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PETITIONER:

K.RAMAKRISHNAN UNNITHAN

Vs.

RESPONDENT:

STATE OF KERALA

DATE OF JUDGMENT: 18/03/1999

BENCH:

G.B.Pattanaik, M.B.Shah

JUDGMENT:

PATTANAIK,J.

The appellant and his son stood charged for offences

under Sections 449, 341, 324 and 302 read with Section 34

IPC for having wrongfully restrained PW1 and hurting him

with a stick and for causing murder of deceased Kesava

Pillai, father of PW1 by stabbing him on his abdomen with a

knife on 17.4.1985 at 11 P.M. The learned Additional

Sessions Judge, on a thorough discussion of the entire

prosecution evidence came to hold that the prosecution has

failed to establish the charges beyond reasonable doubt and,

therefore, the two accused persons are entitled to be

acquitted and accordingly acquitted them of all the charges.

On an appeal being carried by the State, the High Court of

Kerala by the impugned Judgment affirmed the order of

acquittal passed by the learned Additional Sessions Judge so

far as the son is concerned but reversed the order of

acquittal of the appellant herein and convicted him under

Section 302 as well as under Section 324 IPC. For his

conviction under Section 302 IPC, he was sentenced to

imprisonment for life and no separate sentence was passed

for his conviction under Section 324.

The prosecution case in the nutshell is that the

relationship between the accused and the deceased Kesava

Pillai was strained as the deceased had helped one Velu

Pillai with whom the accused had some property dispute. On

17.4.85 at 11 P.M. while PW1 was sitting on the varandah of

a shop near his own house, the accused-appellant and his

wife passed by that way. As it was dark, PW1 could not

recognise them and enquired about their identity, whereupon

the accused-appellant used some abusive language and PW1 in

turn, also abused the appellant. On this score, there was a

scuffle but on the dissuasion of the wife of the appellant,

he left the place. Few minutes later while PW1 reached the

door-step of his house, the appellant accompanied by his son

(the acquitted accused) reached there and the second accused

dealt a blow on the head of PW1 with a stick and then caught

hold of him and then the present appellant stabbed him with

a knife. On hearing Hullah, the sister of PW1 rushed to the

scene. At that stage when father of PW1 reached the scene

of occurrence, the appellant stabbed him on his abdomen on

account of which he ultimately died in the hospital on the

next day at 11.30 A.M. Statement of PW1 was recorded at

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1.15 A.M., which was treated as F.I.R., on the basis of

which investigation started and on completion of

investigation, charge- sheet was submitted by the Police.

