 11 was in the box he also admitted that a counter complaint was given by the second accused and the same was registered as a crime. The prosecution, for the reasons best known to it, did not produce the counter complaint given by the second accused. When witnesses were questioned, whether the accused sustained injuries at the time of the occurrance, they have flatly denied, though P.W. 11, the investigating officer has sworn to the effect that A-1 and A-2 sustained injuries on the same day, place and time and those injuries were inflicted by P.Ws. 2, 3 deceased and C.W. 4 and Ors. . The evidence adduced in the case show that the injuries sustained by the accused are very serious. It is the duty of the prosecution to explain the injuries found on the accused and there is no dispute that none of the witnesses have explained the injuries found on the accused. The witnesses have suppressed the material facts before the Court. The learned Sessions Judge was justified in coming to the conclusion that P.Ws. 2 and 3 were not telling the truth on material aspects and that their evidence cannot be accepted and acted upon.

As held by the Supreme Court in Lakshmi Singh and Others Vs. State of Bihar, in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance. The non-explanation can lead to the following inferences, namely, that the prosecution has suppressed the genesis and origin of the occurrence and has thus not presented the true version; that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. As the witnesses have suppressed material points, we feel that the learned Sessions Judge was justified in rejecting the evidence of P.Ws. 2 and 3. The order of acquittal needs no interference. The appeal is therefore liable to be dismissed and it is accordingly dismissed.