{"id":85288,"date":"2010-02-22T00:00:00","date_gmt":"2010-02-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chandran-vs-state-of-kerala-on-22-february-2010"},"modified":"2018-04-10T10:11:34","modified_gmt":"2018-04-10T04:41:34","slug":"chandran-vs-state-of-kerala-on-22-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chandran-vs-state-of-kerala-on-22-february-2010","title":{"rendered":"Chandran vs State Of Kerala on 22 February, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Chandran vs State Of Kerala on 22 February, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRL.A.No. 671 of 2005()\n\n\n1. CHANDRAN, S\/O. CHELLAPPAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA, REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :SRI.SURESH BABU THOMAS\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice R.BASANT\nThe Hon'ble MRS. Justice M.C.HARI RANI\n\n Dated :22\/02\/2010\n\n O R D E R\n             R.BASANT & M.C. HARI RANI,JJ\n\n        ==============================\n\n          CRL. A. NOS. 671 OF 2005 & 78 OF 2006\n\n         ============================\n\n     DATED THIS THE 22nd DAY OF FEBRUARY 2010\n\n                         JUDGMENT\n<\/pre>\n
Basant,J.\n<\/p>\n
     These appeals are preferred by the State and the first<\/p>\n
accused against a common impugned judgment rendered in a<\/p>\n
prosecution for offences punishable, inter alia, under Section<\/p>\n
302 read with Section 149 of the Indian Penal Code. Altogether,<\/p>\n
there were five accused persons.     They faced indictment for<\/p>\n
offences punishable under Sections 143,147,148,323,324 and<\/p>\n
302 read with Section 149 of the Indian Penal Code. Accused 2<\/p>\n
to 5 were found not guilty and acquitted. Accused No.1 was<\/p>\n
found guilty, convicted and sentenced under Section 304 (1)<\/p>\n
I.P.C.to undergo rigorous imprisonment for a period of five<\/p>\n
years.\n<\/p>\n
     2. The State claims to be aggrieved by the acquittal of all<\/p>\n
the accused against all charges levelled against them.<\/p>\n
CRA.NOS.671\/05 & 78\/06           -2-<\/span>\n<\/p>\n
–\n<\/p>\n
Notwithstanding the fact that the first accused has been<\/p>\n
convicted under Section 304(1)I.P.C., the State prays that all the<\/p>\n
accused deserved to be convicted for all the offences alleged<\/p>\n
against them. The State’s appeal, Crl.A.No.78\/2006, is directed<\/p>\n
against the acquittal of all the five accused and the conviction of<\/p>\n
the first accused for the offence under Section 304(1)I.P.C.<\/p>\n
alone. The first accused in Crl.A.No.671\/2005 assails the verdict<\/p>\n
of guilty, conviction and sentence of rigorous imprisonment for<\/p>\n
five years imposed on him under Section 304(1)I.P.C.<\/p>\n
     3. The crux of the charge against the accused persons is<\/p>\n
that they, at about 5 p.m.on 25-12-2001 in the court yard of a<\/p>\n
toddy shop, Chetty shop, in Manarcadu village of Ayarkunnam<\/p>\n
Panchyath, were members of an unlawful assembly with the<\/p>\n
common object of assaulting PWs.1,2 and the deceased. In<\/p>\n
prosecution of their common object, they were armed with<\/p>\n
dangerous weapons. They allegedly inflicted injuries on PWs.1,<\/p>\n
2 and the deceased with dangerous weapons like MO.1 (stick)<\/p>\n
and MO.2(stone). The deceased suffered serious injuries and<\/p>\n
succumbed to such injuries on the night of 25-12-2001.<\/p>\n
CRA.NOS.671\/05 & 78\/06           -3-<\/span>\n<\/p>\n
–\n<\/p>\n<\/p>\n
      4. The investigation commenced with Ext.P1 F.I.statement<\/p>\n
lodged by PW1 before PW23, Sub Inspector, on the basis of<\/p>\n
which Ext.P18 F.I.R.was registered.       The investigation was<\/p>\n
completed and the final report\/charge sheet was filed by PW26.<\/p>\n
A counter case was also     registered on the basis of Ext.P26<\/p>\n
F.I.S.lodged by accused No.2. Ext.P25 is the F.I.R. registered.<\/p>\n
Ext.P27 is the final report\/charge sheet filed after completing<\/p>\n
the investigation in the counter case. PW26 had filed such final<\/p>\n
