Kerla High Court · 2010

Crl.Appeal No.1146/2005.-: 3 :-While roaming, they met one of their friends, Shiji and theywent for food in Green City Hotel at Pattikkad. By the time,they came to know that there was an NSS programme atPattikkad school. Baiju and Pw1 decided to go there. Theywent to the nearby petrol pump, replenished fuel andproceeded. When they reached near Kuruveli ShoppingComplex they took a turn hoping that they could go to theschool through the road passing through the shoppingcomplex. After proceeding a little ahead, they understoodthat they were in a wrong route. Pw1 asked Baiju to take aturn. While turning the motor cycle, the first respondentrushed to them and Baiju was stabbed at his chest andabdomen. To facilitate the stabbing, second respondentrestrained Baiju by holding at his shoulder. Baiju and Pw1fell down along with the motor cycle. Pw1 got up andrushed to the nearby police aid post and with the help of apolice constable on duty, lifted Baiju with the knife in situ tothe Medical College Hospital, Thrissur, where Pw6 was Crl.Appeal No.1146/2005.-: 4 :-working as a Lecturer. Pw6 examined Baiju and declareddead. Leaving the body of Baiju at the hospital, Pw1 wentto the Peechi police station wherein Pw7 was the SubInspector. He informed the matter. Pw7 recorded thestatement given by Pw1 at 9.00 p.m. and registered a caseas Crime No.210/97 for offence under Sec.341 and 302 readwith Sec.34 IPC. Ext.P1 is the first information statementand Ext.P1(a) is the first information report.4.Pw8, the Circle Inspector of Police, Ollur tookover the investigation. He proceeded to the MedicalCollege Hospital and seized MO1 knife which was handedover to him by Pw6, who removed the same from the bodyand kept in his custody. Ext.P3 is the seizure mahazar. Heconducted inquest on the dead body and prepared Ext.P4Inquest Report. While preparing the inquest report heseized the jeans, shirt, baniyan, brief, shoes and leather beltworn by the deceased, which were marked as MOs.4 to 9.Pw8, then proceeded to the spot of occurrence and Crl.Appeal No.1146/2005.-: 5 :-prepared Ext.P5 scene mahazar. From the spot ofoccurrence, he seized a cap, spects, watch, chappals andblood stained clothes which were marked as MO2 andMOs.10 to 13. He, then went to the house of the firstrespondent bearing Door No.PP.V/336. A lorry bearingregistration No.KLH 7713 was seen parked in a shedadjacent to the house of the first accused. Lorry was seizedon the strength of a mahazar which was marked as Ext.P6.The left handle of the lorry and the number plates werefound stained with blood. That blood was collected with apiece of cloth which was marked as MO14.5.On 3.1.1998, the respondents were arrested.When interrogated, the first respondent stated that he hadkept the clothes at his property and in the event he was ledto that place, he would take it and hand it over.Accordingly, Pw8 went to the house along with the firstrespondent and seized two shirts, one lunki and one doubledothi kept packed in a plastic cover. Ext.P7 is the seizure Crl.Appeal No.1146/2005.-: 6 :-mahazar. MOs.15 to 19 are the articles so seized. Thematerial objects seized were forwarded to the ChemicalExaminer and obtained Ext.P10 certificate. Ext.P11 is acertificate certifying the community of the deceased. Pw8,on finding that offence under Sec.3(2)(v) of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Actwas also disclosed, a report was filed to that effect. Furtherinvestigation was conducted by the Deputy Superintendentof Police who forwarded the final report to the Court of theJudicial Magistrate of the First Class-III, Thrissur, whereinit was numbered as CP.No.23/2000.6.Finding that the main offences alleged areexclusively triable by a Court of Session, the learnedMagistrate, after complying with requisite procedures,committed the case to the Court of Session by order dated8.2.2001. The learned Sessions Judge took cognizance andissued process to the respondents who were released onbail during the investigation stage. On their appearance, Crl.Appeal No.1146/2005.-: 7 :-after hearing the prosecution and the respondents, chargefor offences under Sec.341 and 302 read with 34 IPC andSec.3(2)(v) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989 was framed. Therespondents pleaded not guilty. So, they were sent for trial.On the side of the prosecution, Pws.1 to 9 were examined.Exts.P1 to P12 and MOs.1 to 19 were marked. During thecourse of the cross examination of Pws.1 and 2, certainportions of their case diary statements were marked asExts.D1 and D2. When questioned under Sec.313 of theCrl.P.C., the respondents took a defence of total denial andfurther stated that they were implicated due to politicalmotive. No defence evidence was let in. The learnedSessions Judge on appraisal of the evidence arrived at afinding that the prosecution failed to establish the offencesalleged. Consequently, the respondents were acquitted. 7.To prove the occurrence, the prosecutionexamined Pws.1 to 3 of whom Pw3, a neighbouring shop Crl.Appeal No.1146/2005.-: 8 :-keeper turned totally hostile. Pws.1 and 2 had givenevidence supporting the prosecution. 8.Pw1 had deposed that he along with late Baijuproceeded from their house at 4.30 p.m. on 26.12.1997 on amotor cycle belonging to Pw1. They went through the sideof the house of the first respondent. Baiju was in love withthe daughter of the first respondent. On the way they mettheir friend Shiji. They spent some time along with Shijiand replenished petrol in the Bike from the nearby petrolpump and then they had their food from a hotel. While so,they knew that there was a programme of NSS at Pattikkadschool. They proceeded to the school. On the way to theschool they took a turn near the Karuveli shopping complex.Immediately they felt that they were on wrong route. Pw1asked Baiju, who was riding the motor cycle, to take a turn.While they were turning the motor cycle, the respondentsrushed to them and the first respondent stabbed three orfour times at the chest and abdomen of Baiju. The 2nd Crl.Appeal No.1146/2005.