Samuel @ Samu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939 CRL.A.No. 2167 of 2011 (A) -------------------------------------AGAINST THE JUDGMENT IN SC 60/2007 of II ADDL.D.C. & SESSIONS COURT, PALAKKAD, DATED 10.11.2011 APPELLANT : - ----------------------- SAMUEL @ SAMU, AGED 49 YEARS, S/o LATE JOHN, PALLIPARAMBIL VEEDU, MUNNURU, MUNDANPARA, KARARA POST, AGALI, (PRESENTLY LODGED IN VIYUR JAIL, THRISSUR). BY ADVS.SRI.T.D.ROBIN SMT.S.SIMY RESPONDENT : - --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SR. PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-11-2017, ALONG WITH CRRP. 857/2012. THE COURT ON 08.11.2017 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** ------------------------------------------------ Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 -----------------------------------------------Dated this the 8[th] day of November, 2017 ## J U D G M E N T ## **P. Somarajan, J.** Crl.R.P. No.857/2012 is preferred against the acquittal of accused Nos.2 and 3 in S.C.No.60/2007 dated 10.11.2011 of II Additional Sessions Judge, Palakkad and Crl.A. No.2167/2011 is filed by accused No.1 against the conviction and sentence passed against him for the offence punishable under Section 302 IPC. 2. The accused were prosecuted for the offence punishable under Section 302 read with Sections 109 and 34 IPC in Crime No.216/2004 of Agali Police Station. 3. The alleged incident happened on the eve of Christmas day in the year 2004. The allegation is that accused No.1 committed murder of one Sunny by stabbing with a knife and accused No.2 committed murder of Jaison by inflicting injury by using a chopper on his head. It was done Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 2 by accused Nos.1 and 2 under the instigation and abetment of accused No.3. Both the deceased Sunny and Jaison are the children of two brothers. 4. The prosecution examined PWs.1 to 21, got marked Exhibits P1 to P26 and identified Mos.1-14. PW1 is the first informant who had given the FIS. He is also an eye witness to the alleged incident, which took place at Munnuru in Mundanpara. PW1, on his way to his house, had seen one A.V. Joseph and had some chat with him. The deceased Sunny joined with him and while they were proceeding to their respective houses, accused No.1 came in front of them and had some exchange of words. Thereon, PW1 advised Sunny as well as accused No.1 to stop their unwanted talk. But, both of them remained there, and hence PW1 proceeded further towards his house. Thereon he heard a loud cry from deceased Sunny and had seen accused No.1 withdrawing a knife from the body of Sunny after inflicting a stab injury. Thereon he rushed to the place. By that time, accused No.1 ran away towards the house of accused No.3, Varghese P. John, along with the knife. After sustaining injury, Sunny Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 3 moved further up to the stream and told PW1 that Samuel stabbed him with a knife and he requested for some water. By that time, Jaison came there. PW1 informed him that Samuel stabbed Sunny and asked him to bring a vehicle. PW1 along with one Pappachan proceeded to a nearby shop and asked one Tomsing to bring a vehicle for removing Sunny to the hospital. Then they proceeded back to the place of occurrence. On the way, they had seen Jaison lying on the roadside near to the property of accused No.3. There was a cut injury on Jaison's head. Both of them were removed in a Jeep to a nearby hospital at Agali. By 8.30 p.m. on that day, he came to know about the death of Sunny on his way to hospital, from Pappachan. Thereon, PW1 went to Agali Police Station and had given Exhibit P1 FIS. He had also identified MO1 knife used for inflicting injuries to deceased Sunny. 5. The prosecution mainly relies on the oral evidence given by PW1, PW2, PW6, PW12 and PW17, who are in agreement with the main substratum of prosecution case. PW1 had undergone a lengthy cross examination, nothing was brought out to discredit his evidence. No material Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 4 contradiction or omission was brought out during his examination. On the other hand, his presence in the place of occurrence is probable and acceptable. He was actually proceeding towards his house. A mere perusal of the oral evidence tendered by PW1 would clearly show that he is a sterling witness and there is nothing to disbelieve his version. 6. PW2 is one Saly the wife of PW12, Pappachan. She had deposed in tune with the version given by PW1 regarding the first episode relating to the death of Sunny. Both the deceased Sunny and Jaison as well as accused Nos.1 to 3 are known to her, being the neighbours. The alleged incident happened on the eve of Chirstmas day in the year 2004. According to her, PW1 came to her residence and requested for some water stating that Samuel stabbed on Sunny and he need some water to drink. They also proceeded along with PW1 to the place of occurrence and had seen the victim Sunny lying on the way leading to his house. His mother, wife and sister were there attending him. Her husband brought some water and gave to the wife of deceased. Then her husband Pappachan and PW1 went for bringing a vehicle. She had also Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 5 seen accused No.2 on her way to the place of occurrence. At that time he was carrying a chopper in his hand. His sister was also there. She had also seen accused No.1 who was proceeding towards the house of accused No.3. At that time he was carrying a knife in his hand and she had identified MO1 knife. She was subjected to a lengthy cross examination but nothing was brought out to discredit her oral testimony. 