PETITIONER: KURIAKOSE Vs. RESPONDENT: STATE OF KERALA DATE OF JUDGMENT01/02/1994 BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) REDDY, K. JAYACHANDRA (J) CITATION: 1994 SCC Supl. (1) 602 JT 1994 (1) 268 1994 SCALE (1)270 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
G.N. RAY, J.- This appeal is directed against the judgment
dated March 25, 1983 passed by the Division Bench of Kerala
High Court disposing of Criminal Appeal No. 37 of 1981 and
Criminal Revision Petition No. 32 of 1981. Both the said
appeals and the revision case arose out of the judgment
dated September 16, 1980 passed by the learned Additional
Sessions Judge, Kottayam in Sessions Case No. 37 of 1980.
By the said judgment, the learned Additional Sessions Judge
acquitted both the accused appellants from a charge under
Sections 447, 307, 302 and 34 IPC. The State of Kerala
preferred the said Criminal Appeal No. 37 of 1981 against
the judgment of acquittal and the complainant also moved a
revision petition against the said judgment being Criminal
Revision No. 32 of 1981. The High Court allowed the said
criminal appeal and convicted both the accused appellants
under Section 302 IPC and convicted each of them to suffer
rigorous imprisonment for life. In view of the said
decision rendered in the appeal, the criminal revision case
was disposed of without passing any order. The short facts
of the prosecution case are inter alia that 26th January was
St. Sebastian’s day which was celebrated with jubilation in
the locality. PW 1 Poulose, belonged to Vayala near
Koodalloor but later on shifted to Trichur after selling his
land and winding up his affairs in Vayala. He also came to
the said locality on January 26, 1980. The deceased, Varkey
had put up an enclosure on the road with an icon of St.
Sebastian. The said Varkey and the other deceased Chacko
together with PW 1 had been to the church in the evening.
Varkey asked the accused 1, Kuriakose, to pay contribution
for the said enclosure put up by Varkey at about 8.00 p.m.
on January 26, 1980. He refused to pay such contribution
and made some remarks on which there was an altercation
between Varkey and the said accused 1. It is alleged that
accused 1 assaulted Varkey on which PW 2, son of Varkey,
gave one blow to accused 1. Chacko had given two kicks to
the said accused. Accused 1 thereafter left the place
threatening the deceased and the others.
2.The locality in which the deceased and the accused had
been staying was an area intensely cultivated. The deceased
Varkey and the other deceased Chacko who was his brother had
lands where cultivation of tapioca and other crops used to
be carried out. Beyond the fields of Varkey and Chacko to
the north, accused 1 also had agricultural field having
banana cultivation. The features and location of the
property were exhibited in a plan Ext. A-6. The next
morning, namely on January 27, 1980 Varkey and Chacko had
been to the field in connection with their cultivation
activities. It is the prosecution case that
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while they were in the field accused 1 accompanied by his
son, accused 2, namely Jose Kappen went towards the field of
Varkey and Chacko and they came along the property of Varkey
and Chacko. Varkey protested to such moving on the property
of Varkey and told the accused that there was no way along
the said land. The first accused thereafter persisted in
walking along that way and challenged Varkey and Chacko.
Both the accused who kept knives covered in their sheaths
drew them out and accused 1 stabbed Varkey 3 to 4 times.
Varkey died on the spot. Accused 2 inflicted stab wounds on
Chacko and he also succumbed to those injuries on the spot.
PW 2, Sunny George, was then in the northern yard of the
house in the company of PW 1, Poulose and Pappu. Having
noticed the said murderous assault on Varkey and Chacko, PW
2 rushed towards the spot but he stumbled on a small bund
and fell down. PW 3, Devaria who had been returning home
after attending the service in the church heard the noise of
the quarrel in the field and rushed to the spot. PW 1 and
nephew of Varkey also rushed to the spot. When those
persons reached the place, Varkey and Chacko were found
dead. The first accused pulled PW 2 who had fallen after
stumbling by his leg and the accused 2 stabbed PW 2. A hue
and cry was raised by PW 1 and PW 3, Varkey’s wife and Pappu
the nephew of Varkey. Both the accused persons then fled
away from the place. PW 2 was taken to the Medical College
Hospital in a jeep by PW 3. PW 5, Dr E.E. Raja, examined PW
2 in the hospital and issued the wound certificate Ext. P-
2. The said PW 2 was discharged on February 6, 1980 from
the hospital and the said doctor also issued the Discharge
Certificate Ext. P-3 to PW 2. The Police Officer PW 9 of
Marangattupally Police Station rushed to hospital on coming
to know that PW 2 had been taken to the hospital and he
reached the hospital at about 9.00 a.m. and recorded the
statement given by PW 2 (Ext. P-1). He also prepared a
note after noticing the wound on the body of PW 2. Such note
is Ext. P-1 (A) and he took into custody lungi MO 4 worn by
PW 2. Thereafter, he returned to the police station and
registered Crime No. 4/80 and prepared the first information
report Ext. P-8. The investigation was later on taken over
by the Circle Inspector PW 10, and inquest on the dead
bodies was prepared being Ext. P-9 and P-10. Sheath of the
knife was found in the field which was seized being MO 1.