On being committed, the two accused persons stood their

trial. The prosecution examined as many as 17 witnesses and

exhibited a large number of documents of whom PWs 1 to 3 are

the eye witnesses to the occurrence. Of these eye

witnesses, PW3 is the daughter of the deceased whereas PW2

is a neighbour. PW8 is the doctor, who had examined the

accused No. 1 and issued the wound certificate. PW9 is the

doctor who conducted the autopsy on the dead body of the

deceased Kesava Pillai and exhibit P15 is the post-mortem

certificate. PW14 is the doctor who attended the deceased

Kesava Pilla as well as PW1 in the Medical College Hospital

on the night of occurrence. The defence version as

reflected in the statement of the accused-appellant under

Section 313 Cr.P.C. is that there was a marriage proposal

emanated from the deceased but the same did not materialise

and on that score there was an enmity. On the date of

occurrence, while the appellant and his wife had gone for a

marriage negotiation of their son, PW1 was waiting on the

road. When he found that the appellant and his wife are

coming , PW1 abused them but the appellant came away and

while he reached near the house of PW1, deceased Kesava

Pillai suddenly came on the road with a knife and attacked

him. The appellant attempted to escape from such attack and

caught hold of the knife and at that point of time, stones

were thrown by PW1 and his father. While the appellant had

caught hold of the hand of deceased Kesava Pillai who had a

knife in his hand, a scuffle ensued and deceased Kesava

Pillai fell down and sustained the injuries on his abdomen

on that score. The further plea is that it is the acquitted

accused No. 2, seeing the scuffle, informed the Police

Control Room, whereupon the Mobile Police Vehicle came and

picked up the injured PW1 and the deceased and removed them

to the hospital and PWs 2 and 3 were never at the scene of

occurrence. On the basis of the medical evidence of the

doctor, who treated deceased Kesava Pillai in the hospital

and the post-mortem report, the learned Sessions Judge came

to the conclusion that deceased Kesava Pillai died as a

result of penetrating injuries sustained on his abdomen and

the death is homicidal in nature. Examining the question as

to whether it is the appellant who caused the injury on the

deceased by stabbing blow with the means of a knife, the

learned Sessions Judge scrutinised the evidence of PWs 1-3

and also scrutinised the medical evidence with relation to

the injury found on the deceased as well as the injury found

on the person of PW1 and came to hold that the story of

alleged cause of injury on the occipital region of PW1 as

spoken to by the eye witnesses stand totally discredited and

disproved by the evidence of PW14 and the injury certificate

Exhibit P11. The learned Sessions Judge accordingly

recorded a finding that the first part of the occurrence

regarding the alleged beating on the head of PW1 by the

appellant with the stick as spoken by the witnesses stands

discredited by the evidence of PW14. The learned Sessions

Judge also rejected the contention of the defence that the

non-explanation of the injuries on the accused is fatal to

the prosecution as such injuries are superficial in nature

being a linear abrasion over the left thenar and the linear

abrasion on the hypothenar eminence. But on examining the

evidence of the three eye witnesses as well the suspicious

circumstances appearing in the prosecution case, the

Sessions Judge came to hold that the accused No. 2 was

never present at the scene of occurrence and he was falsely

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implicated upon by the three eye witnesses. He also further

found that when the witnesses have tried falsely to

implicate such person and on account of the inconsistencies

between their statements, doubt is created in the mind of

the court as to the trustworthiness of the prosecution

witnesses and, therefore, it must be held that the

prosecution failed to establish the charges against the

accused persons beyond reasonable doubt. With these

findings the two accused persons being acquitted, the State

preferred an appeal to the High Court. The High Court by

the impugned Judgment, affirmed the order of acquittal of

accused No. 2 Sreenivasan. But on re- appreciating the

evidence of the eye witnesses and relying upon the same,

came to hold that the prosecution has succeeded in proving

beyond all reasonable doubt that the accused-appellant had

inflicted stab injury on the deceased, besides inflicting

injuries on PW1 and as such he is liable for being convicted

under Section 302 as well as under Section 324IPC. For such

conviction he was sentenced to imprisonment for life.

Mr. U.R. Lalit, the learned Senior Counsel,

appearing for the appellant contended that though the power

of the High Court while sitting in judgment against an order

of acquittal is the same as in appeal against a conviction

and the court can re-appreciate the entire evidence on

record but in case of an appeal against an order of

acquittal the court is duty bound to examine the reasons on

which the order of acquittal was based and should interfere

with the order after being satisfied that the view taken by

the acquitting Judge was clearly unreasonable. If the

impugned judgment is examined from the aforesaid stand

point, it would appear that the High Court has not adverted

to the reasons given by the Sessions Judge in recording the

order of acquittal and, therefore, reversal of an order of

acquittal by the High Court should be interfered with. Mr.

Lalit also further contended that the very fact that the son

of the appellant was falsely implicated by the eye witnesses

would itself discredit the witnesses and on such discredited

version, the role ascribed to the appellant could not have

been relied upon. Mr. Lalit further urged that though the

learned Sessions Judge came to the positive conclusion after

a thorough analysis of the evidence that the defence plea

was more probable but the High Court never focussed its

attention to the same and has not discussed any thing on

that score, which approach vitiates the impugned judgment.

Mr.Lalit also urged before us that the prosecution not

having come forward with a true and correct version of the

occurrence, the accused is entitled to the benefit of doubt

and, therefore, the order of acquittal should not have been

interfered with by the High Court. Lastly, Mr. Lalit urged

that even assuming the blow given by the appellant on the

deceased can be said to have been established beyond

reasonable doubt but that would not constitute the offence

under Section 302 and at the most the offence would be one

under Part II of Section 304.

The learned counsel appearing for the respondent on

the other hand submitted that it is too well settled that

the High Court while sitting in an appeal against an order

of acquittal can re-appreciate the entire evidence on record

and having done so and having found the witnesses to be

reliable, there is no infirmity with the conviction of the

appellant under Section 302 IPC. According to the learned

counsel for the respondent, the substratum of the

prosecution story that the appellant gave a fatal blow on

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the vital part of the deceased on account of which the

