Antony @ Shibu v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA & THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 27TH DAY OF JULY 2012/5TH SRAVANA 1934 CRL.A.No. 964 of 2008 -------------------------SC.263/2004 of ADDL. SESSIONS COURT (ADHOC) FAST TRACK NO.I, THRISSUR .............. APPELLANT/ACCUSED: ANTONY @ SHIBU, S/O.THOTTUNGAL JOSEPH, CHALAKADAVU, CHELLANAM, ERNAKULAM. BY ADVS.SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADDL. DGP SRI.TOM JOSE PADINJAREKKARA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Hema & Babu Mathew P.Joseph, JJ. ------------------------------------------ Crl.A.No.964 of 2008 -----------------------------------------Dated this the 27[th] day of July, 2012 ## **JUDGMENT** Hema, J. The appellant was charge sheeted for offences under Sections 449, 324, 307 and 302 of Indian Penal Code ('IPC' for short). After trial, the court convicted the accused and sentenced him to undergo imprisonment for life and to pay a fine of ` 2,000/- and in default to undergo rigorous imprisonment for six months under Section 302 IPC and also to undergo rigorous imprisonment for one year and to pay a fine of ` 1,000/- and in default to undergo rigorous imprisonment for one month under Section 324 IPC. The accused was also sentenced to undergo rigorous imprisonment for five years and to pay a fine of ` 1,000/- and in default to undergo rigorous imprisonment for three months under Section 449 of IPC. It is directed that the sentence of imprisonment shall run concurrently. 2. According to prosecution, on 23.04.2002 at about 2 p.m. the accused went to the bakery run by the deceased and CRA 964/08 2 asked for a match box which cost only 50 paise and gave a currency note of denomination of rupees 10 and there was a quarrel between the two. He left the place and came back to the bakery at 10.15 p.m. carrying MO1 knife and stabbed deceased Varghese and also his son Raigon. PW1, the wife of the deceased, was also stabbed with the same knife. The father and son succumbed to the injuries within a few hours of the incident. The accused committed offences under Sections 449, 324, 307 and 302 IPC. 3. To prove the prosecution case, prosecution examined PWs 1 to 16 and marked Exts.P1 to P17 and MO1 to MO13. When the accused was questioned under Section 313 of Code of Criminal Procedure ('the Code' for short), he denied all the circumstances appearing in evidence against him. He filed a statement in writing wherein it is stated that he had gone to the shop of deceased Varghese at 10 p.m. on the date of occurrence and gave a currency note of denomination of rupees 10 towards the price. Deceased Varghese then told him that he need take the match box only after giving changes and attempted to grab the match box from his hand. There was a push and pull. Deceased CRA 964/08 3 Varghese took a stick and beat him. There was a scuffle between the two for the stick when deceased Raigon took out a knife from the shop and attempted to stab him. Scuffle ensued for the knife also and the deceased fell on the road. Deceased Varghese then beat him on the head and the shoulder. He sustained injuries on the head and it started bleeding. He some how escaped from the scene and went to the hospital and got treatment. He is innocent of the allegations made. 4. The Trial Court, after consideration of the evidence, found that the prosecution proved its case beyond reasonable doubt that the accused committed murder of Varghese and Raigon and also caused voluntary hurt to PW4 by means of a dangerous weapon and that he committed house trespass in order to commit the offence of murder. The Court also found that evidence of PWs 4 to 6 shows that the accused was the aggressor and he was armed with MO1 and committed the overt act with intention to cause death of two persons and he is not entitled to the right of private defence. 5. Heard both the sides. Perused the records. CRA 964/08 4 ## Points for consideration: 1. How did accused intentionally cause the death of Varghese and Raigon by stabbing with MO1 as alleged by the prosecution? 2. Whether the accused voluntarily caused hurt to PW4 by stabbing with MO1 as alleged by the prosecution? 3. Whether the accused committed house trespass with intention to commit offence of murder as alleged by the prosecution? 4. Whether the conviction and sentence passed against the appellants are sustainable? 6. Points 1 to 4: According to the prosecution the accused went to the bakery run by the deceased Varghese to buy a match box worth 50 paise on 23.04.2002 at 10 p.m. He gave a currency note of denomination of ` 10 towards cost of the match box but deceased Varghese insisted for changes. A quarrel ensued and accused left the place after about 15 minutes. He came back to the same shop armed with MO1 which was put in the sheath, MO2 and stabbed deceased Varghese from the bakery with intention to murder him. When PW4, who is his wife, intervened she was also stabbed. The son, deceased Raigon came in when the accused stabbed him also with MO1 and inflicted injuries on CRA 964/08 5 all the three. Deceased Varghese and Raigon were taken to St.James Hospital and from there to Elite Mission Hospital. Raigon died at 3.40 a.m. on 24.02.2002 and the deceased Varghese died at 4.45 a.m. within a few hours of commission of the offence. 7. To prove the prosecution case, they examined eye witnesses who are PWs 4 to 6. PW4 is the widow of deceased Varghese who was also injured in this case. She gave evidence that the incident happened in their bakery at 10 p.m. when the accused came to the bakery asking for a match box. Then he showed a currency note of denomination of rupees 10. Cost of the match box was only 50 paise. Her husband deceased Varghese told him that there was no change for ` 10/-. He also asked the accused whether he was not living in this world. 