IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 361 of 2005()
1. STATE OF KERALA,
... Petitioner
Vs
1. JOSEPH @ PAPPACHAN,
... Respondent
For Petitioner :PUBLIC PROSECUTOR
For Respondent :SRI.C.M.TOMY
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :04/11/2008
O R D E R
K.BALAKRISHNAN NAIR &
M.C.HARI RANI, JJ.
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CRL.APPEAL NO. 361/2005-A
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Dated 4th November, 2008.
JUDGMENT
Balakrishnan Nair, J.
The State has come up in appeal, feeling aggrieved by the
acquittal of the respondent/accused in S.C.No.115/99 by the Sessions
Judge, Thodupuzha.
2. The accused was charge sheeted by the Circle Inspector of
Police, Kattappana for the offences punishable under sections 302 and
324 of the IPC. Roy, the brother of PW1 and the son of PW10, was the
person killed in the incident. There was previous enmity between the
accused and PW10. The accused was running a tea shop and a
butcher’s shop. PW10 owed some amount to him. The accused on
28.3.1997 demanded the amount due to him from PW10, openly in
front of others. He has abused him also. This led to PW10 filing a
complaint before the police against the accused, on the next day
CRA 361/05 2
morning. On the evening of 29.3.1997, the accused picked up a quarrel
with Roy and Reji, the children of PW10. There was exchange of
words and immediately, the accused took a knife and stabbed on the
left chest of Roy. It was followed by two more stabs. PW1 tried to
prevent the accused. Thereupon, he inflicted two stab injuries on the
right and left arms of PW1. Seeing the attack, PW10 rushed to the
scene. He was stabbed on his leg. There was some altercation and
struggle for a few minutes, as the three tried to catch hold of the
accused and overpower him, but he made good his escape. Mr.Roy,
who suffered injury on his chest, fainted and he was immediately taken
to the near-by hospital. From there, he was taken to a hospital at
Kattappana, where he was pronounced dead. P.Ws. 1 and 10 were
admitted there. Based on the information lodged by PW1, a crime was
registered against the accused for the offences under sections 302 and
324 of the IPC. PW12, the Sub Inspector of Police recorded Ext. P1
F.I. statement and prepared Ext. P1(a) body note of PWs 1 and 10 and
registered a crime as per Exhibit P1(b) FIR. Next day, PW12
conducted inquest on the body of the deceased and prepared Ext. P12
CRA 361/05 3
inquest report. The investigation was taken over by PW15, the Circle
Inspector of Police. He prepared the scene mahazar, seized the
relevant material objects, questioned the witnesses, completed the
investigation and laid the charge before the Judicial First Class
Magistrate’s Court, Nedumkandam. He had earlier sent the body for
post-mortem and obtained the post-mortem report. The relevant
material objects were sent for chemical analysis and reports from the
Forensic Science Laboratory were also obtained by him. On filing the
final report before the Judicial First Class Magistrate’s Court,
Nedumkandam, the case was committed for trial to the Sessions Court.
The accused pleaded not guilty to the charges framed against him under
Sections 302 and 324 of the IPC.
3. From the side of the prosecution, PWs 1 to 15 were
examined and Exts. P1 to P23 were marked. Material objects 1 to 9
were also produced and marked. From the side of the defence Exts.D1
to D10 were marked during the cross-examination of the prosecution
witnesses. Exts. D1 to D9 were the contradictions in the statement of
the witnesses before court, with reference to their earlier statements
CRA 361/05 4
recorded under Section 161 of the Cr.P.C. Ext. D10 was the
complaint stated to be filed by PW10 before the State Home Minister.
The accused was questioned under Section 313 of the Cr.P.C. The
accused denied the circumstances appeared against him in the
prosecution evidence and which were put to him. The trial court after
hearing both sides, found the accused not guilty and acquitted him. It
was held that the infliction of injury by the accused was in exercise of
his right of private defence. Aggrieved by the said order of acquittal,
the State has preferred this appeal.