-: 9 :-respondent caught Baiju at his shoulders from back andthus restrained him. As a result of assault, both the ridersfell down along with the motor cycle. Pw1 rushed to thenearby police aid post and requested for help. By the timethe respondents left the scene. Baiju was lifted to theMedical College Hospital with knife in situ. For liftingBaiju, police constable on duty at the Aid Post and othersassisted. The Doctor, after examining Baiju, declared himdead and that MO1 was the knife with which Baiju wasstabbed and that he reported the matter to the police andthat Ext.P1 is the first information statement. It was furtherdeposed that while they were proceeding to Mannuthy, thesecond respondent was standing in front of the house of thefirst respondent and that when the incident occurred therewas power cut. But, there were emergency lights in thenearby shops. It was also deposed that Baiju had told himthat the first respondent was not interested in the loveaffair. Crl.Appeal No.1146/2005.-: 10 :-9.Pw2 had deposed that he was running a cool barnear Peechi Police Station and that on 26.12.1997 between7.00 and 7.30 pm. while he was waiting for a bus atPattikkad bus stop, late Baiju and Pw1 were found riding amotor cycle. Following the motor cycle there was a lorry.Motor cyclist took a turn to the shopping complex. Thelorry went a little ahead and stopped. The respondentsalighted down from the lorry and they went to the motorcycle. The first respondent stabbed Baiju, the rider at hischest and abdomen with a knife and that while the firstrespondent was stabbing, the second respondent had beenholding Baiju and that after stabbing Baiju, respondentsreturned to the lorry and drove away. He had also deposedthat he could witness the incident in the light from theemergency lamps kept in the nearby shops and from theheadlight of the vehicles passing thereby. Baiju was takento the hospital. He had further deposed that Baiju wasmurdered since the first respondent was not agreeable to Crl.Appeal No.1146/2005.-: 11 :-get his daughter married to Baiju, who had been loving herand that Pw2 had heard that Baiju was intimidated by thefirst respondent.10.Pw6, who was working as Lecturer in MedicalCollege, Thrissur had deposed that Baiju was brought deadto the hospital with knife in situ. He took out the knife fromthe body, kept in the hospital and handed it over to theinvestigating officer on the next day. 11.Pw9, the Asst.Professor of Forensic Medicine,Medical College, Thrissur had deposed that at 12.30 p.m. on27.12.1997 he conducted autopsy on the body of Baiju andthat Ext.P12 is the postmortem certificate issued by him.Pw9 had noticed the following 12 wounds: 1.Incised penetrating wound 5 x 2.3 cmhorizontally placed on the front of chest inmidline, 9 cm below upper end of sternum.Both ends were sharply cut. The sternumwas separated. The wound entered the leftchest cavity through 5th intercostal spaceand terminated in the upper lobe of left lungby a cut 2.3 cm long 1.2 cm deep. The leftlung was collapsed and the left chest cavity Crl.Appeal No.1146/2005.-: 12 :-contained 600 ml of blood. The wound wasdirected backwards and to the left for a totalminimum depth of 6.5 cm. 2.Incised penetrating wound 6.3 x 2 cmobliquely placed on the right side of front ofabdomen. Both ends were sharply cut. Theupper outer end being 7.5 cm to the right ofmidline and 10 cm below and inner to rightnipple. The wound entered the chest andabdominal cavity by cutting through the 8thspace and 7th costal cartilage, cut thediaphrum and terminated in the right lobe ofliver by a cut of 10.8 cm long and 6.5 cm indepth. The abdominal cavity contained 800ml of blood. The wound was directedbackwards and downwards for a totalminimum depth of 9.5 cm. 3.Incised penetrating wound 4 x 1.6 cmobliquely placed on the right side of front ofabdomen 0.9 cm below, injury No.2. Bothends were sharply cut. The wound enteredthe abdominal cavity and transfixed themesentery and omentum and terminated inthe right posterior abdominal wall between11th and 12th ribs. The wound was directedbackwards and downwards for a depth of2.05 cm. 4.Superficial incised wound 1.2 x 0.3 cmobliquely placed on the right side of front ofchest 3.5 cm above and inner to right nipple. 5.Abrasion 2.5 x 1.7 cm on the front of left leg Crl.Appeal No.1146/2005.-: 13 :-11 cm below knee. 6.Incised punctured wound 4.5 x 2.2 cmobliquely placed on the front of left thigh, thelower inner end 13 cm above knee. Theupper end showed a side cut of 2.3 cmupwards and inwards. Both ends weresharply cut. The wound directed downwardsand inwards for a depth of 8 cm. 7.Superficial incised 1 x 0.2 cm on the inneraspect of left hand between 1st and 2nd finger7 cm above from the tip of thumb. 8.Two superficial incised wounds 1.2 x 0.2 cm;1 x 0.2 cm, placed one above the other at 0.8cm apart on the inner border of proximalsegment of left 2nd finger. 9.Multiple small anrasopms over an area 2 x1.6 cm on the back of left elbow. 10.Incised wound 5.2 x 1.4 x 4 cm obliquelyplaced on the left side of back of abdomen.Both ends were sharply cut, the lower innerend 5 cm to the left of midline and 10.6 cmabove giuteal line. 11.Superficial incised wound 1 x 0.4 cm on theright sides of back of trunk 9 cm to the rightmidline and 13 cm below lower end ofshoulder blade. 12.Superficial incised wound 1.2 x 0.4 cmobliquely placed on the left side of front of Crl.Appeal No.1146/2005.