report in the counter case also. In the said final report in the<\/p>\n
counter case, allegations were raised against the deceased, PW1<\/p>\n
and PW2 that they had caused injuries to accused 2,4 and 5 and<\/p>\n
had thereby committed offences under Sections 323 and 324<\/p>\n
read with Section 34 I.P.C.\n<\/p>\n
      5. The case against the five accused persons was committed<\/p>\n
to the court of Sessions. Accused 1 to 5 denied the charges<\/p>\n
framed against them and thereupon the prosecution examined<\/p>\n
PWs.1 to 26 as witnesses.       Exts.P1 to P27 were marked as<\/p>\n
documents.     MOs.1 to 18 were also marked.        The accused<\/p>\n
persons in the course of 313 examination took up the stand that<\/p>\n
CRA.NOS.671\/05 & 78\/06           -4-<\/span>\n<\/p>\n
–\n<\/p>\n
they were absolutely innocent. According to them, there was a<\/p>\n
free for all in the toddy shop for which they were not responsible<\/p>\n
and accused 1,2,4 and 5 had suffered injuries. They did not<\/p>\n
adduce any oral evidence on their side. But Exts.D1 series –<\/p>\n
case diary contradictions of PW2 were marked.<\/p>\n
     6. The learned Sessions Judge on an anxious consideration<\/p>\n
of all the relevant inputs came to the conclusion that the<\/p>\n
prosecution has not succeeded in proving the charges levelled<\/p>\n
against all the accused. But, the court however came to the<\/p>\n
conclusion that the charge against accused No.1 stands<\/p>\n
established to the      extent that he is guilty of the offence<\/p>\n
punishable under Section 304(1) I.P.C. The court came to the<\/p>\n
conclusion that accused No.1 was guilty of the alleged overt acts<\/p>\n
against the deceased which caused his death. But, the court<\/p>\n
however came to the conclusion that he had exceeded his right<\/p>\n
of private defence. It is accordingly that conviction was entered<\/p>\n
under Section 304(1)I.P.C.against the appellant\/first accused<\/p>\n
alone.\n<\/p>\n
CRA.NOS.671\/05 & 78\/06          -5-<\/span>\n<\/p>\n
–\n<\/p>\n<\/p>\n
     7. The appellant-first accused,in Crl.A.No.671\/2005, assails<\/p>\n
the verdict of guilty, conviction and sentence against him under<\/p>\n
Section 304(1) I.P.C. whereas the State assails the acquittal of<\/p>\n
all the accused for the charges levelled against them in<\/p>\n
Crl.A.No.78\/2006.\n<\/p>\n
     8. We have been taken through the oral evidence of PWs.1<\/p>\n
to 26 and the documentary evidence, Exts.P1 to P27 and Ext.D1<\/p>\n
series. 313 statement of the accused have been read over to us<\/p>\n
in detail.\n<\/p>\n
     9. An appellate judgment is essentially a continuation of the<\/p>\n
judgment of the trial court. It must be read as such. We do not,<\/p>\n
in these circumstances, venture to re-narrate the evidence relied<\/p>\n
on by the prosecution and the defence. Suffice it to say that we<\/p>\n
have been taken through and we have anxiously considered all<\/p>\n
the pieces of evidence and matters before the court below.<\/p>\n
     10. Both the prosecution and defence complain that the<\/p>\n
court below has not applied itself to the questions raised before<\/p>\n
it properly and seriously. The court below has not attempted to<\/p>\n
ascertain and enter any specific finding on the genesis of the<\/p>\n
CRA.NOS.671\/05 & 78\/06            -6-<\/span>\n<\/p>\n
–\n<\/p>\n
dispute. The court below in its judgment has not explained how<\/p>\n
the first accused is entitled for a right of private defence or the<\/p>\n
manner he has exceeded such right of private defence. Both the<\/p>\n
learned Prosecutor as well as the learned counsel for the<\/p>\n
appellant contend that the impugned judgment of the court<\/p>\n
below is far from satisfactory. We find merit in that submission.<\/p>\n
It is unfortunate that the court below has not properly applied<\/p>\n
itself to the materials before it to ascertain the precise manner in<\/p>\n
which the incident must have commenced, proceeded and<\/p>\n
culminated. In a case where allegations and counter allegations<\/p>\n