4. The learned Public Prosecutor submitted that all the assailants
were unarmed. But, the accused stabbed Roy thrice and also stabbed
P.Ws.1 and 10, who came to rescue Roy. Therefore, the accused has
clearly exceeded his right of private defence. So, he is not entitled to
get the protection of Section 97 of the I.P.C. If that be so, the accused
is liable to be convicted under Section 302 or at any rate, under Section
304 of the I.P.C. In answer, the learned counsel for the
respondent/accused submitted that in the incident the accused sustained
injury behind his head and on his genitals. PW1 and his brother Roy
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were trained in karate, as evident from the deposition of PW5. The
said witness has also stated that PW10 is a hefty fellow. When
attacked by three persons, including the attack on his genitals, if the
accused stabs Roy, the same cannot be described as an action
exceeding the right of private defence. At any rate, the view taken by
the learned Sessions Judge, who had occasion to see the witnesses and
hear them, cannot be said to be perverse. Unless this Court finds that
the finding of the trial court is perverse, this Court is not justified in
interfering with an acquittal. So, the respondent/accused prayed for
dismissal of the appeal. Before referring to the rival contentions, we
will briefly refer to the evidence on record regarding the incident, in
which Roy was killed.
5. PW1 has stated as follows: Ext.P1 is the F.I. Statement given
by him before the Vandanmedu Police Station. The incident happened
at 6.30 p.m at Kochara Palam Junction on 29.3.1997. The witness was
standing along with his brother Roy at the said junction. The accused
came by their side and asked whether complaint will be made before
the police, if he demands payment of the money due to him.
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Thereupon Roy answered that if found necessary, complaint will be
filed. Immediately, the accused took a knife from his waist and stabbed
on the chest of Roy. Stab injuries were also inflicted on the neck and
left hand of his brother. When the witness tried to prevent the
accused from stabbing, he stabbed the witness on his right and left
arms. Thereupon, he and his brother cried aloud. Then PW10, their
father came to their side. The accused stabbed him on his leg. There
was some altercation and fight between the accused and three of them.
They tried to snatch the knife from the accused by force. But, the
accused escaped and ran away with the knife. All the three went to the
near-by Kochara Church Hospital and dressed their wounds and as
instructed by the doctor, they went to St.John’s Hospital at Kattappana.
On the way to that hospital, Roy breathed his last. The accused
demanded money and abused PW10. So, at 8 a.m on 29.3.1997,
PW10 filed a complaint before the police. Infuriated by that, the
accused attacked them. At the relevant time, there was electric light.
He identified M.O.1 knife. The accused was running a tea shop and a
butcher’s shop. He was also selling illicit arrack. The amount due to
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the accused was only Rs.1000/-. In the cross-examination, the witness
admitted that there is a case against them for hitting the accused
behind his head using a stone, crushing his genitals and also kicking
and beating him. But, the witness stated that they have not attacked
the accused and he does not know whether the accused was injured in
that incident. He has also stated that his father had filed a complaint
before Home Minister regarding the investigation of the crime by the
police. Ext.D1, which is a contradiction in the statement of the witness
with reference to his statement before the police, was marked through
that witness.
6. P.Ws.2, 3 and 4 turned hostile and they did not support the
prosecution. PW5, who is a relative of George (PW10) identified MO1
knife. He has stated that it was purchased by him and given to the
accused about one month prior to the date of incident. It was he who
took the injured to the hospital. In the cross-examination, PW5 stated
that PW1 and Roy knew karate. They were learning karate for the last
two years. He has also stated that PW10 is a hefty fellow and he used
to take liquor.
CRA 361/05 8
7. PW6 also turned hostile to the prosecution. PW7, the doctor
who was in-charge of the Health Centre, Vandanmedu conducted
autopsy on the body of Roy and issued Ext.P9 post-mortem certificate.