-: 14 :-abdomen 20 cm below left nipple 5 cm to theleft of midline.12.Pw9 had further deposed that injury Nos.1 and 2were individually capable of causing death in the ordinarycourse of nature. Injury Nos.1 to 4, 6 to 8 and 10 to 12would be caused with weapon like MO1. The wounds wereinflicted with a double edged weapon. Injury Nos.7 and 8would be caused while defending the attack. Injury Nos.5to 9 would be caused due to fall on a rough surface and thatthe injuries were sustained within seven hours of his lastmeal. The cause of death deposed by Pw9 was not at allchallenged in cross examination. By the unchallengedevidence of Pw9, it is convincingly established that death ofBaiju was a homicide. The question then remains is as towhether the respondents did it or not? 13.Pw1 was subjected to a searching crossexamination. Only one contradiction was brought out in hisevidence. During the course of investigation, on 3.1.1998 Crl.Appeal No.1146/2005.-: 15 :-when Pw8 questioned Pw1 pointing out, presumably thesecond respondent, it was stated that the motor cycle wasrestrained by him. In the box he had denied of having seenthe motor cycle restrained by any person. Other than that,there is no contradiction and his evidence supports theprosecution case in all material particulars. Ext.P1 firstinformation statement would also corroborate with theevidence of Pw1 in material particulars.14.It is the very case of the prosecution supported bythe evidence of Pw1 that on the eve of the incident, Pw1along with deceased Baiju had been roaming round on amotor cycle ridden by the deceased. They had proceeded toPattikkad school where there was a programme. They tooka turn near a shopping complex. After moving a little aheadthey understood that they were on the wrong way and whileturning the motor cycle the incident occurred. In theevidence, the registration number of motor cycle was not atall brought out. In Ext.P1 the registration number of the Crl.Appeal No.1146/2005.-: 16 :-motor cycle is mentioned. It was also stated that the motorcycle was belonging to Pw1 and the deceased was ridingthe same and that due to the stab, the deceased and Pw1along with the motor cycle fell down. Pw8 had been to thespot of occurrence for preparing Ext.P5 scene mahazar.The motor cycle was lying near the spot of occurrence. Thenumber of the motor cycle was noted as KL-8/E 1133 inExt.P5. That is the very number mentioned in Ext.P1. Theblood stain found on the floor was collected by Pw8 with thehelp of a cloth. Regarding the spot of occurrence, there isno challenge in cross examination. Blood stains on theground and the motor cycle lying on the spot lend supportto the evidence of Pw8 regarding the spot of occurrence.The fact that Pw1 and the deceased were friends and whilethey riding the motor cycle, the unfortunate incidentoccurred, was not challenged in cross examination. Pw1had also deposed that the knife with which Baiju wasstabbed was in situ in the wound. That evidence was Crl.Appeal No.1146/2005.-: 17 :-corroborated by the testimony of Pw6. It was Pw6, whoremoved the knife from the wound and handed it over to theinvestigating officer. That evidence of Pw1 is corroboratedby Ext.P1. In Ext.P1 it is stated that deceased was stabbedtwice or thrice. In the box he had deposed that thedeceased was stabbed three or four times. Injuries foundon the deceased would show that there were number ofinsiced wounds. We find that, for that reason, it may not beappropriate to disbelieve Pw1. Rather than the number ofstab, the fact is that the deceased was stabbed more thantwice. In the situation revealed out in this case, Pw1 maynot be exact in counting the stabs. The medical evidencesupports the evidence of Pw1. 15.Ext.P1 would show that it was given by Pw1 at9 pm. on the same day. But in the box he had deposed thatthe statement was given at 8 or 8.30 am. on the next day.However, the Prosecutor didn't care to clarify the same. Heought to have done it. The evidence of Pw7, who recorded Crl.Appeal No.1146/2005.-: 18 :-Ext.P1, would show that Ext.P1 was given by Pw1 at 9 pm.on the very same day. There is no suggestion to Pw1 orPw7 that Ext.P1 was later concocted. There is nosuggestion to Pw7 that there was any delay in forwardingExt.P1 and Ext.P1(a) to the court. Ext.P1(a) would showthat it was seen received in court at 2.15 p.m. on26.12.1997. It appears that the date shown is not correct.It might be 27.12.1997 at 2.15 pm., because the incidentalleged itself was happened at 7.30 pm. on 26.12.1997. Theevidence of Pw8 who investigated the case would show thathe reached the casualty department of the Medical CollegeHospital, Thrissur at 8 am. At what time he got informationis not brought out. Pw8 had seized MO1 at 8 am. afterpreparing Ext.P3 seizure mahazar. Crime number is notedin Ext.P3. There is no suggestion to Pw8 that he went tothe Medical College Hospital, Thrissur before Ext.P1 orbefore registering the crime. Such being the evidence ofPws.7 and 8, it appears that the time and date of the first Crl.Appeal No.1146/2005.-: 19 :-information statement mentioned by Pw1 in Court is eithera slip of tongue or because of the faded memory. Pw1 wasexamined 4 years and 11 months after the occurrence. So,the possibility for fading memory cannot be ruled out. Wefind that Ext.P1 was given at 9.00 pm. on the very same dayas noted in Ext.P1 and deposed by Pw7 and there was nodelay at all.16.There is no case for the defence that the crimewas committed at a different place or in any other manneror that it was not Pw1 who had taken Baiju to the hospital.What was suggested to Pw1 in cross examination is that therespondents were implicated due to suspicion. Pw1 haddenied the same. It is not disputed that Pw1 was familiar torespondents. The name of the assailants and the address ofthe first assailant were specifically mentioned in Ext.P1also. Of course, we do not forget that Pw6 had deposedthat it was stated to him that an unknown person was theassailant. We cannot ignore the fact that Pw6 was not in Crl.Appeal No.1146/2005.