The dead bodies were sent to the Medical College Hospital
for postmortem examination. PW 6 conducted the postmortem
examination on Varkey and Chacko and issued the postmortem
certificates being Exts. P-4 and P-5.
3.The accused surrendered before the Circle Inspector and
they were interrogated by the Circle Inspector. Pursuant to
the statement made by accused 1 Ext. P-11 (a) knife (MO 2)
and sheath (MO 12) were recovered from the rubber machine
shed of the said accused. Similarly, knife (MO 3) was
recovered pursuant to the confession Ext. P- 11 (b) made by
accused 2.
4. Ten witnesses were examined by the prosecution and
documents P-1 to P-11 (b) were also exhibited. It appears
that one of the prosecution witnesses, namely Jose Kappen,
PW 4, was declared hostile. In the statement made under
Section 313, Criminal Procedure Code, accused 1 completely
denied the incident which happened on January 26, 1980 and
made a statement to the effect that when on January 27, he
was proceeding along the bund towards his own land he was
obstructed, kicked, fisted and beaten up by the deceased
along with Pappu and PW 2. He cried aloud and hearing his
cry, his son, accused 2 rushed there but the said accused 2
was also beaten up and fisted by the said
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persons and accused 1 somehow managed to escape from the
said place. The accused 2 also denied any incident
happening on the previous night and he made a statement to
the effect that having heard a cry in the field he rushed to
the spot and found that his father had been beaten by
Varkey, Chacko and PW 2. When he rushed to the place and
cried for help, he was also beaten and throttled. He
somehow escaped from the place, out of fear for life.
5. The learned Sessions Judge, however, acquitted both the
accused persons from the charges levelled against them. It
may be noted in this connection that at the hearing of the
said appeal and revision case, it was not disputed by the
learned counsel for the accused that although acquittal
order was justified the judgment of the learned Sessions
Judge was unsatisfactory and the points for the decision had
not been formulated and case of either party had not been
discussed properly.
6. From the facts and circumstances of the case and the
evidences adduced, it transpires that accused 1 had
agricultural property to the north of the property of the
deceased Varkey and Chacko. There is a bund running from
south to north along the agricultural field in question and
such bund is used by cultivators. At the time of the
incident, Pappu, nephew of Varkey, was also present near the
house of Varkey. PW 2 is Varkey’s son and Chacko, the
brother of Varkey had also come to the house of Varkey and
proceeded to the fields although he had a separate residence
of his own. The learned Sessions Judge inter alia held that
the knives which were used for the murder of the deceased,
(MO 2 and 3) stated to have been recovered by the police did
not contain any bloodstain on chemical examination. It was
held by the learned Sessions Judge that the first
information statement was shrouded in suspicion and the said
information report was not the one which had been given by
PW 2 at about 9.00 a.m. in the Medical College Hospital.
The learned Sessions Judge had indicated that the failure to
account for further developments on the basis of the
intimation given by the Medical Officer PW 5 who examined
the injured witness PW 2 was unusual. It was further
observed that the conduct of the SubInspector who although
got the information about the murder, proceeded to the
hospital and not to the scene of occurrence was also
unusual. According to the learned Sessions Judge, the
evidence of PW 1, a resident of Trichur and stated to be
present at the place of occurrence, also did not inspire
confidence. According to the learned Sessions Judge, the
evidence of PW 3 was unsatisfactory because he had omitted
to mention before the police about PW 2 falling down on the
eastern side of bund and having been stabbed on the left
side of the chest. According to the learned Sessions Judge,
PW 2 was an interested witness. In that view of the matter,
the learned Sessions Judge was of the view that the
prosecution case was not established and he acquitted both
the accused.