8. Accused then retaliated that he will show him if he is Shibu belonging to Kochi. By stating this the accused left the shop. PW1 also deposed that by about 10.15 p.m. the accused came back to the shop carrying a knife which was put in a sheath. He drew the knife and stabbed her husband stating that he would be killed. An injury was inflicted on his chest, when PW4 CRA 964/08 6 intervened to prevent further attack, the accused stabbed her also on the left shoulder and she sustained injuries. Her son Raigon who intervened was also stabbed by the accused on the chest and back. He also fell down. 9. PW4 deposed that the accused proceeded towards her husband for stabbing, while deceased Varghese beat the accused with the stick. The accused stabbed deceased Varghese again and he sustained an injury on the chest. Watching this incident PWs 5 and 6 and another person, one Shine, were standing outside the shop. When they rushed the accused brandished the knife and left the place. Herself, son and deceased were taken to St.James Hospital, Chalakudy and thereafter to Elite Mission Hospital, Thrissur from where both of them died. PW4 was taken to Santhi Hospital, Kodakara. She gave a statement to the police which is marked as Ext.P4 (F.I.R.). She identified the knife and the sheath as MOs.1 and 2. 10. PWs 5 and 6 were examined to corroborate the evidence of PW4. PW5 deposed that on 23.04.2002 night when he was standing in front of the bakery along with his friends at about 10 p.m. he heard a commotion from the bakery and he CRA 964/08 7 saw deceased Raigon beating the accused in the bakery asking him to go. Then the accused left the shop stating to retaliate. By about 10.15 p.m. accused came to the shop with a knife kept in a sheath (MOs.1 and 2 respectively). PW5 and his friends followed the accused when he went inside the bakery. The accused drew the knife and stabbed deceased Varghese on the chest. 11. When PW4 approached the accused to prevent the incident, he stabbed her also on the shoulder. Deceased Raigon caught hold of the accused by his hand when the accused wriggled out of the clutches and stabbed deceased Raigon and he sustained injuries on the chest. The accused again stabbed deceased Raigon on his back. 12. On seeing this deceased Varghese beat the accused with a stick taken from the shop and there was bleeding from his head. The accused stabbed deceased Varghese again and he sustained injury on the chest. When PW5 and others tried to prevent the accused from picking the axe he brandished the knife and left the shop. 13. PW6 is a friend of PW5. He deposed that on 23.04.2002 at about 10 p.m. when he was standing by the side CRA 964/08 8 of the road near the shop of deceased Varghese, he heard some commotion from the bakery. He saw deceased Raigon pushing off the accused from the shop asking him to go. Then the accused made a statement to retaliate and left the place. At about 10.15 p.m. the accused came to the shop with the knife which is identified as MO1, which was put in a sheath MO2. 14. PW6 and his friends went towards the accused. The accused stabbed deceased Varghese and thereafter PW4. Deceased Raigon proceeded to the place and caught hold of the accused by his hand, when the accused stabbed him with the knife. When deceased Raigon turned he was stabbed on his back also. Deceased Varghese beat the accused on his head. The accused stabbed deceased Varghese again and left the place brandishing the knife. Deceased Varghese and deceased Raigon were also stabbed on his chest first. 15. Learned counsel for appellant argued that evidence of PWs 4 to 6 cannot be believed because they have suppressed material facts. It is also argued that their evidence probabilises the case set up by the accused that he acted in exercise of right of private defence when he was attacked by deceased Varghese CRA 964/08 9 and Raigon and by the others. The prosecution records themselves will establish that the accused was hospitalized and he was examined by the doctor. He made a statement to the doctor that he was assaulted by eight people. The evidence of these witnesses will show that the case set up by the accused is probable. 16. Learned State Additional Public Prosecutor argued that prosecution is putting forward a genuine case and it is revealed from the facts stated in the First Information Statement itself. There is no deviation from the First Information Statement which was given within a very short time of the incident by the wife of deceased Varghese and all material particulars are stated in the First Information Statement. She herself was injured and even in that state of mind she gave all the details in the First Information Statement which reached the court within the shortest possible time. 17. The incident happened on 23.04.2002 at 10.15 p.m. and the Statement was made at 11.30 p.m. on the same day and the FIR was registered at 12.30 a.m. on 24.04.2002 and the FIR reached the Court on the same day at 2.15 p.m. Learned CRA 964/08 10 State Additional Public Prosecutor also argued that all the witnesses have given evidence consistent with the version given by PW4 in Court. No material contradictions or omissions are brought out from the evidence to discard the same. It is also argued that the case set up by the accused is not proved by him. 18. It was pointed out that MO1 knife was seized pursuant to a statement given by the accused and the sheath of the said knife was