7. PW12, the husband of PW2, had given oral evidence perfectly in tune with what is spoken by PW2 in all respects. He had also identified MO1 knife. He had seen accused No.2 Johny, carrying a shawl around his shoulder, standing on the way in front of the house of Joseph along with his sister Chinnamma, on his way to hire a vehicle. The house of Varghese is situated just 15kms away from the second place of occurrence. No house owned by any Joseph is either located or reported anywhere in the scene mahazar or in the scene plan prepared through Village Officer. When they reached the shop of Jaison, Tomsing was there. They informed Jaison and Tomsing about the attack by inflicting stab injury. Thereon Tomsing went for hiring a vehicle. So they returned to the Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 6 place of occurrence and on their way back they had seen Jaison lying on the road with head injury. He had also deposed that on their way to the shop of Jaison, they had seen accused No.1 with a knife. He was taken to the house of accused No.3 by force by his sister and her children in the house. He had also identified MO1 knife found in the hand of Samuel, accused No.1. Two contradictions, Exhibits D1 and D1(a), were brought out during cross examkination, but they are only minor discrepancies having no much relevance. On the other hand, the oral testimony given by PW12 is fully and completely in agreement with what is spoken by PW2, his wife, and gives sufficient corroboration to the oral evidence given by PW1 to the extent what they had seen on the ill fated day. 8. PW17 had also deposed in tune with PW2 and PW12 narrating each and every sequence of incident perfectly in tune with PW2 and PW12. 9. PW6 was examined to prove the dying declaration alleged to have been given by the victim Sunny. He had seen Sunny and Jaison lying on the respective places stained by blood. Jaison was lying on the way on the western side of the Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 7 water stream and Sunny was found lying on the eastern side of the water stream. When he approached Sunny, he told him that “Samu” stabbed him. By that time, Pappachan (PW12) and Binu brought a Jeep and both the Sunny and Jaison were removed to the hospital at Agali. He accompanied both the injured to the hospital. On the way Sunny succumbed to the injuries. Jaison was referred to Coimbatore Medical College Hospital, but he succumbed to the injuries by 4.15 - 4.30 a.m., at the Medical College Hospital. He is one of the witnesses to the preparation of inquest on the body of Jaison and he had identified his signature in the inquest report. He had also undergone a lengthy cross-examination but nothing was brought out to discredit his evidence and no material contradiction or omission was brought out. The dying declaration alleged to have been given by one of the victim Sunny, with respect to the cause of injury sustained by him is having high evidenciary value when the witness is a probable witness untainted by any ill will, ill thought or hatredness. The non-examination of persons who were present in the place of occurrence at the time when the victim disclosed the name of Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 8 assailant and the manner in which he had sustained injury, is not fatal to the prosecution when the oral evidence tendered by PW6 is found to be acceptable and gives sufficient support to the oral evidence given by PW1, PW2, PW6, PW12 and PW17. No material omission or contradiction was brought out. 10. The strained relationship between accused Nos.1 to 3, who are the brothers, and deceased Sunny and Jaison are also brought out by the prosecution through PWs.1, 2 and 12 as they were in inimical terms in connection with some civil disputes and that they belong to different faith in Christianity. 