are raised and a case and counter case in relation to the same<\/p>\n
incident are filed by the police, the burden undoubtedly is heavy<\/p>\n
on the court to ascertain the precise nature of the sequence of<\/p>\n
events in the incident.     In such a case, findings cannot be<\/p>\n
entered into without properly ascertaining the genesis as also<\/p>\n
the sequence of incidents.\n<\/p>\n
      11. We are undoubtedly dissatisfied with the judgment of<\/p>\n
the court below. We shall therefore attempt to undertake the<\/p>\n
exercise which the court below must have resorted to. For this<\/p>\n
CRA.NOS.671\/05 & 78\/06         -7-<\/span>\n<\/p>\n
–\n<\/p>\n
purpose, we will advert to the evidence, oral and documentary,<\/p>\n
wherever necessary and shall try to assess and evaluate the<\/p>\n
case and evidence of the prosecution vis-a-vis the case advanced<\/p>\n
by the defence.\n<\/p>\n
       12.   That the deceased suffered injuries described in<\/p>\n
Ext.P10 postmortem certificate and Ext.P19 wound certificate is<\/p>\n
beyond controversy. It appears to us that it is easy to readily<\/p>\n
conclude that the deceased had injuries described in Exts.P19<\/p>\n
and P10 and suffered death on account of injury No.3 described<\/p>\n
in Ext.P10 suffered by him on his head. There are several other<\/p>\n
injuries found on the person of the deceased. Altogether, there<\/p>\n
are 32 injuries suffered. Detailed explanation for these injuries<\/p>\n
is not forthcoming from the prosecution. Injury No.3 itself as<\/p>\n
stated by PW15 was sufficient in the ordinary course of nature to<\/p>\n
cause death. It could be caused with MO.1. The other injuries,<\/p>\n
evidence of PW15 and PW24, indicates could have been suffered<\/p>\n
by him when stones were thrown at him.\n<\/p>\n
      13. The prosecution has a further case that PWs.1 and 2<\/p>\n
had also suffered injuries.    The injury suffered by PW1 is<\/p>\n
CRA.NOS.671\/05 & 78\/06           -8-<\/span>\n<\/p>\n
–\n<\/p>\n
described in Ext.P12 issued by PW16. Exts.P20 and P21 are<\/p>\n
O.P.tickets issued by PW24 in respect of PW1. What is important<\/p>\n
to note is that Ext.P12 only shows that PW1 had mobility of two<\/p>\n
teeth, suspected right condylar fracture and pain in the left arm<\/p>\n
which was fractured earlier and was in plaster cast even before<\/p>\n
the commencement of the incident. Suspected right condylar<\/p>\n
fracture was later ruled out after radiological examination. What<\/p>\n
is important to note that though PW1 claims to have suffered<\/p>\n
injuries, Ext.P12 wound certificate and the oral evidence of<\/p>\n
PW16 does not         convincingly support that version of the<\/p>\n
prosecution.\n<\/p>\n
      14. The prosecution has a version that PW2 had suffered<\/p>\n
injuries. Significantly there is not a scintilla of evidence even to<\/p>\n
remotely suggest that he had actually suffered any injuries.<\/p>\n
There is no medical evidence whatsoever on this aspect.<\/p>\n
      15. We have adverted to the injuries on the deceased, PW1<\/p>\n
and PW2 as it is the burden of the courts to ascertain how and<\/p>\n
under what circumstances they had suffered the injuries. That is<\/p>\n
CRA.NOS.671\/05 & 78\/06         -9-<\/span>\n<\/p>\n
–\n<\/p>\n
the primary duty of the court in this prosecution against the<\/p>\n
accused persons.\n<\/p>\n
       16. We shall briefly narrate the precise case of the<\/p>\n
prosecution as spoken to by PWs.1 and 2 . The deceased, PW1,<\/p>\n
PW2, PW7 and one Ganesh were available at the house of PW1.<\/p>\n
PW1 is the brother of the deceased.    They started from their<\/p>\n
house in two motor cycles to the toddy shop. PW1, PW2 and<\/p>\n
PW7 travelled in one motor cycle. They reached the toddy shop<\/p>\n
first. Deceased and the said Ganesh(who has not been examined)<\/p>\n
came in a scooter and they reached the toddy shop later.<\/p>\n
Accused 1 and 2 and others were at that point of time available<\/p>\n
in the toddy shop and they were drinking. They were allegedly<\/p>\n