seized from the veranda of the shop. The nature of the knife is peculiar and that sheath and the knife tally. It cannot be said that anything is manipulated or fabricated in this case. Two persons have lost their life and if at all is there any discrepancy in their evidence it is only natural. But for such discrepancy evidence of any eye witness may not be taken into account to discard their evidence as a whole, it is submitted. He has also cited various decisions to support his arguments as to how evidence of eye witnesses have to be appreciated, what will be the consequence of some omissions in the First Information Statement, etc. 19. Learned defence counsel also cited a decision reported in **Asokan v. State of Kerala** (1982 Crl.L.J. 173) and argued CRA 964/08 11 that the burden of proof rests entirely on the prosecution to establish beyond reasonable doubt all the ingredients of offence including mens rea which never shifts to the accused merely because he sets up a plea of private defence. It is also argued that even if the accused is not successful in establishing his plea of private defence, if totality of circumstances placed before court create reasonable doubt in the mind of the court regarding mens rea, accused will be entitled for acquittal. 20. We have gone through the various decisions cited. But, on the facts of this case, what is more important is to find out how the incident happened. It is true that in the chief examination of PWs 5 and 6 they gave evidence more or less consistent with each other. It discloses that the incident happened in which deceased Varghese sustained two injuries on his chest with MO1 and deceased Raigon sustained two injuries on his chest and back. PW4 sustained injuries on her shoulder. All these injuries were inflicted by the accused with MO1, is the version given by PWs 4 to 6. 21. While evidence of PWs 4 to 6 is analysed and evaluated, the Court has to keep in mind the statement given by CRA 964/08 12 the accused, putting forward the plea of private defence. PW4 lost her husband and son in the incident. PWs 5 and 6 are friends of deceased Raigon who died in the incident. There can be no doubt that they are interested in the prosecution and in the success of the prosecution, but, that alone cannot made a ground to discard their evidence. The question is whether an incident happened, as alleged by PWs 4 to 6. 22. The case of prosecution is that the accused was retaliating to the quarrel which ensued between him and the deceased at about 10 p.m. on the crucial date at the bakery. In the chief examination of PW4 she only stated that the accused wanted a match box from the shop and he have a currency note of ` 10 for purchasing the same when her husband stated there is no change. He also asked him whether he was living in this world. Apparently, such an incident may not be sufficient for a person to kill another. PW4 does not have a case that there was any quarrel between the accused and the deceased on account of the above episode. 23. From the chief examination of PW4, it will appear that the incident stated by PW4 is not much serious which would CRA 964/08 13 normally create any enmity in a person so as to kill another. PWs 5 and 6 have only stated that there was only a commotion in the bakery, but they did not hear or see what happened in the shop. 24. However, the accused has a different version. According to him, deceased Varghese had already given him a match box and he was in possession of the match box. But, the deceased insisted for change. When he handed over a currency note of denomination of ` 10, deceased Varghese tried to grab the match box from his hand. There was a push and pull for the match box. But, such a case is absent in the chief examination of PW4. 25. In cross examination, PW4 admitted that ` 10/- was shown by the accused to her husband only after the match box was given by her to the accused. When a suggestion was put to PW4 that her husband insisted that he could take the match box only after giving change and tried to grab the match box from the accused, she denied the same. She also denied the suggestion that there was a quarrel between the husband and the deceased on account of the match box. While attempts were made to prove possession of the match box with the accused, she denied it. CRA 964/08 14 26. Evidence of PWs 5 and 6 reveal that they heard a commotion and they saw accused being pushed off from the shop by deceased Raigon. The case set up by the accused appears to be more probable that there was a push and pull for the match stick which deceased Varghese had already handed over. It is likely that there was a commotion for the match box, since there was no change available with deceased Varghese. Some thing had happened in the shop, when the accused failed to return the match box, though deceased Varghese had insisted for giving the change. 27. It is also more relevant to note that going by the evidence of PWs 4 to 6 it is evident that the incident happened inside the bakery. All the three persons had witnessed the same. PWs 4 to 6 categorically deposed that every thing happened inside the shop and the accused left the shop after the incident. Prosecution has no case that any incident happened on the road or on the road margin. It also appears from the evidence of PWs 4 to 6 that the accused was also beaten up by deceased Varghese from the shop itself. The evidence of PW5 reveals that the accused sustained injury on his head by the beat and he was CRA 964/08 15 bleeding. The medical evidence amply reveals that all the three persons were injured and there was bleeding. 