11. The medical evidence adduced through PW3, the Doctor who conducted postmortem examination on the body of deceased Sunny and who issued Exhibit P2 postmortem examination certificate, had identified two ante-mortem injuries which are as follows. “1. Incised penetrating wound 7.5 x 2 cm, oblique over the left side of upper part of chest. Its lower end 8cm outer to midline and its upper 3cm below the shoulder tip. The lower end was clearly cut and the upper end showed splitting up of tissue with bruising. The injury had penetrated into chest cavity by piercing through the second intercostal muscle Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 9 (3x1.5cm) and terminated by cutting the outer border of upper lobe of left lung (0.8x0.5cm) 5 cm below its apex. The wound was directed downwards, forwards and to right for a total minimum depth of 5.5 cm. 2. Incised penetrating wound 4x1.5cm almost vertical over the back of left side of chest, its lower end 4.5cm outer to midline and 37cm above the hip bone and its upper end 5.5cm outer to midline and 9.6cm below shoulder. The upper end showed splitting of tissues and the lower end was clearly cut. The wound had entered into chest cavity by piercing second intercostal muscles and completely cutting the 3[rd] rib (2.5x1cm). The wound was seen terminated by cutting the upper margin of apex of left lung (0.8x0.2cm). The wound was seen directed forwards for a total minimum depth of 4.5cm. On dissection the left chest cavity contained 450g of clotted blood with 100ml of fluid blood.” 12. The cause of death stated by him is that the death was due to penetrating injuries sustained to the chest involving left lung. According to him, injury No.1 is sufficient to cause death in ordinary course and the injuries mentioned in Exhibit P2 can be caused by a weapon like MO1 shown to him. Injury No.2 can be caused while the victim was bending forward and injury No.1 could be possible while in a standing position. The Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 10 medical evidence tendered through PW3 was mainly challenged on the reason that it would not be possible to cause injury Nos.1 and 2 with a weapon like MO1. The incised wound shown as item No.1 is having a measurement of 7.5 x 2 cm on the left side of upper part of chest. This injury had penetrated into chest cavity by piercing through the second intercostal muscle (3 x 1.5cm) and terminated by cutting the outer border of the upper lobe of left lung (0.8 x 0.5cm) 5cm below its apex. This wound was directed downwards, forwards and to right for a total minimum depth of 5.5 cm. Injury No.1 and 2 shows that its upper end showed splitting of tissues and the lower end was clearly cut. This would show that at the time of stabbing the blade of the knife was on the lower side. It was made clear by the Doctor that by dragging the weapon the length of injury can vary. The main challenge against the medical evidence is that the thickness of MO1 weapon is not tallying with the width of injury. According to PW3, MO1 is having varying thickness and these two injuries could be produced by one and the same weapon like MO1. Nothing else was brought out to discredit the medical evidence tendered. Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 11 The time of death also spoken by him as above six hours and below 12 hours before keeping the body in cold room which are consistent with the oral evidence tendered by PW1, PW2, PW12 and PW6. The medical evidence adduced gives sufficient corroboration to the main substratum of the prosecution case as spoken by PW1, PW2 and PW12. 13. The next incriminating circumstance relied on by the prosecution is the alleged surrender of accused No.1 along with MO1 knife on 26.12.2004 at about 6.10 a.m. But, admittedly no mahazar was prepared with any independent witness to prove the production of MO1 knife to PW20 ASI of police. Even according to PW20, he had kept the knife in safe custody and informed the matter to the CI of Police and as per the instruction given by the CI of Police, accused No.1 Samuel was kept under surveillance. He had also identified MO1 knife. It was handed over to PW14 CI of Police by preparing a mahazar on the next day by 1.15 p.m. So, it cannot be brought under the purview of S.27 of the Evidence Act mainly on two reasons that recovery mahazar of MO1 knife was prepared only on the next day not at the time of surrender of Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 12 accused and production of knife and the recovery/production of knife to ASI not supported by a mahazar witnessed by an independent witness. So, no much relevance can be placed on the alleged surrender of accused No.1 and production of MO1 knife, alleged to have been used for the commission of offence, before ASI of Police. Though there is a failure to prove the recovery of MO1 weapon under Section 27 of the Evidence Act, the fact that MO1 weapon was stained by human blood moderately on chemical analysis (Exhibit P25) and its identification by witnesses PWs 1, 2 and 12 as the weapon carried on by accused No.1 would sufficiently show that it was the weapon used for the commission of the offence. 14. As discussed in earlier paragraphs, the oral evidence tendered by PW1, PW2, PW6 and PW12 and the dying declaration alleged to have been made by the deceased would sufficiently prove the guilt of accused. The nature of the weapon used for inflicting injuries, MO1 knife having a sharp blade, and two penetrating injuries on the vital part of the body would sufficiently satisfy the first and second limb of Section 300 IPC, an intentional murder with full knowledge. Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 13 Hence, there is no reason for any interference to the finding of guilt of accused No.1 under Section 302 IPC and the conviction thereunder. 