-: 20 :-the process of investigation, but he was examining thevictim. So, he might not have been very particular toenquire as to who was the accused or to record the name ofthe assailant in the register. So long as the medical officerattending a medico legal case has no machinery to cross checkthe correctness of the statements given by the bystanders andthey have no role in investigation, their query to the bystandersis to understand the cause and not the assailants. Probably, hemight have seldom cared as to who was giving information. Inthe event, he was not informed about the name of the assailant,he may record in the manner stated by him. In the evidence ofPw1, it was not revealed that Pw1 had stated to Pw6 about theassailant. So, the evidence of Pw6 that it was stated to him thatthe assailant was an unknown person has no significancebecause, no other person who had witnessed the occurrence hadbeen to the hospital. Someone who had not seen the incidentmight have stated so to Pw6. From the very inception of thecrime itself the assailants names were mentioned by Pw1. InExt.P1, Pw1 had even stated the address of the first Crl.Appeal No.1146/2005.-: 21 :-respondent as well as the motive. Of course, the motive asstated in Ext.P1 was not brought in evidence. What wasbrought in evidence is that the deceased was in love withthe daughter of the first respondent and that the firstrespondent was not interested in it. Since the motive isvery specifically alleged in Ext.P1, the Public Prosecutorought to have put it to Pw1 while he was in the box, but, notdone. It appears that it was an omission by the PublicProsecutor. However, it is not disputed that the assailantsare not familiar to Pw1. So, there is little chance formistaken identity. 17.It was suggested to Pw1 that Baiju, who was anactive worker and a leader of DYFI, had some conflict withBJP workers. Pw1 had deposed that he was not aware of it.Other than that suggestion, no material was brought out inevidence to find that Baiju was in conflict with any otherperson or that he had got any other enemies. Therespondents also haven't got any case that Baiju had any Crl.Appeal No.1146/2005.-: 22 :-conflict with any other people. Whereas, they stated thatthe case was because of the political enmity. There is nosuggestion to Pw8 that he had any axe to grind againstrespondents, so as to cook up a false case. Neither there isany suggestion to Pw1 that he was motivated against therespondents so as to implicate the respondents with theoffence alleged after sparing the true culprit. What wassuggested to Pw1 is that some workers of the Marxist Partyhad been to the police station when Pw1 went there to giveExt.P5 statement. The deceased being a DYFI worker and ifhe had been loyal to Marxist Party, some workers of theMarxist Party might have gone to police station. If anysuch person had gone to the police station, there is nothingwrong and it is not a reason to come to a conclusion thatwithin 1 ½ hours of the incident, Pw1 had an over thoughtto implicate a wrong person with an offence of murder,either with or without the intervention of any otherperson. Since Pws.1 and 2 were disbelieved by the Crl.Appeal No.1146/2005.-: 23 :-trial court, we had a very careful and critical scrutiny of theevidence of Pw1. We find that in material particulars theevidence of Pw1 corroborate with the prosecution caseexcept some minor discrepancies here and there, which arenot affecting the core of the prosecution case. All relevantmaterials revealed by the evidence of Pws.1, 6 and 7coupled with Ext.P1 lead us to arrive at an inference that itwas the first respondent who had stabbed the deceased.18.In disbelieving Pw1, in the impugned judgment,the learned Sessions Judge in paras.12, 14, 15, 16, 17 and20 had given eight or nine reasons. Going by the judgment,we find that those reasons are very peripheral, imaginaryand even the learned Sessions Judge had approached theevidence with a prejudice. In second paragraph of thejudgment it is stated that 'the deceased Baiju, a member of theVettuva community, who is a DYFI activist and a drop out fromthe college had found pleasure in wooing Sheena, a member ofEzhava community and that he had used to say his friends Crl.Appeal No.1146/2005.-: 24 :-that nobody else will marry her as he had used to pacify his lustwith her and spoiled her'. It appears that the learnedSessions Judge had a notion that the deceased was anunwanted or bad element and he was involved in suchactivities which can no way be justified. The learnedSessions Judge forgot the fact that the majority of the dropouts from our educational institution belong to scheduledcaste or tribe. It is the social circumstances that make thestudents of the scheduled castes/tribes dropping out duringtheir educational process. It is a social issue, which has nosignificance in the adjudication of this case. So also, ayoung man and woman falling in love,or having premaritalsex or telling those stories to friends are not at all a sin orcrime, though premarital sex may be against the morality inour culture. Whatever that may be, those are extraneousmatters for the disposal of the case on hand. Startinga judgment in a session trial with contemptuousremarks against the victim is manifestation of a Crl.Appeal No.1146/2005.-: 25 :-prejudiced approach. It is pertinent to note that as againstthe respondents, those matters constitute a strong motive.But in finding motive, those matters were not considered bythe learned Sessions Judge. We feel that it is not a just andfair approach. 