28. Therefore, if the incident happened inside the bakery in the veranda, as alleged by prosecution, there must be blood in the bakery. In this connection, it is relevant to note that PW4 specifically deposed that the incident happened inside the shop and from the veranda of the shop. She also deposed that deceased Varghese had fallen on the table and deceased Raigon had fallen on the crate in which the soda bottles were kept in the veranda, on sustaining injuries. Necessarily, there must be sufficient blood in the place where the incident happened. 29. However, evidence of PW13-the investigating officer reveals that there was not even a drop of blood anywhere in the bakery or at least on the soda bottles. He admitted that in Ext.P3 it is not recorded that there was any blood stain on the pieces of bottles seized from the shop. So also, even from the sheath which was allegedly seized from the scene, there was no blood. However, blood was seen on the road which is situated in front of the shop and also on the side of the road and this fact is recorded in Ext.P3. CRA 964/08 16 30. In this context, statement of the accused assumes significance. His definite case is that the incident started from the shop, when deceased Varghese attempted to grab the match box from his hand and he came out with a stick and beat him and there was a scuffle for the stick. By this time, deceased Raigon came from the shop with a knife and tried to stab the accused. There was a scuffle for the knife and both of them fell down on the road. At this point of time, deceased Varghese beat him on the head and the shoulder and he sustained bleeding injury on the head. 31. The absence of any blood in the bakery, veranda, in the sheath MO2, on the soda bottle pieces or any blood stain in the bakery coupled with the presence of blood on the road and the road margin, definitely show that the incident, if any, must have occurred on the road and the road side and not as stated by PWs 4 to 6. The case of the accused that the incident started when there was an attempt to grab the match box from his hand and a scuffle followed and attack was made on the road appears to be more probable, especially in the light of the evidence of the investigating officer regarding presence of blood and absence of CRA 964/08 17 blood seen in the bakery and veranda. 32. Evidence of eye witnesses in this case reveals the use of a knife and stick in the incident. The injury sustained by the deceased could be caused by a sharp edged weapon, as revealed from medical evidence. The injury sustained by the accused also can be caused by a stick, as stated by the doctor. Though two weapons were allegedly used in the same incident only one of the weapons is produced in this case which is alleged to have been used for inflicting injuries on the deceased. 33. There is no plausible explanation from the investigating officer for not producing the stick used for inflicting injury on the accused. The wound certificate relating to the accused shows that he sustained a contusion and a deep abrasion. It appears from evidence that he was admitted in the hospital for sustaining the injury in the same incident at the hands of eight persons. There is nothing on evidence to show whether any case was registered on the basis of an allegation made by the accused that he was assaulted by eight persons. 34. When a person makes an allegation that he was assaulted by eight persons by using a weapon, necessarily, it CRA 964/08 18 constitutes an offence. The allegation gains significance, when the investigating officer comes to know that in the same incident two persons lost their lives and the accused also sustained an injury in the same incident. The investigating officer is bound to investigate all the circumstances under which the incident happened. There can definitely be a counter version from the accused as to how the incident could have happened. 35. If the case of prosecution is that the incident did not happen when the accused acted in exercise of his private defence, there should be an investigation into these aspects. But, the investigating officer did not make any effort to seize the stick or make an investigation into the allegation of use of stick against the accused. It appears that none of the witnesses were questioned, with respect to the weapon and no attempt was made to seize the same. 36. It also appears that the investigating officer did not consider the absence of any blood stain in the bakery and in the veranda, as relevant for making further probe into the question whether the incident happened on the road, as stated by the accused or in the bakery itself. It is not a mere omission to CRA 964/08 19 register a case based on the statement given by the accused, but, there is also lack of investigation into the relevant aspects including actual scene of occurrence and the circumstances under which the incident happened. 37. PW4 gave evidence that deceased Varghese used the stick to beat the accused only when his son was attacked by the accused. That is what is stated by the accused also. But, it is brought out in cross-examination that she was trying to explain the injuries sustained by the accused only at the time when she was examined in Court. It would appear from cross-examination that she suppressed the use of a weapon against the accused by her husband, at the stage of investigation. She admitted while cross examined that she did not tell the police that her husband beat the accused, when accused went to the husband after stabbing the son. 38. PW4 also denied the suggestion made to her that there was a scuffle for the knife between the accused and deceased Raigon and they had fallen on the road. Therefore, this is not a case where PW4 stated that the incident happened in the bakery. At the same time, she denied the incident which is stated CRA 964/08 20 to have taken place on the road. Therefore, she was showing a tendency to stick on to the prosecution version that the incident happened in the bakery and not on the road, even though her own version reveals otherwise. 