15. The sentence imposed is a lesser punishment and hence, does not call for any interference by this court. Resultantly, Crl. Appeal 2167/2011 fails. 16. In so far as the incident which has resulted in the death of Jaison is concerned, the only eye witness PW13 turned hostile to the prosecution pleading that he did not see the alleged incident inflicting injuries on Jaison by accused No.2 using a chopper. But he had admitted that the alleged incident happened in front of the house of Joseph which is situated very near to the house of accused No.3 Varghese and that he had witnessed the removal of both Sunny and Jaison in a jeep to the hospital. He had also accompanied both the injured to the hospital. Hence the prosecution mainly relied on the oral evidence tendered by PW12, PW13 and PW17, seizure of the chopper from the house of accused No.3, the dress worn by accused No.2, and the medical evidence of PW21, the Doctor who conducted postmortem examination on Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 14 the body of deceased Jaison. PW13 turned hostile to the prosecution. He is the only eye witness to the alleged incident of inflicting injury on the deceased Jaison by accused No.2 by using a chopper. The other witnesses relied on by the prosecution is PW2 Saly and PW12 her husband. What is deposed by PW12 is that he had seen accused No.2 Johny standing on the way to the house of Joseph along with his sister Chinnamma. At that time he was carrying a shawl around his body. He had seen Jaison who was proceeding towards the place wherein accused No.2 Johny was standing. On his way, PW12 had informed Jaison that Samuel stabbed his cousin brother Sunny and that he is on the way to hire a vehicle and then he proceeded towards the shop. When he was on the way back to the place of occurrence, he had seen Jaison lying on the road after sustaining injury. PW2 had seen a chopper in the hands of accused No.2. During her crossexamination she had deposed that he was actually found carrying a shawl around his shoulders, but she could see the chopper carried by him in his hand. She had identified MO2 chopper held by accused No.2 when she had seen him. As Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 15 discussed earlier, there is nothing to disbelieve the oral evidence given by PW2. On the other hand, her version stood as supported by the oral evidence given by PW12. The contradictions which were marked as Exhibits D1 and D1(a), are only minor probable discrepancies, not material in character and hence not sufficient to reject the oral evidence given by PW2 which is in agreement with PW1, PW12, PW17 and PW6. 17. Exhibit P14 is the seizure mahazar of MO2 chopper from the house of Varghese, kept in the southern side of the wall of his residential house. MO2 chopper found to be stained by human blood on chemical analysis, under Exhibit P25 chemical analysis report, in which item No.4 is the chopper. Human blood was detected with moderate stain on the blade and traces on the handle. The colour and depth of the blood stains stated as thick brown stains of human blood though blood grouping was not detected. The fact that MO2 chopper was found to be stained by human blood and identification of MO2 chopper both by PW2 and PW6 would make it as an incriminating object. It was recovered in furtherance of the Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 16 disclosure of accused No.2 while in police custody exhibited as P14. The oral evidence tendered by the witness to the recovery, PW15, was challenged mainly on the reason that he had not disclosed that MO2 chopper was recovered from the courtyard. We do not find any merit in the said argument, simply for the reason that, what is deposed by that witness is that MO2 chopper was found lying adjoining to the southern wall of the house of Varghese. This would show that it was kept in the courtyard but adjoining to the southern wall. Further, pendency of a case between accused No.1 and PW15 alone is not sufficient to reject the oral testimony of PW15 once it was found otherwise, reliable and trustworthy. Identification of MO2 chopper by PW2 and PW6 and presence of human blood, both in the blade as well as in the handle, would make the recovery of MO2 under the sweep of Section 27 of the Evidence Act, as the said weapon was lying not within the reach of Investigating Officer but in a place known to accused No.1. At that time, i.e. on 27.12.2004, the date on which MO2 chopper was recovered under Exhibit P14, accused No.3 was not in the party array of the accused. A report was Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 17 submitted on that day to implead accused No.3 in the party array of the accused. So, the recovery of MO2 chopper from the house compound of Varghese, who was later on impleaded as additional accused No.3 is not vitiated as the place of concealment was known to the accused alone at that time and not in the reach of Investigating Officer. 