Criminal Appeal No. 1017 of 2003 · Kerala High Court · 2009

Crl.A. 1017 of 2003-:5:-reaslised was directed to be paid to P.W.2 as compensation. Itis the said judgment which is assailed in this appeal.7. I heard the Sr. Advocate Sri. Gopakumaran Nair , thecounsel appearing for the appellant and Sri.C.M. Nazar thelearned Public Prosecutor. 8.The only point which arises for consideration in thisappeal is as to whether the conviction entered and the sentencepassed against the appellant are sustainable or not ?THE POINT9.The learned Public Prosecutor made the followingsubmissions in support of his fervent plea for confirming theconviction and sentence passed by the court below:- It is true that P.W.2 has mentioned about a scufflebetween him and the accused. But that was one hour prior tothe main incident. As was rightly held by the court below, thereis no evidence to show that the accused has any right to enterthe cardamom estate of P.W.2. He was, therefore, committingcriminal trespass by entering into the cardamom estate in thepossession of P.W.2. The injury No. 1 sustained by P.W.2 who Crl.A. 1017 of 2003-:6:-was then aged 68 years is a serious injury in which even theomentum was protruding out of the wound. When the doctorexamined as P.W.11 has deposed that the injuries sustained byP.W.2 could be inflicted by a weapon like MO1, it is not opento the accused to contend otherwise. MO1 is a chopper havinga small curve at the tip and it is quite possible to inflict incisedinjuries on P.W.2 as was found in Ext.P5 wound certificate.Except coming out with a story, the accused has not evenremotely proved that P.W.2 was the aggressor and that P.W.2had sustained the injuries in the course of a grapple for thekinife while engaged in a scuffle with the accused. There isno case for the accused that he has sustained injuries in theoccurrence. The conviction entered and the sentence passed bythe court below do not warrant any interference at the handsof this Court.10.I am afraid that I cannot agree with the abovesubmissions. P.W.1 (Chacko @ Sabu ) is the son of P.W.2, theinjured. P.W.1 who lodged Ext.P1 F.I. statement before theAssistant Sub Inspector of Police (PW13 – Sulaiman) , KumaliPolice Station. Eventhough P.W.1 is not an occurrence witness Crl.A. 1017 of 2003-:7:-he was the person who set the law in motion. During his cross-examination, he has unambiguously admitted that the shortcutfor the accused and others is through the pathway passingthrough the middle of the property of himself and others. P.W.2(Cherian) is the injured. He has denied all the defencesuggestions put to him during cross-examination . Eventhoughhe confessed that there was a scuffle between him and theaccused he would say that the said scuffle took place one hourprior to the actual occurrence. In the first place he had nosuch case in his chief examination or before the police asrevealed by Ext.P7 F.I.R. When his attention was invited toExt.P2 scene mahazar that there were timber logs placedblocking the jeep passing along the road he had pretendedignorance about a statement to that effect in the scenemahazar. He admitted that he is an accused in Exts.D1 and D2crimes. He also admitted that with regard to the presentoccurrence there is a counter case against him and the same ispending trial before the very same court as S.C. 186/02. Heconceded that he was fined Rs. 5 lakhs by the AssistantSettlement Officer for cutting trees from the cardamom Crl.A. 1017 of 2003-:8:-plantation from where cutting of trees is prohibited. Headmitted that he was not against the Panchayath widening thepathway passing through his property. But his objection wasagainst the uprooting of cardamom plants. Ext.D2 is a case inwhich DW2 is an accused and he was the aggressor. Goingby the testimony of P.W2 the occurrence was witnessed by hisworkers from 8 cardamom plants away. The distance betweentwo plants is according to him 8 feet. If so, his workers wouldhave seen the occurrence from a distance of about 64 feet away.He qualified his statement by saying that the plants were in adried state by that time.11.P.W.3 (Selvi) is an eye-witness examined by theprosecution. According to her she was working in P.W2'sestate. Her version is that she first heard the cry of P.w.2 andthereupon she along with Kaveri and Lakshmi (charge witnessNos. 