singing songs aloud. On this score, a quarrel ensued and PW2<\/p>\n
was involved in that quarrel. Father of PW.1 and the deceased,<\/p>\n
i.e. PW10 came to the toddy shop. Probably seeing his children<\/p>\n
(PW1 and the deceased) there, he went out of the toddy shop. At<\/p>\n
that time accused 1 and 2 also went out of the toddy shop.<\/p>\n
PWs.1 and 2 were available at the toddy shop. Outside the<\/p>\n
toddy shop, there was a quarrel.    PWs.1, 2, the deceased and<\/p>\n
CRA.NOS.671\/05 & 78\/06          -10-<\/span>\n<\/p>\n
–\n<\/p>\n
PW7 came to the spot where the quarrel was going on. Accused<\/p>\n
1 and 4 as also PW10 were involved in the quarrel.            PW1<\/p>\n
intervened in that quarrel. That quarrel was about accused<\/p>\n
No.4 causing tar to be fallen on the shirt of PW10.           PW1<\/p>\n
immediately sent his father,PW10 to his house in PW7’s two<\/p>\n
wheeler. That incident continued. According to PW1, there was<\/p>\n
unintentional accidental injury suffered by accused 4 on his nose<\/p>\n
at that time. PWs.1 and 2 wanted to attend on accused 4 and<\/p>\n
make medical assistance available to him. They, therefore, took<\/p>\n
accused 4 to a spot. Accused 4 was bleeding through his nose.<\/p>\n
At this juncture, accused 1,2, 3 and 5 allegedly reached the<\/p>\n
scene. Accused 1 and 2 were armed with MO.1 stick and MO.2<\/p>\n
stone respectively. Accused No.1 attacked PW2. He beat PW2<\/p>\n
with MO.1 stick. All the five accused allegedly attacked PW1<\/p>\n
initially and the deceased later. At the end of the incident, PW1,<\/p>\n
PW2, the deceased and accused 2,4 and 5 had injuries on their<\/p>\n
person. According to the prosecution, it was A1 who beat PW1,<\/p>\n
PW2 and the deceased with MO.1 stick.           A2 had allegedly<\/p>\n
wielded MO.2 stone to attack PW1 and the deceased. Accused<\/p>\n
CRA.NOS.671\/05 & 78\/06        -11-<\/span>\n<\/p>\n
–\n<\/p>\n
3,4 and 5 also had joined accused 1 and 2 in the attack. It is the<\/p>\n
case of the prosecution that Accused 1 to 5 were members of an<\/p>\n
unlawful assembly and were acting       in prosecution of their<\/p>\n
common object to attack PWs.1 and 2 and the deceased.<\/p>\n
      17. We have carefully gone through the charge against the<\/p>\n
accused and the precise allegations raised against the accused<\/p>\n
by PW1 in Ext.P1. We have also considered the evidence<\/p>\n
tendered by PWs.1 and 2 on oath to ascertain the precise nature<\/p>\n
of the charge which the prosecution wants to raise against<\/p>\n
accused 1 to 5.\n<\/p>\n
      18. In support of this charge, the prosecution wanted to<\/p>\n
make available to the court the oral evidence of PWs.1 to 5 and<\/p>\n
PWs.11 and 12. Of this PWs.3,4,5, 11 and 12 did not support the<\/p>\n
prosecution version at all.  The prosecution was left with the<\/p>\n
oral evidence of PWs.1 and 2 alone. PW2, though he broadly<\/p>\n
supported the prosecution case, did not support the charges<\/p>\n
levelled against the second accused.   According to him, he did<\/p>\n
not know the 2nd accused and he did not raise any allegations<\/p>\n
against him. On the strength of the evidence of PWs.1 and 2, we<\/p>\n
CRA.NOS.671\/05 & 78\/06          -12-<\/span>\n<\/p>\n
–\n<\/p>\n
have to ascertain whether the injuries on PW1 and the deceased<\/p>\n
were caused by accused 1 to 5 acting in furtherance of the<\/p>\n
common object of the unlawful assembly of which they are<\/p>\n
allegedly members.\n<\/p>\n
      19. The learned counsel for the accused contends that the<\/p>\n
oral evidence of PWs.1 and 2 is not worth on the paper on which<\/p>\n
it is written. According to the learned counsel, oral evidence of<\/p>\n
PWs.1 and 2 is totally unacceptable, artificial and improbable.<\/p>\n
Reliance cannot be placed on such testimony.              Ext.P1<\/p>\n
F.I.statement was lodged long later at 6 a.m.on 26\/12\/2001. The<\/p>\n
F.I.R.was prepared at 8 a.m. and the same reached the court<\/p>\n
only at 4 p.m. on the same date.     Counsel contends that PW1<\/p>\n