39. It can also be seen that PW4 denied the suggestion that accused was beaten by her husband on the head and the shoulder when there was a scuffle between the accused and deceased Raigon for the knife from the road. PWs 5 and 6 also gave evidence in such a way to show that accused was beaten from the shop itself and not from the road. PW6 tried to suppress the injury sustained by the accused and stated that he did not see the accused having sustained any injury on the shoulder and the head. 40. He also denied the fact that deceased Varghese and deceased Raigon sustained injuries from the road. But, taking all the facts and circumstances into consideration, it appears that the incident happened on the road and not inside the bakery. Evidence of PWs 4 to 6 regarding place of occurrence as bakery has to be disbelieved. The circumstances under which the accused was beaten up with a stick also is not consistent with CRA 964/08 21 other evidence emerging in this case. 41. Learned State Additional Public Prosecutor argued that there is no gap between the road and the shop and the veranda. Therefore, the evidence given by PWs 4 and 6 that the incident happened inside the shop and the veranda cannot be taken as a ground to disbelieve that the incident happened in the premises of the bakery, veranda and the road. A rustic woman like PW4 can normally and naturally make such a mistake, but that cannot be a ground to disbelieve and throw off the entire prosecution, it is argued. 42. It cannot be stated that the discrepancy in the evidence of PWs 4 to 6 regarding place of occurrence is insignificant, considering the totality of the facts and circumstances in this case. This is a case where there are allegations and counter allegations with respect to the same incident. Therefore, the court is bound to consider whether the version given by the prosecution on one side or whether defence on the other side is believable. In the light of defence plea of right of private defence, this assumes more significance. CRA 964/08 22 43. To appreciate the plea put forward by the defence as well as the mes rea and intention of the accused in committing the alleged offence, it is necessary to consider under what circumstances accused would have acted and under what circumstances deceased would have sustained injuries. This is a matter of concern for the Court. On the facts of this case, the discrepancy in the evidence of PWs 4 to 6 with respect to place of occurrence cannot be viewed lightly. In the light of the defence plea, it assumes more significance to appreciate the contentions raised by both sides. 44. It would appear that prosecution tried to convince the court that an incident had happened inside the veranda and the bakery and that accused had committed the offence after trespassing into the shop. But, evidence reveals that the incident happened on the road as contended by the accused. The prosecution witnesses denied the fact that the incident happened on the road. It is also pertinent to note that prosecution has put forwarded a case that two incidents happened. The first incident is stated to be the motive for committing the other incident. The incidents happened within a span of 15 minutes. PWs 4 to 6 gave CRA 964/08 23 evidence that after the first incident the accused left the place and came by 10.15 p.m. and without any provocation, he used the weapon against the deceased and PW4 and inflicted injuries on them. 45. However, the version given by the accused discloses that there was only one incident. The incident happened at about 10.15 p.m. on the crucial day when there was a grab for the match box and it happened on the road. PW4, in chief examination, stated that there was no grab for the match box. But, from her evidence, the first incident is too insignificant for any person to normally develop any enmity towards another to kill. But, in cross-examination, PW4 admitted that match box had been handed over to the accused and it was in his possession. So, this probabilises the case of the accused that there was a grab for match box and that could be the reason for the entire incident. It would appear from the defence version that aggressors were the two deceased. 46. PW4 should have given the true version before court, having stated that the match box was already handed over to the accused. She should have clarified what happened to the match CRA 964/08 24 box, but, instead, she denied the suggestion that there was a scuffle for the match box though it is likely to have happened in the circumstances of the case. In this context, learned defence counsel pointed out that evidence reveals that PW4 went to the hospital at 10.15 p.m. Necessarily, some time would have taken for PW4 to reach the hospital, but, in the wound certificate, time of examination is recorded as 10.10 pm. 47. Learned State Additional Public Prosecutor argued that the alleged cause of injury is stated to be at 10.15 p.m. and therefore, she has a consistent version regarding the time of occurrence. It was pointed out that First Information Statement is recorded at 11.30 p.m., wherein she has given a statement that the incident happened at 10.15 p.m. In this context, the version given to the doctor at Elite Mission Hospital, where to deceased Varghese and Raigon were taken, has to be looked into. 48. In Exts.P5 and P6, issued by PW7-the doctor, the allegations with respect to the alleged cause of injury are recorded. As per the allegations, the incident happened at 10.00 p.m. and not at 10.15 p.m. The above facts revealed from the evidence also probabilises the case of the accused that there was CRA 964/08 25 only one incident which would have happened prior to 10.15 p.m. Learned State Additional Public Prosecutor pointed out that the allegation made to the doctor by the accused as per the wound certificate is that the incident happened at 10.15 p.m. and therefore, the case of the prosecution that the incident happened at 10.15 p.m. is to be accepted. 