7.It was contended on behalf of the accused that accused
1 admittedly had bananaplantation beyond the field of
Varkey. He had therefore occasion to proceedtowards
his cultivated land. It was contended that the existence of
bund was beyond any dispute. Such bund was being used by
the cultivators as a passage to go to their respective
fields and the people as of right used to go along the bund.
The deceased had no right to obstruct such movement along
the bund. It was sought to be contended on behalf of the
accused that conspiracy was hatched on the previous night
against the accused and Varkey obstructed
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accused 1 from going to his field. On such obstruction,
accused 1 tried to assert the customary right of way which
led to a scuffle and then his son, accused 2, had rushed to
the spot. If due to such scuffle, the said two accused
persons had exercised the right of self-defence and both the
deceased had died as a result of such exercise of right of
self-defence, no conviction was warranted against the
accused persons. It was also contended that there was no
reason for both the deceased Varkey and Chacko to go to the
field early morning to see to the watering of the field
because the key of the pump house had not been found near
the area of scuffle. It was also contended that it was not
natural for the Sub-Inspector of the police to go to the
hospital instead of going to the place of occurrence when he
had received the information of murder. It was further
contended that there had not been proper investigation of
the case and a different first information report had been
substituted. Hence, the learned Sessions Judge was
justified in acquitting the accused persons and there was no
occasion to interfere in the appeal.
8.The case of the prosecution about the murder of the
said two deceased was sought to be established by three
eyewitnesses, namely PWs 1, 2 and 3. It has been observed by
the High Court that although PW 1 at the relevant time was a
permanent resident of Trichur, but it was the prosecution
case that he came on the said festive occasion of St.
Sebestian’s day and he also had his inlaws at Mayala. The
High Court has held that PW 1 admittedly used to stay in of
the locality of Varkey the deceased. It was not unusual for
him to come to the said village on the occasion of St.
Sebastian’s day because of his long association in the
locality. The High Court has also noted that his presence
at the place of occurrence also gets corroborated by the
fact that on the day of occurrence, he was examined by the
Sub-Inspector, PW 10. The High Court has also held that the
contention of the accused that the place of occurrence could
not be seen by PW 1 from the place where he was standing,
was unacceptable in view of the fact that there was a slope
and it was possible to see the place of occurrence.
According to the High Court, such feature and topography had
been ignored by the learned Sessions Judge. The High Court
has also held that the taking of coffee referred to in the
testimony of PW 1 has not been properly appreciated and the
morning coffee was sought to be substituted as a regular
breakfast. According to the High Court, the learned
Sessions Judge overlooked the social habits of the village
people and rejection of the testimony of PW 1 on such
improper view was unjustified and perverse. The High Court
has also held that the identification of the knife by PW 1
was not unnatural because he had occasion to see the same
and he had also given the description of the knives earlier
when he stated that the knives were Mallappuram knives. The
High Court has come to a categorical finding that the
reasons given in discarding the evidence of PW 1 are
absolutely untenable and without any substance. The High
Court has further held that PW 2 was an injured witness and
was taken to the hospital and it will be improper to reject
his evidence simply on the ground that he had not mentioned
that Chacko had been stabbed on the chest and that he had
not indicated the exact location where he himself had
sustained the injuries. It has also been held by the High
Court that since he is an interested witness, his evidence
is required to be scrutinised with care and circumspection.
The High Court has further held that PW 3 had deposed that
PW 2 had fallen on the
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eastern bund and the injuries were inflicted on him
thereafter by the accused. The omission to give the detail
to the police by PW 3 about the exact location where PW 2
had fallen and the place where stabbing injuries were
inflicted should not be highlighted out of proportion to
discard the evidence of PW 3. According to the High Court,
the evidence adduced by PWs 1, 2 and 3 are convincing and
should be accepted and if such evidences are accepted then
the murderous assault committed by the accused persons and
the injuries inflicted on PW 2 are fully established. The
High Court has also held that presence of Pappu in the house
of Varkey was not at all unnatural specially in the context
of an important event in the church at that time. The High
Court has held that the allegation of hatching the
conspiracy on the side of the prosecution cannot be accepted
because of the presence of Pappu or Chacko in the house and
in the field at the time of occurrence because both are very
close relations. The High Court has further held that the
existence of pathway used by villagers along the bund cannot
be accepted in view of the clear evidence given on behalf of
the prosecution. In this connection, the High Court has
referred to the evidence of PW 4. Although PW 4 was declared
hostile, the said PW 4 stated that there was no pathway
along the cultivated area and there was only a ridge. So
far as the recovery of knives with which the injuries were
inflicted is concerned, the High Court has indicated that
there was no suggestion in the cross-examination of the Sub-
Inspector, PW 10, about non-recovery of said knives. The
High Court has also come to the finding that almost
immediately after the occurrence, statement was made by PW 2
and the prosecution had also produced the first information
report before the Court and the said first information
report was also filed in the Magistrate’s Court. The High
Court has held that Ext. P-1 is a genuine document and the
circumstances under which it was recorded were properly
explained with reference to the documentary and oral
evidence.