18. The recovery of MO9 and MO10 dress worn by accused No.2 based on Exhibit P15 seizure mahazar cannot be relied on as the contradictions marked as Exhibits D2 and D2(a) are material contradictions. Then comes to the question whether it is permissible to accept the portion of the oral evidence tendered by PW15 regarding the seizure of MO2 chopper and to reject the other portion of his oral evidence regarding seizure of MO9 and MO10. What is to be looked into is the reliability of the evidence tendered and if it is found that some portion of the oral testimony is not reliable, there is no legal impediment in accepting the portion of the oral evidence which is found to be reliable and trustworthy. The maxim “ _falsus in uno falsus in omnibus”_ has no application in India and the witness or witnesses cannot be branded as liars. It Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 18 will not have any application in criminal law in India. A witness may be partly truthful and partly false in giving the evidence. The doctrine merely involves the question of admissibility of evidence which a court may apply in a given set of circumstances. But, it is not what may be called 'a mandatory rule of evidence' [Rizan v. State of Chhatisgarh, AIR 2003 SC 976 : 2003 SCC (Cri.) 664]. The court must be so cautious in accepting a part of evidence of a witness and rejecting the other part and it has to be scrutinized in the light of other attending circumstances. PW2 had identified the chopper which was carried on by accused No.2 as MO2. It was found stained by human blood, both on the blade and handle, and no explanation was forwarded by accused No.2 during 313 examination with respect to presence of human blood stains in MO2 chopper. 19. It is argued by the revision petitioner that the medical evidence tendered through Exhibit P21 and PW21 would also support the prosecution case. Exhibit P21 postmortem examination report was proved through PW21 Doctor by identifying the signature and handwriting of the Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 19 doctor who conducted autopsy on the body of Jaison. The ante-mortem injuries noted in Ext.P21 are the following: “1. Sutured wound of 6cms length with 5 sutures seen over the left side forehead. The lower end of the wound is 4cms above the lateral end of left eye brow. 2. 2x1 cms incised wound seen over the left side forehead, 1 cm left of upper end of injury No.(1). 3. 2x1.5 abrasion seen over the left cheek, 3 cms away from the left angle of eye. 4. 6x1.5 cms incised wound seen over the left scapular region. - On dissection of scalp, subscalp contusion of 14x11 cms seen involving left fronto temporo parietal regions of the scalp. - Depressed fracture of 4x1 cms seen underneath the external injury No.(1) over the left frontal bone of the vault. - Subdural and subarachnoid haemorrhage seen over both cerebral hemisphere. - Laceration of 4x1x05 cms seen over the left frontal lobe of the brain underneath the depressed fracture.” 20. The cause of death was stated as due to external injury No.1 and its corresponding internal injuries. Injuries noted in Exhibit P21 can be caused with a weapon like MO2. It is also opined by PW21 Doctor that the external injuries with corresponding internal injuries noted in Exhibit P21 are Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 20 sufficient in the ordinary course to cause death. None of the possibilities for causing injuries noted in Exhibit P21 was brought out during cross examination, except a suggestion that fracture to the skull is possible even with a blunt object. 21. The proximity of the time and distance in which accused No.2 was found just few metres away from the place wherein Jaison was found lying wounded is yet another circumstance which requires consideration, besides the fact that he was carrying a chopper in his hand, at the time when PW2 had seen him. The oral testimony of PW2 and PW12 would clearly show the presence of accused No.2 on the way in front of the house of Joseph carrying a shawl around his shoulder and carrying a chopper in his hand while the deceased Jaison was proceeding towards the place wherein accused No.2 was standing. During cross-examination, PW12 has asserted that he had seen accused No.2 standing on the said way. He had simultaneously seen the deceased Jaison proceeding towards the said place. He had also asserted that he had disclosed what has happened to his cousin brother Sunny to Jaison. When he came back to the occurrence place, Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 21 he had seen Jaison lying on the said way after receiving injuries on his head. It was also spoken by him that all these were happened within a short span of 3-4 minutes. The presence of chopper in his hand and that he was carrying a shawl around his body may tend to show the preliminary preparation taken by accused No.2 to unleash attack on the victim. Carrying a shawl around his body could be an act in order to conceal the weapon carried on by him for the assault. 