49. The above argument cannot be accepted. If at all the time of occurrence as stated by him to the doctor is 10.15 p.m., the only incident which occurred must be at 10.15 p.m. because, according to him, only one incident happened. But, going by the evidence of PWs 4 to 6, there were two incidents at 10 p.m. and 10.15 p.m., which is found to be not acceptable on their own evidence and materials before the court. From the above facts, it is clear that PWs 4 to 6, who are the eye witnesses to the occurrence, did not tell the whole truth before the court. They were not only suppressing certain facts, but modulating their evidence to establish the present case put forward by the prosecution. 50. In considering whether accused had the intention to cause death, it is necessary to note under what circumstances CRA 964/08 26 the deceased sustained injuries. Since the eye witnesses are not speaking the whole truth before the court, the court is at a loss to find out who was the actual aggrieved. Going by the statement given by the accused, the incident happened while an attack was made on him by the father and the son, one using a stick and the other using a knife. According to accused, this has given him the apprehension of some danger from the hands of these two persons. It is in evidence that about four other male persons were also present in the premises. PWs 5 and 6 stated that they, along with their friends, were standing on the road at the time of occurrence. 51. It is admitted that PWs 5 and 6 are friends of Raigan. Raisan, who is the brother, was also present. As per the prosecution records, Raisan is also an eye witness. But he was not examined. PW4 denied presence of Raison and stated that he was not present on that day. In such circumstances, it is clear that PWs 5 and 6 are not revealing the true facts, regarding how the incident started. The case of the prosecution that accused deliberately and intentionally caused death of two persons is doubtful. We make it clear that we are not going into the CRA 964/08 27 question whether accused acted in exercise of right of private defence. 52. Prosecution has to stand on its own legs. While evidence of PWs 4 to 6 is considered in the light of other evidence, it does not gain support. Their evidence also is belied by other evidence adduced in the case and also circumstances. Therefore, on the basis of the evidence of eye witnesses, it is difficult to hold that an incident as alleged by the prosecution had occurred in the circumstances stated by them and accused had intentionally caused the death of two from the bakery. 53. It is also difficult to believe that the incident commenced at 10.15 p.m., as alleged by PWs 4 to 6 and it occurred inside the bakery and veranda and not on the road. The evidence adduced in this case will also indicate that there was a grab for match box from the hands of the accused and an incident happened on the road and the road margin where blood was seen and not from the veranda or bakery. The case put forward by the accused regarding place of occurrence and genesis of incident is more probable. Evidence of PWs 4 to 6 cannot be believed to come to a conclusion that there was an intentional CRA 964/08 28 stab on those persons, as alleged by them. The incident must have happened in some other manner and not spoken to by the alleged eye witnesses. 54. In this context, it is pointed out by learned defence could that according to the evidence of doctor, who examined the deceased at Elite Hospital, the injury sustained could be caused in a scuffle. He has specifically stated in cross-examination that injuries could be caused with a sharp edged equipment while struggling with each other. The nature of injuries sustained by deceased Raigan were horizontal which were medially placed, one from the right and one from the left. The incised wound sustained by deceased Raigan was on the back side. 55. PW9 and PW15, the doctors who conducted postmortem examination, stated in chief examination that those injuries could be produced by MO1 knife. The question is not whether those injuries could be produced by MO1, but on the facts and circumstances, it is essential to prove that it could be caused by an intentional stab as alleged by the eye witnesses and could not be produced by MO1 accidentally during a scuffle. In this context, it is also pertinent to note that evidence of PWs 4 to CRA 964/08 29 6 will not explain the various injuries sustained by deceased Varghese. 56. PW15 is the doctor who conducted postmortem examination on the body of deceased Varghese. Apart from the incised wounds, there were curved linear abrasion and as many as four linear abrasions of considerable nature having a length of 11.5cm, 6.8 cm, etc. on his body. If, as a matter of fact, the injuries were inflicted by the accused as alleged by PWs 4 to 6 by a direct stab on his chest twice, it is not known how the five linear abrasions were caused on the body of deceased Varghese. 