9. Coming to the conclusion of right to private defence of
the accused, the High Court has observed that in the
statement under Section 313 Criminal Procedure Code, no plea
of right to private defence had been taken by any of the
accused. The High Court has held that there was no mischief
committed by either of the deceased for which there was any
occasion to exercise right of private defence and as there
was no customary right of pathway which might amount to
mischief such plea of self-defence was not at all
acceptable. The High Court has further held that even if
there was any customary right of pathway, there was no
occasion to inflict knife injuries on vital pans of the body
to cause instantaneous death of both the deceased for an
alleged interference with a right of pathway, when
admittedly, the deceased Varkey and Chacko had no weapons
with them. In the aforesaid facts, there was no occasion for
any threat to the person or to the property justifying
stabbing the deceased to death. The High Court has,
therefore, held that the judgment of the learned Sessions
Judge was completely against the weight of the evidence and
was perverse. Accordingly, the High Court set aside the said
judgment and convicted both the accused under Section 302
IPC and passed sentence to undergo rigorous imprisonment for
life against both of them.
10. The learned counsel for the appellant has
reiterated the arguments which were advanced at the hearing
of the appeal before the High Court. It has been sought to
be contended that not only the right of pathway was
obstructed
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by the deceased and their associates but they also assaulted
both the accused. It was only on such assault that there
was retaliation by the accused for which the said two
persons had died. It has been contended that in exercise of
right to selfdefence if knives were used to save the lives
of the accused no exception should be taken. It was riot
possible to weigh in golden scales the exact force which was
required to be applied by way of right of self-defence. If
in such a case, the deceased had suffered injuries on vital
parts which were not intended, the accused cannot be held to
be guilty for an offence under Section 302 IPC. It has been
contended that in any event in such a case, the conviction
under Section 302 was not warranted and at best if the
accused had exceeded the right of private defence, the
conviction under Section 304 IPC could have been awarded.
The learned counsel has, therefore, submitted that the
decision of the High Court is not proper particularly when
some features in the case of the prosecution were not
accepted fully by the learned Sessions Judge by indicating
cogent reasons. The learned counsel has submitted that
although the judgment passed by the learned Sessions Judge
may not be a well-written judgment for which criticism had
been advanced at the hearing of the appeal, it cannot be
held that the points indicated by the learned Sessions Judge
could not and did not warrant an order of acquittal.
11. After giving our anxious consideration to the facts and
circumstances of the case and the materials and evidences
adduced in the case, it appears to us that there are
clinching evidences to establish the prosecution case. In
our view, the High Court has given very cogent reasons as to
why the evidences of PWs 1, 2 and 3 should be accepted. PW
2 is an injured witness who made statement at the hospital
shortly after the incident when he was taken for treatment.
His evidence gets corroborated by the evidences given by the
other witnesses. The reasons advanced by the learned
Sessions Judge for discarding those evidences do not stand
scrutiny as rightly held by the High Court. It is not
necessary to consider about the incidents happening on the
previous night. If the murderous assault by the accused is
established by clear and clinching evidences of the
eyewitnesses, it will not be necessary to investigate the
motive behind such commission of offence. In our view, the
High Court is wholly justified in holding that the case of
right to self-defence cannot be accepted. The accused did
not plead any right to self-defence. On the contrary, they
simply stated that they were assaulted and out of fear for
life they escaped from the place of occurrence. That apart,
both the deceased were unarmed and serious injuries were
inflicted with knives on the vital parts of the bodies of
the deceased by the accused persons. The nature of such
injuries negatives any just plea for right to self-defence.
Accordingly existence of customary right of way need not be
considered in the facts of the case. We, therefore, find no
justification to interfere with the conviction and sentence
passed by the High Court. The appeal, therefore, fails and
is dismissed. The appellants were released on bail during
the pendency of this appeal. They should be taken into
custody to serve out the sentence imposed on them.
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