22. The incriminating circumstances brought out by the prosecution are: (i) The incident which has resulted in the death of Jaison happened immediately after the first incident/episode happened to his cousin brother Sunny who had received stab injuries from the hands of accused No.1. (ii) Accused No.2 is none else the brother of accused No.1. (iii) The second episode in which the Jaison sustained injuries on his head happened within few minutes after the first episode in which his cousin brother had received stab injuries from the hands of accused No.1. It happened within a span of Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 22 ## 3 to 4 minutes as spoken by PW12. (iv) The accused No.1 after the first episode came to the house of accused No.3 and he was forcibly taken to the house by his sister and her children. (v) Accused No.2 stood on the way lying in front of the house of Joseph which is just few meters away from the house wherein accused No.1 took shelter after the first alleged incident. At that time accused No.1 was carrying a knife in his hand. (vi) It is just after the first incident the accused No.2 was found near to the house of Joseph carrying a shawl around his body with a chopper in his hand. (vii) Accused No.2 carried a shawl around his shoulder with a view to conceal the chopper from the notice of others. (viii) Just before the alleged second episode, the victim of second episode, the deceased Jaison was found proceeding towards the place wherein the accused No.2 was standing with a chopper in his hand near to the house wherein the accused No.1 took shelter. (ix) The deceased Jaison was actually proceeding towards Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 23 the place wherein accused No.2 was standing viz. - Accused No.2 was standing on the way in front of the house of Joseph, leading to the place of occurrence of first incident and deceased Jaison, the cousin brother of deceased Sunny was found proceeding through the said way wherein accused No.2 was standing and both of them were seen by PW12 at the same time while he was proceeding towards the shop of Jaison. (x) By that time, the first incident which has resulted in stab injuries to Sunny by accused No.1 came to the notice of deceased Jaison and it was told to him by PW2 when he had seen him on his way to the shop of Jaison. It is after that Jaison proceeded towards the place wherein accused No.2 was standing, which, according to PW12, they were within a distance by which he could see both of them simultaneously - one was standing on the way, the other one was found proceeding towards that place. (xi) The place of occurrence wherein the second episode happened is just 23½ meters away from the place of occurrence of first episode. Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 24 (xii) Within few minutes PW12 returned back to the place of first occurrence and on his way back, he had seen Jaison lying on the road after sustaining head injury. (xiii) The time gap in which PW12 had seen the accused No.1 who took shelter in the house of accused No.3 and the time he had seen accused No.2 who was standing on the way in front of the house with a chopper and a shawl around his shoulder and the time in which Jaison was found proceeding towards that place on getting information of first episode and identity of the assailant/accused No.1 and the time in which he had seen Jaison lying wounded very near to the place wherein the accused No.2 was standing is so small. (xiv) The preparation made by accused No.2 to carry a chopper in his hand and also a shawl around his shoulder so as to conceal the chopper from the notice of others and guarded himself the house wherein the accused No.1 took shelter and the close relationship in between accused No.1 and 2 and intimacy between them. (xv) MO2 chopper was identified by PW2, PW6 and PW17 as the weapon carried on by accused No.2 just before the Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 25 commission of the second incident. (xvi) It was recovered based on the disclosure (confession) statement given by accused No.2 while he was in the police custody. (xvii) MO2 chopper was found stained with human blood both on the blade and handle and no explanation was forwarded by accused No.2 in his examination under Section 313 Cr.P.C. (xviii) The medical evidence adduced shows that the ante-mortem injuries found in the body of Jaison are possible by a weapon like MO2. (xix) The motive is the enmity and hatredness between the two victims and the accused persons. (xx) The immediate cause and provocation for the second incident intrinsically connected with the first incident by which Sunny received stab injuries from the hands of accused No.1. (xxi) No other person was found in the company of either the victim in the second episode Jaison or in the company of accused No.2 who was carrying a chopper at that time. 26 Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 (xxii) The property in between the first and second occurrence is the property of accused No.3 and the house is situated just few metres away from the second place of occurrence. 