had ample time to cook and concoct the story to raise false<\/p>\n
allegations against the accused.     PW1 was involved in many<\/p>\n
crimes admittedly on his own version. His version is inherently<\/p>\n
unacceptable as      his allegations against accused persons in<\/p>\n
respect of assault on him is not supported at all by the injuries<\/p>\n
found on his person recorded by PW16 in Ext.P12. His version<\/p>\n
that PW2 had suffered injuries is not supported by any medical<\/p>\n
CRA.NOS.671\/05 & 78\/06          -13-<\/span>\n<\/p>\n
–\n<\/p>\n
evidence at all. If his evidence were accepted, PW2 was not<\/p>\n
available at the scene to witness the latter part of the incident<\/p>\n
and no reliance can be placed on the evidence of PW2. The<\/p>\n
evidence of PW1 does not also explain the injuries found on<\/p>\n
accused 2,4 and 5. We have been taken in detail through Ext.P9<\/p>\n
scene mahazar which suggests that a free for all must have taken<\/p>\n
place at the scene of the crime. Broken bottles and scattered<\/p>\n
personal belongings were there      at the scene.     But the oral<\/p>\n
evidence of PW1 does not at all explain the facts perceived by<\/p>\n
the investigating officer recorded in Ext.P9. The learned counsel<\/p>\n
for the accused further points out that if the evidence of PW1<\/p>\n
were believed, it clearly and definitely indicates that he was<\/p>\n
responsible for the first injury suffered by any person in the<\/p>\n
incident   that took place, i.e. the injury suffered by the 4th<\/p>\n
accused Mohanan.      PW1 has attempted to sell the idea to the<\/p>\n
court that    accused 4 suffered the injuries accidentally and<\/p>\n
unintentionally. The explanation is artificial and it would be idle<\/p>\n
for any prudent mind to readily swallow that version of PW1.<\/p>\n
The learned counsel for the accused further points out that PW1<\/p>\n
CRA.NOS.671\/05 & 78\/06         -14-<\/span>\n<\/p>\n
–\n<\/p>\n
now wants the court to believe that he and PW2 had taken A4<\/p>\n
innocently to the scene of the present crime from where he<\/p>\n
suffered injury to ensure that he was given medical assistance.<\/p>\n
The version of PW1 clearly shows that it was not an innocent<\/p>\n
removal of A4 to render medical assistance to him. But it must<\/p>\n
have been a clear case of illegal detention of A4 out of malice.<\/p>\n
The learned counsel further points out that the version of PW1<\/p>\n
does not at all explain the other injuries found on the person of<\/p>\n
the deceased. There is only an attempt to explain the fatal<\/p>\n
injury on the head suffered by the deceased. The responsibility<\/p>\n
for that   injury is   conveniently attributed to A1 by PW1,<\/p>\n
contends the counsel.\n<\/p>\n
     20. The learned counsel argues that all these inadequacies<\/p>\n
in the evidence of PW1 is repeated in the evidence of PW2. PW2<\/p>\n
does not attribute to any overt act to Accused No. 2. Though he<\/p>\n
stated that he (PW2) suffered injuries, no injuries are found on<\/p>\n
his person. If the evidence of PW1 were accepted, PW2 could<\/p>\n
not have witnessed the overt acts of the accused against PW1<\/p>\n
and the deceased as he had run away to safety after suffering the<\/p>\n
CRA.NOS.671\/05 & 78\/06         -15-<\/span>\n<\/p>\n
–\n<\/p>\n
first injury.      His version about attack on PW1, which is<\/p>\n
congruent to the version of PW1, is incongruent to the injury<\/p>\n
suffered by PW1 as described in Ext.P12.\n<\/p>\n
     21. The learned counsel for the accused argues that all<\/p>\n
these inadequacies in the evidence of PWs.1 and 2 must be<\/p>\n
considered in the light of the version advanced by the accused,<\/p>\n
which is convincingly probabilised by the oral evidence of PWs.1<\/p>\n
and 2 as also the facts perceived by the investigating officer<\/p>\n
reported in Ext.P9. According to the accused, an untoward<\/p>\n
incident had taken place in the toddy shop on that evening.<\/p>\n
Some people were consuming toddy in the toddy shop. They<\/p>\n