deceased ultimately succumbed is established through the

cogent and consistent evidence of the three witnesses and

such evidence is corroborated by the medical evidence of the

doctor who treated the deceased at the hospital as well as

the doctor who conducted the autopsy on the dead body and,

therefore, the conclusion of the High Court that the

prosecution case against the appellant has been proved

beyond reasonable doubt is unassailable and cannot be

with. The plentitude of power available to the court,

hearing an appeal against acquittal is the same as that

available to a court hearing an appeal against an order of

conviction. But however the court will not interfere solely

because a different plausible view may arise on the

evidence. In a case of murder, if the reasons given by the

trial court for discarding the testimony of the eye

witnesses are not sound, then there should be no hesitation

on the part of the High Court in interfering with an order

of acquittal. If the Judgment of the trial judge was

absolutely perverse, legally erroneous and based on wrong

testimony, it would be proper for the High Court to

interfere and reverse an order of acquittal. Having

examined the judgment of acquittal passed by the learned

Sessions Judge and the impugned Judgment of the High Court,

reversing the said judgment of acquittal and on scrutinizing

the evidence of the three eye witnesses, though we find some

substance in the grievance of Mr. Lalit, appearing for the

appellant that the High Court has not adverted to all the

reasons given by the trial Judge for according an order of

acquittal, but it is difficult for us to come to hold that

the High Court exceeded its jurisdiction and the parameters

fixed for interference with an order of acquittal. We find

the approach of the learned Sessions Judge in recording an

order of acquittal was not proper and the conclusion arrived

at by the Sessions Judge on several aspects is

unsustainable. Even though, the eye witnesses appear to

have exaggerated their version and improved upon their

version in giving a role to the accused No. 2 for which an

order of acquittal passed by the Sessions Judge has been

affirmed by the High Court but to bring home the charge of

murder against the appellant on the ground that he gave a

stabbing blow on the deceased on a vital part by means of a

knife, while he came out of his house has been consistently

narrated by the three eye witnesses. There has been no

embelishment or exaggeration of these eye witnesses so far

as the role ascribed to the appellant from their previous

version to the Police is concerned. Thus the basic

prosecution case as unfolded through the testimony of the

aforesaid three witnesses is fully corroborated by the

medical evidence of the two doctors and, therefore, the

learned Sessions Judge was not justified in discarding this

part of the prosecution case and in acquitting the appellant

and the High Court, therefore, was fully entitled to

re-appreciate the evidence of these witnesses and record its

own conclusion on the question whether the evidence of the

eye witnesses that the appellant gave the stabbing blow on

the deceased can at all be sustained or not. We have

ourselves scrutinized the evidence of the three eye

witnesses and we are of the considered opinion that the

reasons adduced by the trial court for discarding their

testimony were not at all sound. On the other hand, the

evaluation of the evidence made by the trial court was

manifestly erroneous and, therefore, it was the duty of the

High Court to interfere with an order of acquittal passed by

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the learned Sessions Judge. In this view of the matter, we

are unable to accept the ultimate submission of Mr. Lalit

that the High Court exceeded its limit in interfering with

an order or acquittal passed by the learned Sessions Judge.

The question then remains for consideration is whether

on the materials on record can it be said that the appellant

gave the blow on the deceased with the intention of causing

murder of the deceased so as to be convicted under Section

302 IPC. The eye witness account of the three eye witnesses

is to the fact that when PW1 cried aloud, his sister rushed

there and at that point of time his father, the deceased

came out, opening the door and asked as to why his son is

being beaten up and then the appellant stabbed the deceased

on his abdomen with the knife. The post-mortem report of

the deceased indicates existence of a sutured incised wound

inverted "L" shaped on the left side of the abdomen, the

vertical limb was parallel to the midline, 4 cms. in length

and the horizontal limb from its upper and measured 3 cms.

and was placed 1.3 cms. to the left of midline and the

junction of the two limbs were at the level 25 of umbilicus.

The wound entered the abdominal cavity. The doctor PW14,

who was working as tutor in surgery, Medical College,

Trivandrum and was in the casualty on 17.4.85, in his

evidence stated that the deceased had an incised wound 4

cms. long below the umbilicus, left to the midline of the

body with a part of the intestine protruding out and that is

the only injury. The doctor who conducted the autopsy, PW9

in his evidence also stated that though there are three

injuries on the deceased as per the post-mortem report, but

injury Nos. 1 and 3 are surgical injuries and injury No. 2

is the inflicted injury. Thus it is established beyond

reasonable doubt that the appellant had given one blow but

the blow no-doubt was quite severe, as a result of which the

intestines had protruded out . It is however crystal clear

that the appellant had no animosity against the deceased and

he was involved because of the altercations with PW1. The

scenario in which the appellant has been stated by the eye

witnesses to have given one blow on the deceased, it is

difficult for us to hold that he gave the blow in question

either with the intention of causing murder of the deceased

or he can have said to have the requisite knowledge that the

death would otherwise be the inevitable result. In such a

situation, even on accepting the prosecution case we hold

that the accused did not commit the offence under Section

302 but under part II of Section 304 IPC. We accordingly,

set aside the conviction of the appellant under Section 302

IPC and instead, convict him under Section 304 Part II. The

incident is of the year 1985 and more than 13 years have

elapsed. The accused is on bail pursuant to the orders of

this court dated 6th February, 1992. Mr. Lalit, appearing

for the accused-appellant stated that he has already

undergone sentence of about four years. In such

circumstances, for his conviction under Section 304 Part II

IPC , we sentence him to the period already undergone. His

conviction under Section 324 IPC remains unaltered but no

separate sentence is being awarded. This Criminal Appeal is

disposed of accordingly. The bail bond furnished by the

appellant stands discharged.