19.In para.14 of the impugned judgment it wasmentioned that Pw1 is a DYFI activist, a some what militantassociation. There is no suggestion to any of the witnessesby the defence that DYFI is a militant association. Itappears that the learned Sessions Judge had an extraneousnotion that the deceased, who was a DYFI activist, was amilitant person. The other observation in the judgmentwould make it appear that the learned Sessions Judge had afeeling that the crime was invited by the deceased himself.It is with that notion the learned Sessions Judge appraisedthe evidence. Irrespective of the drawbacks or demerits ofan individual, he has the right to life - so guarantees theConstitution of India - the holy book of every citizen in our Crl.Appeal No.1146/2005.-: 26 :-country. Nobody shall be allowed to take law in his hands.In the event, the deceased had committed any breach oflaw, it shall be dealt according to law. No crime shall gounpunished for the reason that the victim is a bad person.Such observations, unless otherwise warranted for theappreciation of the evidence, shall not find a place in ajudgment. Such observations may sometimes influence theconclusion or tilt the balance. The learned Sessions Judgeought to have remembered that those in other worldcouldn't respond to such comments. By making suchcomments, the basic concept of the principle of naturaljustice 'audi alteram partem' - no man shall be condemnedwithout affording an opportunity to be heard, is violated.Such comments should have been avoided. 20.In cross examination, it was suggested to Pw1that the talk of area was that the deceased was stabbed byan unknown person. He stated that he didn't know about it.It was then suggested that four or five persons were Crl.Appeal No.1146/2005.-: 27 :-stabbing the deceased. He stated that he didn't hear that.Then it was suggested that whether it was not reported so.He stated that he was not aware. It was also suggested thata week before the incident there was a clash between thedeceased and his friends on one side and BJP workers onthe other side. To that Pw1 had stated that he was notthere for about two months and he came back only on theprevious day of the incident. According to the learnedSessions Judge, since Pw1 and the deceased were veryclose, they would have certainly discussed the matter, thatoccurred during the absence of Pw1 from the place,immediately on his arrival. The learned Sessions Judge indisbelieving Pw1, had given undue importance to theevidence of Pw1 that he was unaware of the suggestions putto him. There is nothing to show that the suggestions madewere either true or that Pw1 was aware of it. If such thingsnot happened as suggested or Pw1 was not aware of it, hecould give no better answer. It is crucial to note that Crl.Appeal No.1146/2005.-: 28 :-neither the respondents had got any case that Baiju had anyclash with BJP workers or any evidence was let in to the effectthat Baiju had got any other rivals. That being the evidence onrecord, the suggestions to the witness in the box was nothing butbeating the bush and requires no consideration to determine thecredibility of a witness. The suggestion made to the witness areon hearsay information, which is not admissible. The learnedSessions Judge disbelieved Pw1 for his answer that he was notaware of matters, about which he has no direct knowledge It is afundamental error. So long as there is no evidence to show thatPw1 had direct knowledge about the matters suggested in crossexamination, witness shouldn't have been disbelieved for hisanswer that he was unaware. 21.To Pw1, it was suggested that he is a DYFI worker.He had denied the same and had deposed that he had no politics.But, Pw2, whom the Sessions Judge didn’t believe, in crossexamination had deposed that Pw1 is a DYFI activist. Thelearned Sessions Judge for that reason arrived a conclusion thatPw1 was suppressing the true facts. That is also not a fair Crl.Appeal No.1146/2005.-: 29 :-approach in appreciating the evidence.22.It was also observed that Pw1, being a DYFI activist,some what militant association, when the deceased was stabbed,Pw1, who was in the pillion, would have responded. But he hasno case that he had responded. According to the learnedSessions Judge, for that reason the evidence given by Pw1 ishighly improbable and that the evidence given by him is a storyhatched about the cause of death. On the same time, the learnedSessions Judge omitted to note that the prosecution case in allmaterial particulars starting from the assault to taking the victimto the hospital corroborate with the evidence of Pw1, theveracity of which couldn't be impeached in cross examination.The finding of the learned Sessions Judge that DYFI is some whatmilitant association is not borne out by any records. It is anextraneous observation of the learned Sessions Judge, which isnot at all warranted and is not sufficient enough to disbelievePw1. The power to respond vary from person to person.Irrespective of the political philosophy or other thinking, a manmay look stunned or scared when a close friend or relative is Crl.Appeal No.1146/2005.