57. Prosecution tired to explain that those injuries could b caused by the tip of MO1. But, the possibility of causing such injuries with tip of MO1 is not brought out from the evidence of PWs 4 to 6. When a person is intentionally using a weapon like MO1, it is not understood why weapon was used in such a manner to cause only abrasions five in number by the tip of such weapon. On the other hand, possibility of sustaining such injuries during a scuffle, while holding a sharp edged weapon appears to be more probable. At any rate, none of the eye witnesses has a case that there was a scuffle between the assailant and the CRA 964/08 30 injured, while holding MO1, so that it could probably produce linear abrasions found on the body of deceased Varghese. Deceased Raigan was also having a linear abrasion on his body. That injury could also be produced with a tip a MO1 as spoken to by PW9 in chief examination. 58. Learned State Additional Public Prosecutor argued that PW9 and PW15-the doctors who conducted the postmortem examination deposed that the injuries sustained by the deceased are sufficient in the ordinary course of nature to cause death. Therefore, it is a clear case where the accused had inflicted injuries of such nature and he is guilty of murder. On the facts of this case, the most relevant question is not whether the injuries seen on the deceased are sufficient in the ordinary course of nature to cause death or not. The question is under what circumstances the deceased sustained such injuries, whether those injuries were sustained at the hands of the accused while he was intentionally stabbing them or whether those were sustained during a scuffle when there was a grab for the knife which was used during the course of the incident. CRA 964/08 31 59. For this purpose, there must be acceptable evidence on the genesis of the occurrence, the manner in which it developed, the place where it occurred, who was holding the knife, etc. etc., especially when there were several eye witnesses to the occurrence. But regarding these facts, evidence of PWs 4 to 6 is not quite believable. Therefore, the mere fact that deceased had certain injuries which are sufficient in the ordinary course of nature to cause death will not tilt the balance in favour of prosecution. 60. The accused was convicted for voluntarily causing hurt to PW4. The accused has a case that he did not inflict any injury on PW4. We have already held that evidence of PW4 in respect of various aspects is not quite reliable. It is true that medical evidence shows that she sustained an injury. The accused has no case while questioned under Section 313 of the Code that there was any scuffle between PW4 and accused or she had any occasion for sustaining an injury in the course of the incident. But, during cross-examination, questions were put regarding the probability of causing the injury and an injury which was noted on PW4 by the doctor. Cross-examination of the CRA 964/08 32 witnesses will reveal that suggestions were made that PW4 could fall on the pieces of soda bottle in the veranda and the injuries sustained by her could be caused by such fall. 61. It is not in dispute that broken soda bottle pieces were present in the veranda as revealed from Ext.P3 scene mahazar. PW16-the doctor, who examined PW4 and issued the certificate, noted an incised wound on the left shoulder 4 cm in length and 3 cm in depth. The injury was not a gaping one, since no width is noted for the injury. A suggestion was made to the doctor whether such an injury could be caused if the victim falls forcibly on the pieces of broken soda bottle. The doctor gave evidence that the injury could be caused if the victim falls forcibly on the pieces of broken soda bottle. Therefore, based on the evidence of PW4 alone, it cannot be said that prosecution proved that accused voluntarily caused hurt to PW4 by inflicting a stab wound with MO1 on her. 62. Taking all the above facts into consideration, we hold that based on the evidence of PWs 4 to 6, it is unsafe to convict the accused for intentionally causing death of deceased Varghese and Raigan. May be, an unfortunate incident had happened and CRA 964/08 33 two persons lost their life. But, prosecution has not placed the whole truth before the court to aid the court to take a right decision in the matter. Apart from that, evidence of the eye witnesses reveal certain suppressions and discrepancies, which are vital in nature regarding the event, the place of occurrence, weapon, etc. It is not at all safe to act upon the evidence of PWs 4 to 6 to convict a person for causing death. 63. Even if we analyse the circumstances which are proved by the prosecution, those are not sufficient to hold that the accused committed the overt act, in the circumstances and at the place, as alleged by the prosecution. When the accused is unsuccessful in proving the plea of private defence on the facts and circumstances of this case, in the absence of cogent evidence from the prosecution regarding how the incident actually happened, accused cannot be convicted, for the reason that two persons lost their life that too, for an insignificant reason and pursuant to a quarrel on a silly issue. 