The following ante-mortem injuries were noted in Ext.P9:
“(1) Incised wound 6 cms above the left nipple 3 x 1
> cm., obliquely placed.
(2) Incised wound 2 = cm below the supra clavicular
notch to the right side 1 x 0.5 cm(3) Incised wound on the back of left upper arm 8 x 2
cm muscles exposed.
4) Incised wound on the inner aspect of left upper
arm 4 x 1 > cm, 12 cm away from the elbow joint.”
The witness has stated that those injuries could be caused using MO1
knife. Ext.P10 wound certificate of the accused was proved through
the said witness. PW8 is a witness to Ext.P13 scene mahazar. But, he
has turned hostile to the prosecution. PW9 is the witness to Ext.P12
inquest report.
8. PW10 stated as follows: The deceased Roy was his son. In
the incident in which Roy was killed, he and Reji (PW1) sustained
injuries. The incident took place between 6.30 p.m and 7 p.m. The
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incident happened about four years back. The scene of occurrence
was in front of the tea shop of Kochayan alias Sunny (PW6). On the
previous day of the incident the accused abused him a lot, using filthy
language. About that incident, on the next day he filed a complaint
before the Vandanmedu Police Station. He talked about the same to
one Mr.Thomachan. While so, his children Reji and Roy came in front
of the shop of Kochayan. They talked to the accused. Suddenly, the
accused took his knife and stabbed Roy. The witness rushed to the
scene and caught hold of Pappachan (accused). He inflicted 2 or 3 stab
injuries. Immediately Reji also caught hold of Pappachan (accused).
Both of them sustained stab injuries. Reji caught hold of the knife. The
witness and Roy caught hold of the accused. All the four fell by the
side of the road. The altercation/fight continued. Soon, it was seen
that Roy was fainting. So, the witness released the accused and
supported Roy. Immediately, Pappachan (accused) released himself
from the hold of Reji and made his escape, running with the knife. All
the three went in a jeep to Kochara Church Hospital. The doctor
examined and stated that Roy’s condition is serious. So, it was
CRA 361/05 10
suggested to take him to Kattappana Hospital. Somebody came with
another jeep. In that all the three along with 2 or 3 others went to
Kattappana St.John’s Hospital. Roy asked for water. On reaching the
hospital, the doctors pronounced that Roy was dead. The witness and
Reji were admitted in the hospital. The witness owned about Rs.1000/-
to the accused. Demanding that amount, the accused abused the
witness on Friday. On the date of incident, darkness has set in. But,
there was electric light in the shop of Kochayan. There was street light
also. He identified MO1 knife. In the cross-examination, he admitted
that there was a case, alleging that the accused was hit with a stone,
that his genitals were crushed and that he was kicked and beaten. The
witness and his children Reji and Roy were the accused in that case.
He admitted that he is a hefty fellow. He will take liquor occasionally.
He denied the suggestion that his children were trained in karate.
Ext.D5, a contradiction in the statement of the witness before the police
with reference to his statement before the court, was marked. A rough
translation of Ext.D5 reads as follows:
“Roy asked the accused why he is quarrelling with his
father PW10. The accused asked Roy whether his fatherCRA 361/05 11
will complain before the police, if the money due to him is
demanded. Roy replied, if it becomes necessary, complaint
will be filed. Saying that, Roy pushed the accused.”
The witness denied the suggestion of the defence that he and his
children were the aggressors. He also denied his statement before the
police that Reji caught hold of the genitals of the accused. The said
contradiction was marked as Ext.D8. PW10 stated that he has not sent
Ext.D10 complaint to the Home Minister of the State. In Ext.D10 the
incident is described in an entirely different fashion, when compared to
the version of the prosecution in this case. As per Ext.D10, which was
marked by the defence, some others were also involved in the killing of
Roy. The accused was only acting as a stooge of them.