-: 30 :-brutally and suddenly assaulted. The evidence on record wouldshow that Pw1 who was on the pillion did get no time to respondor rescue. Baiju was repeatedly and suddenly stabbed andassailants left the scene with knife in situ. Victim was shockedwith assault, lost control of the vehicle and fell down with vehicleand Pw1 on the pillion. Pw1, even couldn't avoid falling down.In such circumstance, at no stretch of imagination we can agreewith learned Sessions Judge that the failure of Pw1 to respond isany indication against Pw1 regarding his presence at the spot. 23.In disbelieving Pw1, the learned Sessions Judgehad also noted that though Pw1 had a case that he along withthe motor cycle and the deceased fell down, he had not sustainedany injury and the absence of injury was taken as a reason toimprobabilise the presence of Pw1 with the deceased. WhenPw1, who was pillion rider and the motor cycle and alongwith the rider falling down due to a stab on the rider, it isnot at all necessary that the pillion rider might havesustained injuries or scratches. So, the absence ofscratch or injury, because of the fall, on Pw1 is not at all Crl.Appeal No.1146/2005.-: 31 :-a reason to conclude that he was not along with the rider,the deceased. Adding to that, when a friend of Pw1 wasstabbed to death, always the attempt would be to rescueand when the death occurred, the attention would be for thefuneral and other related matters. Pw1 might have evenignored his minor injuries if at all sustained. In the event, ifPw1 had sustained some minor scratches or injuries and hedidn't go to the hospital or to make record of the same, thatis also not at all a reason to disbelieve him. 24.Yet another reason that was stated by the learnedSessions Judge to disbelieve Pw1 is that someone, whoaccompanied the deceased to the hospital stated to Pw6that the stab was by an unknown person and that in thenormal course, the person who accompanied the deceased tothe hospital must have made it and the statement regarding thecause would have been recorded in the register and the failureto produce the register in which the entry was made waswith a view to suppress the fact that Pw1 had given such a Crl.Appeal No.1146/2005.-: 32 :-statement. That observation is also not correct becausethere is nothing to conclude that even if that register isbrought into evidence, any further material other than whatwas deposed by Pw1 would be revealed, either in favour ofthe prosecution or in favour of the accused. We had earliermentioned that the Doctor who attended the victim was notprobing about the assailants, whereas his attention wouldbe for managing the victim and in the event there was anyomission to mention the name of the person whoaccompanied the victim/deceased to the hospital or failed torecord the name of the assailant, it is not at all a reason todisbelieve Pw1 whose evidence, as we stated earlier, iscorroborated in all material particulars. 25.Yet another reason stated is that during the crossexamination, Pw1 had admitted that party local committeemember directed him to give evidence. In fact, there is nosuch evidence given by Pw1. It was suggested to Pw1 thata member of the local committee of the Marxist Party had Crl.Appeal No.1146/2005.-: 33 :-been to the police station to which Pw1 had answered thathe was inside the police station. So, that is also not areason to disbelieve Pw1. Even if it is believed that any ofthe party workers of the Marxist Party had been to thepolice station, it is not at all a reason to disbelieve Pw1because, there is no case that the respondents were atlogger heads with the party workers or that Pw1 or theparty workers had any other ulterior motive to substitutethe real culprits. 26.Yet another reason mentioned by the learnedSessions Judge to disbelieve Pw1 is that he had deposedthat he sought the assistance of the police personnel onduty at the police out post and brought two policeconstables for taking the victim to the hospital. But thoseconstables had not recorded any statement. Though it wasrevealed out that there was a police constable in the policeout post, what are the facilities available there to record thefirst information statement is not revealed. There is no Crl.Appeal No.1146/2005.-: 34 :-suggestion to Pws.7 or 8 that there was crime recordingfacility at the out post. In the above circumstance, it is tobe concluded that there was no crime recording facility atthe police out post. So, the omission of any such policepersonnel at the out post to record the statement of Pw1,that too before taking the victim, who was seriouslyassaulted, is not at all a reason to reject Ext.P1 or theevidence of Pw1 in toto. 27.The last reason that was given by the learnedSessions Judge to disbelieve Pw1 is that Pw1 had deposedthat Ext.P1 statement was given on next day morning and itmight be after a prolonged deliberation. We had earlierfound that the evidence of Pw1 that Ext.P1 was given on thenext day is not at all probable. Adding to that, there is nomaterial to show that in between the occurrence and therecording of the statement, there was any externalinterference or there was any room for an after thought tocook the case against innocent persons after sparing the Crl.Appeal No.1146/2005.-: 35 :-real culprits, especially in the absence of materials to findthat Pw1 was anyway motivated against the respondents. 28.In our considered opinion, we find that thereasons stated by the learned Sessions Judge to disbelievePw1 are neither legal nor sustainable. The reasons stated,which we discussed earlier in detail, would show that thosereasons are either peripheral or extraneous or evenimported from his imagination. The minor discrepancies inevidence of Pw1 are nothing but the discrepancies of truth.It is not at all affecting the core. In this case evidence wasrecorded after a gap of five years. There is every possibilityfor minor discrepancies. When evidence is recorded after along gap, the veracity of the testimony of witness need bedoubted only if there is no discrepancy at all. There is nomaterial to come to a conclusion that Pw1 was anyway motivatedagainst the respondents so as to implicate them with a gravecrime after sparing the real culprits. We find thatregarding the cause of death, the evidence given by Pw1 Crl.Appeal No.1146/2005.