3 and 5) ran towards P.W.2. When she first saw P.W.2,the accused and P.W.2 were engaged in a scuffle. She admittedthat P.W.2 usually carries a knife and a stick while coming tothe estate and that the knife is a small knife. According to herthere was a grappling for the knife between P.W2 and the Crl.A. 1017 of 2003-:9:-accused and it lasted for about 10 minutes. When P.W2 has nocase that there was a grapple between him and the accused forthe knife or that it lasted for 10 minutes, PW3 who claims to bean eye witness came out with such a case. P.W3 would furthersay that P.W.2 fell down and the accused sat on P.W.2 and theaccused then took away MO1 knife. P.W.2 has no case that hefell down or that the accused had sat on him. The knife whichwas mentioned by P.W.3 as MO1 is really a chopper. Going byExt.P3 mahazar the measurement of MO1 is 50.5 cm. (length)with its blade having a length of 36cm and having a smallcurve at its tip. It is a single edged weapon. P.W.3 admittedthat her employer is P.W.2 and it was P.W 2's son who took herto the court in a Sumo vehicle and they had stayed in a lodgeat Moolamattom. Notwithstanding the above testimony ofP.W.3 the truth came out from her mouth regarding the actualoccurrence to say that P.W.2 carries a stick and a knife whilecoming to this estate and that there was a grappling betweenP.W.2 and the accused for the knife for about 10 minutes. 12.P.W.4 (Abbas) was the driver of the jeep in whichthe accused allegedly came to the scene. He turned hostile to Crl.A. 1017 of 2003-:10:-the prosecution and during his cross-examination by the defencehe spoke in terms of the defence version.13.P.W.5 (Satheesh) was the cleaner of PW4's jeep.He also turned hostile to the prosecution. Even in his chiefexamination, he admitted that there was an altercation betweenP.W.2 and the accused. 14. P.W6 (Abraham @ Sibi) is the son of the accused.He did not see the occurrence. He took P.W2 to the hospital. 15.P.W.7 (Siddique) had only informed P.W6 the son ofP.W2 about the occurrence.16.P.W.8 (Ravi) is an attestor to Ext.P2 scene mahazar.17.P.W.9 (Mathew) is an attestor to Ext.P3 recoverymahazazr pertaining to MO1 chopper. He turned hostile to theprosecution. He, however admitted his signature in Ext.P3mahazar.18. P.W.10 (V.M. Iype) was the Village Officer, Kumaliwho prepared Ext. P4 scene plan. 19. P.W.11 (Dr.Thomas Mathai) was the Civil Surgeon ofTaluk Headquarters Hospital, Kanjirappally. He examined P.W2at 1 p.m. on 29-7-1998 and issued Ext.P5 wound certificate as Crl.A. 1017 of 2003-:11:-per which P.W.2 had the following three injuries:- i) Incised penetrating wound of 10 cms. in length onthe left side of lower part of chest . Omentum wasprotruding out through the wound.ii) Incised wound of 3 cms. on the left shoulder region.iii) Incised wound of 3 cms. on the medial side of lowerpart of right thigh.The alleged cause stated to the doctor was that the accusedhad cut him with a knife. (ബ(cid:2)ജ(cid:4) കത(cid:2)ക(cid:9) വ(cid:11)ട(cid:2)യത(cid:2)ല (cid:11)ച(cid:9))This doctor did not depose in his chief examination that theabove three injuries could be inflicted by MO1. He admittedthat the length and width of injury Nos.2 and 3 have not beennoted in Ext.P1 wound certificate and it was necessary to notethis . Going by the measurements of MO1 chopper it can easilybe inferred that an incised penetrating wound like injury No. Icould not have been inflicted with such a weapon. Evenaccording to P.W.3, (the independent occurrence witness) theweapon used was a knife. It was not put to her that MO1 wasthe weapon with which the accused stabbed P.W.2.20. P.W.12 (Raveendran) was the head constable of Crl.A. 1017 of 2003-:12:-Ettumanoor Police Station, who recorded the statement of P.W.2from the Medical College Hospital, Kothamangalam. Thedefence objected to the marking of the statement recorded byP.W.12 for the reason that the first information statement hadalready been marked through P.W.1 given to the Kumali Policeand therefore, the statement recorded by P.W.12 would be hit bySec. 