9. PW11 turned hostile to the prosecution. He was the witness
to Ext.P14 seizure mahazar, as per which MO1 knife was recovered
under Section 27 of the Evidence Act. PW12 was the S.I of Police,
Vandanmedu at the relevant time. He recorded Ext.P1 F.I. Statement,
prepared Ext.P1(a) body note of P.Ws.1 and 10 and registered Ext.P1
(b) F.I.R. He also prepared Ext.P12 inquest report. PW13 is the Police
Constable, who arrested the accused on 7.4.1997, while he was
CRA 361/05 12
discharged from the Nedumkandam Taluk Hospital. PW14 is the
doctor working in St.John’s Hospital, Kattappana. He was examined
to prove the signatures of Dr.Padmakumar, who was working in that
hospital and who issued Ext.P15 wound certificate of PW1 and Ext.P16
wound certificate of PW10. The said witness has stated that the
injuries in Exts.P15 and P16 are minor and superficial. PW15 was the
investigating officer, who completed the investigation and laid the
charge before the Magistrate’s Court. Through him, the contradictions
from both sides were marked. Further, Ext.P23 FI Statement and
Ext.P22 FIR in the counter case (Crime No.34/1997 of Vandanmedu
Police Station) were also marked through PW15.
10. Going by the evidence on record, we feel that certain facts,
which we will refer now, are not seriously disputed by both sides.
There was some quarrel between the accused and PW10 on 28.3.1997.
PW10 aggrieved by that, filed a complaint before the Vandanmedu
Police Station against the accused in the morning of 29.3.1997. There
was some heated exchange of words between the accused and the two
children of PW10 on the evening of 29.3.1997. Thereafter, a fight
CRA 361/05 13
started in which both sides were injured. Roy, the son of PW10 was
fatally injured and breathed his last. If the accused was the aggressor,
he is liable to be convicted under Section 304 of the I.P.C. But, we
notice that even according to the prosecution, it was Roy, who started
the fight by pushing the accused. According to the prosecution,
immediately the accused took his knife and inflicted the fatal injury on
Roy. But, we notice from the materials on record that in the very
same incident the accused sustained injuries on the back of his head
and also on his genitals. Even according to the prosecution in the
counter case, those injuries were inflicted by PW10 and his two
children. If the accused inflicted the stab injury after his genitals were
caught hold of and crushed by PW1 or Roy, he will be fully justified
in exercising his right of private defence, to stab Roy to rescue himself.
In the counter case, the case of the accused, in which he is PW1, is that
Roy caught hold of his genitals, crushed and pulled it. Owing to pain,
he cried aloud. Going by the evidence of P.Ws.1 and 10 and the
version of the accused, it cannot be decided whether the accused
stabbed Roy first or whether he stabbed after Roy caught hold of his
CRA 361/05 14
genitals. Whether it was Roy or Reji, who caught hold of his genitals,
is also a disputed point in the counter case. We feel that having regard
to the nature of the evidence on record, it cannot be safely concluded
that immediately on pushing, the accused stabbed Roy. The possibility
that the accused stabbed Roy to get out of the hold on his genitals,
cannot be ruled out. So, we feel that the accused is entitled to get the
benefit of doubt in this case. The view taken by the trial court that the
accused exercised his right of private defence to get out of the attack of
three healthy persons, two of whom are trained in karate, is a plausible
view. This Court, if it disagrees with the findings of the trial court,
should give reasons for the same and thereafter enter its own findings,
evaluating the evidence. But, for that, this Court must be satisfied that
the view taken by the trial court is perverse and without reference to the
evidence on record. We are not inclined to hold like that. We feel that
based on the evidence on record the trial court has taken a plausible
view. This Court is not justified in interfering with the same, in
exercise of its power to entertain an appeal against acquittal.
CRA 361/05 15
In the result, we affirm the judgment of the learned Sessions
Judge and dismiss the appeal.
K.BALAKRISHNAN NAIR, JUDGE.
M.C.HARI RANI, JUDGE.
Nm/