-: 36 :-instill confidence. The defence suggested during the course oftrial is that the victim might have been assaulted by some oneelse as reported in one of the dailies. Neither the daily wasbrought in evidence nor the reporter was examined, nor anyevidence was let in to bring on record that any other person wasthe assailant. Even if newspaper reports are brought on record,they are ordinarily, unreliable as they form only hearsayevidence. 29.The evidence of Pw1 would show that the firstrespondent was not well with the deceased because of his loveaffair with the daughter of the first respondent. That fact was notshaken in cross examination. Pw5, the mother of the deceased haddeposed that twice or thrice the first respondent had been to herhouse and the deceased was intimidated. She had also deposed thatshe had gone to the house of the first respondent and put forward themarriage proposal. But the evidence of Pw8 would show thatduring the course of the investigation, Pw5 had not stated thatshe had gone to the house of Pw1 and advanced the marriageproposal. To that extent, there is some development in the Crl.Appeal No.1146/2005.-: 37 :-evidence of Pw5. But that is not at all a reason to disbelievethe evidence of Pw5 that the deceased Baiju was in lovewith the daughter of the first respondent and the firstrespondent had been to the house of Pw5 and intimidatedthe deceased. It was also deposed by Pw5 that she belongsto Vettuva community. Whereas the first respondentbelongs to Ezhava community. It was revealed that thedeceased was a college drop out. In the normal course, thefirst respondent would not find favour with his daughtermarrying a college drop out man belonging to anothercommunity, which is considered to be of a lower strata.When all these circumstances taken together, we find thatthe evidence of Pw5 that the first respondent was motivatedagainst the son appears to be convincing. Themotive alleged by the prosecution stands proved. Thelearned Sessions Judge had observed that motive is adouble edged weapon. In this case, such observation is notat all correct. There is nothing brought out to show that Crl.Appeal No.1146/2005.-: 38 :-Pw1 or Pw5 had any motive against the respondents tofalsely implicate them with the murder. Respondents hadn'teven such a suggestion. 30.Going by the evidence of Pw2, we find that it isnot safe to rely upon his evidence. According to him, hewho has been residing at Peechi was proceeding to Thrissurand on the way he alighted down at Pattikkad and thus hehad occasion to witness the incident. It was revealed outthat Pattikkad where the incident occurred is not enroutefrom Peechi to Thrissur. According to him, on the way toThrissur he went to Pattikkad and had been waiting for thebus to Thrissur. He had admitted that from Peechi, withoutcoming to Pattikkad, he could straight away go to Thrissurand that, to go to Thrissur, he had to go to the west fromthe highway, and towards Pattikkad, he had to go towardseast from the national highway. So, the explanation of Pw2as to how he reached at Pattikkad on his way to Thrissur isnot at all convincing. He had deposed that the assailants Crl.Appeal No.1146/2005.-: 39 :-were travelling in a lorry behind the motor cycle and whenthe motor cycle took a turn through the road along the sideof a shopping complex, the lorry was stopped a little ahead,the assailants alighted down from the lorry, went to thespot, assaulted Pw1, returned to the lorry and drove away.It is crucial to note that Pw2 claims to be a worker of thesame political party in which deceased was working. But hehas no case that he had gone to the hospital or he sharedefforts to take the victim to the hospital. He had not notedthe registration number of the lorry. To the police, he hadstated that the deceased was stabbed with something. Inthe box he had stated that the deceased was stabbed with aknife. According to Pw2, the incident occurred when therewas power cut and he witnessed the incident in the lightfrom the emergency lamps in the nearby shops and also thelight from the head lights of the vehicles passing throughthe Highway. His evidence is not convincing. So, wefind that the learned Sessions Judge had correctly Crl.Appeal No.1146/2005.-: 40 :-disbelieved him. 31.From the evidence of Pw1 we find that thedeceased was assaulted by none else other than the firstrespondent. Though there is no mention in the evidence ofPw1 as to where did the assailant go after the crime, inExt.P1 it was stated that the assailant had gone to thehighway and left the scene in a lorry parked along the sideof the road. It was the evidence of Pw2 also. It appearsthat it was following that statement the investigating officerhad seized a lorry which was parked in a shed near thehouse of the first respondent. According to theinvestigating officer, there were blood stains on the handleof the lorry as well as on the number plates. But, there isevidence lacking to show that the blood stain noted is thatof the deceased. However, the vehicle in which theassailants left the scene is not of much relevant, especiallywhen the blood stains said to have been found on the lorryis not proved to be that of the deceased. Crl.Appeal No.1146/2005.-: 41 :-32.Though, the evidence of Pw1 is that while the firstrespondent was stabbing the victim, the 2nd respondent hadbeen holding the victim at his shoulder from his back andthus restrained him, on a close scrutiny of the evidence, wefail to come to a conclusion that to facilitate the firstrespondent stab the victim, the 2nd respondent restrainedthe victim. There is no material to come to a finding thatthe second respondent had any intention to commit murderor that had not Baiju been held on his shoulders by the 2ndrespondent, he wouldn't have been stabbed to death by thefirst respondent. Since the victim was on the motor cycleand he was in the process of turning the motor cycle; andthus he himself was in a confined position and unable toescape or even to respond or ward off the assault, there wasno necessity for the 2nd respondent to restrain the victim tofacilitate the stabbing. In the above circumstances, we areof the opinion that the second respondent is entitled to thebenefit of reasonable doubt. At the same time we find that Crl.Appeal No.1146/2005.