162 Cr.P.C. The above objection was sustained by thecourt below .21.P.W.13 (Sulaiman) who was the A.S.I. of KumaliPolice Station recorded Ext.P1 F.I. statement given by P.W.1and registered Ext.P6 F.I.R. as Crime No. 155/98 for an offencepunishable under Sec. 324 I.P.C. He claims to have preparedExt.P2 scene mahazar which was, however, not put to him.Sec. 307 I.P.C. was subsequently added. He admitted thattimber logs were seen lying on the road inside the property.22.P.W.14 ( Radhakrishnan) was the Circle Inspector ofPolice, Kumali . Ext.P7 is the F.I.R. registered as Crime No.250/98. The counter case to the present occurrence registeredas Crime No. 152/98 for offences punishable under Sections324 and 506 (2) read with Sec. 34 I.P.C was proved through Crl.A. 1017 of 2003-:13:-P.W.14 who deposed that the counter case is pending trialbefore the court below as S.C.186/2002. He confessed that theplace of occurrence, scene of occurrence scene plan etc. inboth the cases are the same.23.The main fallacy into which the court below fell wasthe wrong assumption that there was no evidence to show thatthe accused had a right to enter the property of P.W.2 for useras a way and therefore, he was a trespasser. Yet anotherwrong assumption made by the court below was that theaccused did not sustain any injuries. Both these assumptionsmade by the court below were unfounded . In the face of thetestimony of P.W1 to the effect that the way for the accusedand others was through the middle of their property, it was notpermissible for the Court below to assume that there was noevidence to show that the accused had a right to use the waypassing through the property of P.W.2. The case of the accusedalso was that when he came into the property of P.W.2 in hisjeep, P.W.2 obstructed him. According to him when he camethrough the way passing through the property of P.W.2 in hisjeep timber logs had been kept across the road blocking the Crl.A. 1017 of 2003-:14:-way. Eventhough this part of the defence suggestion was deniedby P.W.2, the testimony of P.W.13 A.S.I. shows that he hadseen timber logs lying on the road.24.In the face of the testimony of P.W.14 to the effectthat a case was registered against P.W.2 for offencespunishable under Sections 324 and 506 (ii) as Crime No. 152/98,it was wrong on the part of the court below in assuming that theaccused did not suffer any injury. This was a case where theaccused who had a right to pass through the property of P.W.2while doing so was obstructed resulting in an altercation andscuffle . The testimony of P.W.3 clearly indicate that P.W.2 is inthe habit of carrying a knife and that there was a grapple forthe knife between P.W.2 and the accused for nearly 10minutes. The location of the injuries on the body of P.W.2 alsoindicate that injury No. 2 and 3 may not be the result of anyintentional cut. As mentioned earlier it is impossible to inflict aninsized penetrating would with a weapon like MO1 chopper.25. In Pylan v. State of Kerala 1992 (2) KLT 661 theDivision Bench of this Court observed as follows:-“9. P.W.15 – Circle Inspector of Police in this caseadmitted that first and third accused were hospitalised Crl.A. 1017 of 2003-:15:-on the same day of occurrence and they were treatedin the hospital for two days as inpatients. What are theinjuries sustained by first and third accused ?Prosecution has not given any explanation whatsoeverfor non-production of the documents relating to theinjuries sustained by first and third accused. Evenwhen P.W.15 was asked about them in cross-examination, prosecution was not prepared to take anystep to get down the document revealing the injuriessustained by first and third accused. Learned SessionsJudge surmounted this hurdle by putting the burden onthe accused like this. “If first and third accused have acase that they have sustained injuries in theoccurrence, they could have caused the production ofthe relevant document from the hospital”. Ifprosecution has a case that the first and third accusedhave sustained injuries in the occurrence, why shouldthe prosecution suppress the fact ? Learned SessionsJudge observed that “non-explanation of injuries on theaccused is not always fatal when such injuries areminor or superficial. It is still a riddle why theprosecution has not moved a little finger for notproducing the First Information Statement furnishedby third accused on the same day of occurrence. Thatwould certainly have given the court an opportunity tosee the rival version of the same incident presented tothe police on the same day.10.Learned Public Prosecutor contendedthat injuries on third accused have been sufficientlyexplained and even the First Information Statementcontained as explanation tot hat effect. Theexplanation is this: When second accused dealt a blowon the deceased, it fell on the back of third accusedby mistake. Whether the explanation is true or not,since the court is deprived of the chance to know eventhe nature of injuries sustained by the third accused,we are not prepared to accept the