64. It is very easy to believe the witnesses who repeatedly speak a particular fact. But the question before the court is whether such facts are believable or not. To do so, the CRA 964/08 34 court has to consider various other aspects, all evidence and other circumstances which emerge from the records. But, the trial court failed to do so. This is a case where it is difficult to proceed on the basis of evidence of eye witnesses, since it is fraught with discrepancies on vital aspects. Even if the defence is not able to bring in the case diary contradictions, that alone may not be sufficient to believe them. The case diary contradictions or omissions alone are not the matters which the court has to look into while appreciating the evidence of eye witnesses. 65. It is also pertinent to note that PW4 specifically deposed that accused had run away from the shop immediately after stabbing deceased Raigan. She had also put forward a case that after stabbing deceased Raigan, the accused proceeded to deceased Varghese and attempted to stab him while he beat the accused with a stick. The incident relating to use of stick against the accused and the circumstances under which it was caused are all brought out as new theory which was introduced at the time of giving evidence before the court. Such a case is not there for prosecution. PW4 did not give any explanation for the injury sustained by the accused at the time of investigation. CRA 964/08 35 66. In such circumstances, prosecution failed to prove beyond reasonable doubt that an incident happened as alleged by it. Except that two persons lost their lives, how and under what circumstances, at which place exactly they sustained injuries, etc. are not satisfactorily proved. Since the case of the prosecution falls on this ground, it is not necessary to consider the other evidence relating to recovery of weapon, non production of chemical analyst report, etc. Learned State Additional Public Prosecutor also pointed out that the injuries on the accused are simple in nature as revealed from the doctors' evidence. If the incident had happened as alleged by the defence, he would not have escaped without some serious injuries, it is submitted. This would indicate that infliction of injuries on the deceased were caused by intentional stabs, it is submitted. 67. In this case, the accused was trying to establish that deceased Varghese and Raigan, both were approaching him, one carrying a stick and other carrying a knife and other persons, who are close to them, were also there, who could come to the aid of those two persons and death or grievous hurt could be the result. Presence of other persons at the scene cannot be disputed by the CRA 964/08 36 prosecution. The fact that two weapons were used in the incident also cannot be disputed. In such circumstances, the question whether accused had a reasonable apprehension that grievous hurt or death alone would be relevant. From the evidence available, it cannot be said that the incident happened as alleged by the eye witnesses. 68. In the light of the facts which emerged from the evidence regarding presence of four male members, use of a stick, etc. Mere absence of an incised wound or presence of a simple injury on the accused alone cannot be taken as a ground to believe the story put forward by the prosecution through the eye witnesses. The nature of the injury on the accused cannot by itself be made a ground to believe the eye witnesses to hold that an incident happened as alleged by them. Therefore, the nature of the injury, whether it is simple or grievous, is of no relevance as far as these injuries are concerned. 69. We make it clear that we have not considered in depth whether accused is entitled for the benefit of right of private defence, as provided under Section 105 IPC. What we have considered is only whether evidence of the eye witnesses CRA 964/08 37 can be accepted as true or they can be believed and based on such evidence, the court can enter a conviction against the accused. For this limited purpose, the case put forward by the accused is also discussed, since it appears to us that evidence of the eye witnesses has to be appreciated in the light of the defence plea. But, we have not considered whether accused proved his defence as required under Section 105 of Evidence Act. This question does not arise because prosecution failed to prove its case by the evidence of eye witnesses. 70. It is not uncommon that in a case whether there is a attack and a counter attack, the investigating officer will investigate into both the allegations and place the records and evidence before the court to support all the allegations. There may be cases where there is a case and a counter case, both are placed in court and the court will decide on the basis of the evidence whether the allegations made by one party or the other is correct or not. For this purpose, there must be an investigation into the allegations made by both sides. 71. But, in this case, an investigation into the allegations made by the accused was not done. Of course, medical evidence CRA 964/08 38 regarding the cause of injury is produced before the court. But, no evidence is collected to rule out the possibility of an attack being made on the accused as alleged by him by the deceased and associates who were present on the road [see **Pylan v.** **State** (1992 (2) KLT 661)]. In the result, the conviction and sentence passed against the appellant are unsustainable and the following order is passed: - i. The conviction and sentence passed against the appellant are set aside. - ii. The appellant is found not guilty and he is acquitted of offences under Sections 449, 324, 307 and 302 of Indian Penal Code. iii. The appellant is set at liberty forthwith. - iv. The Registry shall issue release memo forthwith to the Superintendent of the prison concerned. This appeal is allowed. ## (Sd/-K.Hema, Judge) (Sd/-Babu Mathew P.Joseph, Judge) ul/tkv /True copy/ P.S to Judge