were singing songs.    PW2 and his cohorts got involved in a<\/p>\n
dispute with persons who were consuming toddy and singing.<\/p>\n
PWs.1, 2 and the deceased allegedly indulged in culpable and<\/p>\n
contumacious act. Bottles were broken and they were used as<\/p>\n
weapons against the others in the toddy shop. A free for all<\/p>\n
followed and the persons in the toddy shop attacked PW1 and his<\/p>\n
brother, the deceased, as also PW2. PW2 ran to safety and it is<\/p>\n
thus that PW1 and the deceased suffered whatever injuries they<\/p>\n
CRA.NOS.671\/05 & 78\/06         -16-<\/span>\n<\/p>\n
–\n<\/p>\n
suffered. People were throwing stones at the deceased, who<\/p>\n
indulged in overt acts to restrain him and that is how he had so<\/p>\n
many injuries described in Ext.P10. The scene mahazar,Ext.P9<\/p>\n
affords telltale corroboration and support     for this  defence<\/p>\n
version.    The learned counsel for the accused, in these<\/p>\n
circumstances, submits that the court below must have<\/p>\n
unhesitatingly rejected the evidence of PWs.1 and 2 and must<\/p>\n
have come to the conclusion that the prosecution evidence does<\/p>\n
not establish any allegations against any accused.<\/p>\n
     22. The learned counsel points out that even going by the<\/p>\n
version of PW1, A1 and A2 had gone out of the toddy shop when<\/p>\n
the quarrel commenced. PW2 has no case that accused 2 was in<\/p>\n
any way involved in the incident later. In the incident between<\/p>\n
PW10 only, accused 1 and 4 were involved admittedly. In these<\/p>\n
circumstances, accused 2,3 and 5 cannot be said to be in any<\/p>\n
way involved in the incident, nor can they be said to have<\/p>\n
shared any common object along with A1 and A4. It can also be<\/p>\n
seen from the scene mahazar that MO.1 could only have been<\/p>\n
one of the sticks which were available in the court yard of the<\/p>\n
CRA.NOS.671\/05 & 78\/06         -17-<\/span>\n<\/p>\n
–\n<\/p>\n
toddy shop. People, who were in the toddy shop had to restrain<\/p>\n
the deceased and PW1 from indulgence in contumacious acts.<\/p>\n
They may have picked up those sticks which were available.<\/p>\n
By any stretch of imagination, it cannot be said that accused 2,3<\/p>\n
and 5 shared any intention\/ common object with accused 1 and<\/p>\n
4. The F.I.statement lodged by A2 (i.e.Ext.P26) clearly suggests<\/p>\n
that he was not in any way involved in the incident and happened<\/p>\n
to suffer injuries     described in     Ext.P13  when   he   was<\/p>\n
unnecessarily involved in the incident that had taken place at<\/p>\n
the toddy shop on that evening.\n<\/p>\n
     23. In the sequence of evidence which has been narrated<\/p>\n
above, we find absolutely no justification in the court accepting<\/p>\n
the oral evidence of PW1 and \/or PW2. The version inherently<\/p>\n
is not inspiring and does not explain all the circumstances. The<\/p>\n
credibility of PWs.1 and 2 is itself in doubt. In any view of the<\/p>\n
matter, we are of the opinion that the case of the prosecution<\/p>\n
cannot be said to be established by the oral evidence of PWs.1<\/p>\n
and 2.\n<\/p>\n
     24. The only way to hold the allegation of the prosecution<\/p>\n
to be proved is to look at the evidence of PWs.1 and 2 regarding<\/p>\n
CRA.NOS.671\/05 & 78\/06         -18-<\/span>\n<\/p>\n
–\n<\/p>\n
the beatings given to the deceased with MO.1 by Accused No.1.<\/p>\n
Except by this court, accepting that part of the testimony alone,<\/p>\n
the conclusions reached by the court below cannot obviously be<\/p>\n
supported. We are certainly of the opinion that the court below<\/p>\n
has not considered the questions in the proper perspective and<\/p>\n
has not adverted to the real questions that arose for<\/p>\n
consideration. We find merit in the contention of the learned<\/p>\n
counsel for the accused that the court below was not morally<\/p>\n
convinced about the acceptability of the case of the prosecution,<\/p>\n
but erred in meekly accepting the oral evidence of PWs.1 and 2<\/p>\n