aforesaidexplanation as sufficient to justify for suppression ofthose important materials. According to theappellant's counsel, the documents relating to the Crl.A. 1017 of 2003-:16:-wounds of the two accused were suppressed with thefear that, if they come to lime light the serious injurieson the person of those accused would be unadjustablyincompatible with the prosecution story. That apart,what about the injuries sustained by first accused ? Itis very strange, if not incomprehensible, that theprosecution has strained a lot in suppressing suchmaterials. Merely examining three eye witnesses is ofno use for the criminal court to come to the conclusionas to how the incident had commenced, developed andended”.Except for the interested testimony of P.W.2 regarding thestarting of the incident, the evidence on record clearly showsthat it was P.W.2 who was responsible for the occurrence byblocking the way over which the accused has a right to pass.The testimony of P.W.3 clearly shows that P.W.2 and theaccused were seen engaged in a scuffle and there was agrappling for the knife between the two for about 10 minutes.The F.I.R, wound certificate, charge sheet etc. in the countercase were not produced by the prosecution to facilitate the courtto find out as to which of the two rival versions could be true.This is a case where the genesis of the occurrence has beensuppressed by the prosecution attracting the ratio in LakshmiSingh v. State of Punjab – AIR 1976 SC 2263. On theevidence before court there is absolutely no justification for the Crl.A. 1017 of 2003-:17:-conclusion that the accused was a trespasser on the property ofP.W.2 or that it was the accused who started aggression. Whenthe accused had every right to pass through the property ofP.W.2 and he was indeed passing through the said property inexercise of his right, it was P.W.2 who caused a blockade byputting timber logs across the road resulting in the occurrence,the starting point of which has been suppressed by theprosecution. Right of private defence is available not onlyagainst aggression on the person but also against aggressionupon property over which the person concerned has a right toenjoy. It is not the law that for the exercise of the right ofprivate defence the accused should actually sustain an injury. Areasonable apprehension will suffice. The law is well settledthat even if the accused has taken up the plea of self defence ,that will not absolve the prosecution of its burden to prove theoffences charged against the accused . The prosecution willhave to prove that the accused inflicted the injuries on thedeceased in the manner and under the circumstances alleged bythe prosecution. The admission of the accused that he inflictedthe injuries on the victim will not in any way lessen the burden Crl.A. 1017 of 2003-:18:-which is heavily on the prosecution. (Vide Surendran @Sasi v. State of Kerala -1977 KLT 17). The real onus is onthe prosecution to prove its case including the manner ofoccurrence beyond all reasonable doubt . The accused has onlyto raise a doubt in the mind of the court or to satisfy thecourt that the defence version disclosed by the accused was aprobable version of the occurrence. (Vide Ram Swarup v.State of Haryana – 1993 Crl.L.J. 3540 (SC)). The accusedcan take advantage of the prosecution evidence as it stands andargue that even if such evidence is accepted as reliable itwould sustain a plea of private defence in respect of the actsattributed to him. The failure to set up an express plea ofprivate defence cannot preclude him from making out such adefence on the basis of the prosecution evidence itself. (VideThomman v. State of Kerala - -1957 KLT 859 andChandrasekharan Adithiripad v. State of Kerala – 1987Crl.L.J. 1715). It is pertinent to note that even according toP.W 3, CW3 and CW5 had also seen the occurrence. But theywere kept away from the witness box. The conviction entered and the sentence passed by the Crl.A. 1017 of 2003-:19:-Court below overlooking the above vital aspects cannot besustained and are accordingly dislodged. The appellant isfound not guilty of the offence punishable under Secs. 447 and326 I.P.C. and is acquitted thereunder. He shall be set at libertyforthwith. In the result, this appeal is allowed as above.Dated this the 14th day of October 2009.Sd/-V. RAMKUMAR, (JUDGE)/true copy/ani. V. RAMKUMAR, J.* * * * * * * * * * * * * * * * * *Crl.A. 1017 of 2003* * * * * * * * * * * * * * * * * * Dated: 14-10-2009JUDGMENT