-: 42 :-the prosecution had succeeded to establish an offenceunder Sec.302 IPC as against the first respondent. There islittle material to come to a conclusion that the firstrespondent stabbed the deceased all on a suddenprovocation or that the stabbing was not with intent tocommit murder. The repeated stabbing would show thatthe first respondent had no lesser intention than to commitmurder of the deceased. So, he is liable to be convictedunder Sec.302 IPC.33.Though offence under Sec.3(2)(v) of theScheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, was also alleged, there isn't any whisper inthe evidence of any witness that the offence was committedfor the reason that the victim belonged to a scheduled casteor tribe; or for the reason that assailants are belonging to acaste other than scheduled caste/scheduled tribe. There isno material on record even to frame a charge for thatoffence. Crl.Appeal No.1146/2005.-: 43 :-34.Normally, if the view taken by the trial court isprobable, we shouldn't have interfered in a judgment ofacquittal. Here in this case, not only the view taken by thecourt below is not probable, but also against ground reality.Pw1 was disbelieved on picking holes from here and there.There is total failure on the side of the learned SessionsJudge to read the evidence as a whole. Undue regard wasgiven for minor discrepancies, which are of truth and fornegligible omission in the investigation process, like failureto procure the accident-cum-wound certificate register. Todisbelieve Pw1, the learned Sessions Judge had evenimported materials, which he had either presumed orbelieved so, like DYFI, is a militant association in which Pw1and deceased were members or activists. Thereasons stated by the learned Sessions Judge to acquitthe first respondent are not at all justifiable whereasit is extraneous and there is utter failure toappreciate the evidence in its correct perspective. All Crl.Appeal No.1146/2005.-: 44 :-relevant materials were not at all considered. The result isthat the finding is perverse and against the evidence onrecord. In such circumstances, High Court has a duty tointerfere and to arrive at a correct conclusion taking a viewdifferent from the conclusion arrived at by the trial court.Or else, the result would be failure of justice.35.It has been settled by various decisions of theApex Court that interference in appeal against acquittal ispermissible only when the finding of the trial court isperverse and contrary to law and facts. Thanedar Singh v.State of M.P. [2002(1) SCC 487]; Bodhraj v. State of J & K[(2002) 8 SCC 45; Kallu v. State of M.P. [2006(10) SCC 313]Chandrappa v. State of Karnataka [2007(4) SCC 415] andBatcu Venkiteshwaralu v. Public Prosecutor, High Court ofAndhra Pradesh [2009(1) Crimes 252 (SC)] are some of theleading decisions whereby it is ruled that to interfere withthe order of acquittal, there should be convincing reasonsfor differing with the decision of the trial court and if the Crl.Appeal No.1146/2005.-: 45 :-conclusions arrived by the trial court are probable on theevidence, it shall not be interfered even if an alternate viewis possible. 36. In Bodhraj's case (supra) the Apex Court furtherheld in para.29 as follows:“.......[B]ut where the relevantmaterials have not been considered toarrive at a view by the trial court,certainly the High Court has a duty toarrive at a correct conclusion taking aview different from the one adopted bythe trial court.”Here, as held by the Apex Court, in Bodhraj's case, thelearned Sessions Judge had failed to consider the relevantmaterials revealed in evidence. At the same time he hadgiven undue importance to extraneous and peripheralmaterials to disbelieve Pw1. As a result, the balance ofjustice was tilted against ground realities resulting denial ofjustice. Therefore, we are constrained to interfere with, tothe extent mentioned above. In the result, first respondentis liable to be convicted for offence under Sec.302 IPC. Crl.Appeal No.1146/2005.-: 46 :-37.With the materials on record, we find that this isnot a rarest of the rare case so as to award the maximumpunishment. We find that minimum punishment ofimprisonment for life with direction to pay of Rs.One lakh ascompensation to Pw5 would meet the ends of justice. In the result, the appeal is allowed in part. Whilereversing the judgment of acquittal against the firstrespondent, he is convicted for offence under Sec.302 IPCand sentenced to imprisonment for life. He is furtherdirected to pay Rs.One lakh as compensation to Pw5 underSec.357(3) of the Code of Criminal Procedure. In default ofpayment of compensation, the first respondent shallundergo simple imprisonment for a further period of twoyears. The first respondent is entitled to set off underSec.428 of the Code of Criminal Procedure, in the event thesentence against him is commuted under Sec.433 Crl.P.C.In all other respects the judgment of the learned SessionsJudge would stand confirmed. The trial court shall see the Crl.Appeal No.1146/2005.-: 47 :-execution of the sentence and report compliance. The firstrespondent shall surrender forthwith before the SessionsJudge for execution of sentence. K.BALAKRISHNAN NAIR (Judge) P.S.GOPINATHAN (Judge)Kvs/-