about the injuries on the head of the deceased alone without<\/p>\n
giving attention to other broad probabilities, inability of the<\/p>\n
prosecution to explain the other injuries on the deceased and its<\/p>\n
total failure to explain the facts perceived by the investigating<\/p>\n
officer recorded in Ext.P9.\n<\/p>\n
     25. We are satisfied that this is an eminently fit case<\/p>\n
where the benefit of doubt should have been conceded to the<\/p>\n
accused by the adjudicator refusing to accept and act upon the<\/p>\n
CRA.NOS.671\/05 & 78\/06         -19-<\/span>\n<\/p>\n
–\n<\/p>\n
oral evidence of PWs.1 and 2 either fully or in any particular<\/p>\n
part.\n<\/p>\n
     26. In the appeal by the State, the State contends that the<\/p>\n
court below was wrong in assuming that the first accused had a<\/p>\n
right of private defence without proper analysis and evaluation.<\/p>\n
The benefit of exceeding such a right of private defence (which<\/p>\n
does not exist) has been erroneously conceded to the first<\/p>\n
accused.     The crux of the argument of the learned Public<\/p>\n
prosecutor is that the court having believed the evidence of<\/p>\n
PWs.1 and 2 in so far as it relates to the overt acts by Accused<\/p>\n
No.1 against the deceased must have come to the conclusion<\/p>\n
that his act amounts to the offence punishable under Section<\/p>\n
302 I.P.C. and that the other accused must be made liable with<\/p>\n
the help of Section 149 I.P.C., inasmuch as they were members<\/p>\n
of an unlawful assembly who were acting in prosecution of their<\/p>\n
common object.\n<\/p>\n
     27. We have already found that reliance cannot be placed<\/p>\n
on the oral evidence of PWs.1 and 2 to come to any conclusion<\/p>\n
in favour of the prosecution. We are further of the opinion that<\/p>\n
CRA.NOS.671\/05 & 78\/06           -20-<\/span>\n<\/p>\n
–\n<\/p>\n
the prosecution has miserably failed in establishing that there<\/p>\n
was a cord of common object binding accused 1 to 5 to expose<\/p>\n
them to the charge of they being members of an unlawful<\/p>\n
assembly and of having allegedly acted in prosecution of the<\/p>\n
common object of the unlawful assembly.         We are, in these<\/p>\n
circumstances satisfied that the appeal by the first accused, i.e.<\/p>\n
Crl.A.No.671\/2005 is entitled to succeed and Crl.A.No.78\/2006<\/p>\n
by the State is liable to be dismissed,<\/p>\n
     28. In the result,<\/p>\n
     A)   (i) Crl.A.No.671\/2005 is allowed.\n<\/p>\n
           (ii) The appellant-1st accused is at any rate<\/p>\n
           found entitled to the benefit of doubt. He is<\/p>\n
           consequently found not guilty and acquitted of<\/p>\n
           all the charges levelled against him.\n<\/p>\n
           (iii)Bail   bond     executed   by   the   first<\/p>\n
           accused\/appellant in Crl.A.No.671\/2005 shall<\/p>\n
           stand discharged. He is set at liberty.\n<\/p>\n
CRA.NOS.671\/05 & 78\/06      -21-<\/span>\n<\/p>\n
–\n<\/p>\n<\/p>\n
    B) Crl.A.No.78\/2006 is dismissed in the light of the<\/p>\n
    finding in Crl.A.No.671\/2005. The acquittal of all<\/p>\n
    accused are upheld.<\/p><\/blockquote>\n
                                  R. BASANT, JUDGE<\/p>\n
                                M.C. HARI RANI,JUDGE<\/p>\n
ks.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Chandran vs State Of Kerala on 22 February, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL.A.No. 671 of 2005() 1. CHANDRAN, S\/O. CHELLAPPAN, … Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY … Respondent For Petitioner :SRI.SURESH BABU THOMAS For Respondent : No Appearance The Hon’ble MR. Justice R.BASANT The […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-85288","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nChandran vs State Of Kerala on 22 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chandran-vs-state-of-kerala-on-22-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chandran vs State Of Kerala on 22 February, 2010 - 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