23. The observation of the learned Sessions Judge in para 51 of the impugned judgment that there was no chance for accused No.2 going home and coming back to attack Jaison with the weapon is so perverse and not based on any factual situations unfolded through witnesses. The oral evidence tendered by PW2 , PW6 and PW12 who had witnessed accused No.2 standing on the way and the oral evidence of PW2 and PW12 that at that time he was armed with a chopper and also carrying a shawl had been omitted by the lower court. Their oral testimony cannot be rejected simply on the reason that carrying a chopper by accused No.2 was not disclosed by PW1 in Ext.P1 FIS. The further observation in para 52 of the judgment that the evidence of PW2 and PW6 who allegedly had seen accused No.2 moving towards his house with a chopper in his hand cannot be accepted in its face value on the reason that neither accused No.2 nor any witness had seen any Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 27 quarrel in between Jaison and accused No.2 and the attack unleashed by him on Jaison is also perverse. In the absence of eye witness or when the eye witness turned hostile to the prosecution, it is the duty of the court to look into the circumstances and if the circumstances brought out on evidence is complete and consistent with the guilt of accused and is inconsistent with any other hypothesis other than guilt of the accused, it has to be accepted irrespective of the fact whether the eye witness turned hostile or not. The further observation that there were many people on the road running to the place where Sunny was lying injured and there would have been people who have witnessed the incident in which Jaison happened to sustain injuries really amounts to miscarriage of justice. The said observation is against the oral testimony of PW2, PW6 and PW12 who had seen accused No.2 at the second place of occurrence while the deceased Jaison was proceeding to that place. Very serious omissions were done by the learned Sessions Judge and substituted perverse observations. The observation made by the lower court that the prosecution has stage managed a recovery taking Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 28 advantage of S.27 of the Evidence Act is also not acceptable. What is to be looked into is the detection of an incriminating object in furtherance of confession made by the accused while in police custody. The witness to the recovery was also examined by the prosecution and the recovery was made from the house of accused No.3 who was at that time not in the party array of the accused and it was found lying on the side of the house of accused No.3. At that time it was not within the knowledge or reach of the investigating officer and he came to know about the said concealment of MO2 chopper from the statement alleged to have been given by accused No.2 and it cannot be lightly brushed aside simply on the reason that accused No.2 was taken into custody from the house of accused No.3 and kept under surveillance hours before his arrest was recorded. The proximity of the time, distance in which accused No.2 was found just before the alleged occurrence by which Jaison had sustained injuries, human blood stain on the chopper and the circumstances enumerated as (1) to (xxii) above would definitely show that there is failure on the part of the learned Sessions Judge to consider all the Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 29 circumstances in its proper perspective and there is omission also in considering vital incriminating circumstances which has really resulted in miscarriage of justice. 24. It is true that the revisional jurisdiction governed by Section 401 Cr.P.C. is so limited. Earlier there was no provision for preferring an appeal either by the victim or by the defacto complainant as there was a stigma under Sections 372 and 378 Cr.P.C. That stigma was taken away by an amendment to S.372 Cr.P.C. The amendment to S.372 by Act 5 of 2009 with effect from 31.12.2009 removed the stigma earlier imposed under S.372 Cr.P.C. in preferring an appeal by the victim against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. In other words, before the amendment by Act 5 of 2009 to S.372 Cr.P.C., the victim was actually at the mercy of the State Government to exhaust a remedy by way of an appeal, in a case of wrongful acquittal or conviction for a lesser offence or imposing inadequate compensation. That stigma was actually removed by the Amendment Act 5 of 2009 with effect from 31.12.2009. While Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 30 viewing the matter under this perspective it is clear that the intention of the Legislature while amending S.372 Cr.P.C. is to remove the stigma in preferring an appeal against an order of acquittal or conviction for a lesser offence or imposition of inadequate compensation by the victim. It is true that primarily it is the duty of the State to initiate and pursue criminal proceedings against grave offences. In spite of all these circumstances, the State has not opted to file any appeal. In other words, the absence of due diligence in pursuing the matter by way of appeal by the State especially in a case which would fall under S.302 IPC would permit the culprit to go unpunished even in a heinous crime of murder under S.302 IPC. The legislative intention in formulating and amending S.372 by adding a proviso empowering the victim to prefer an appeal is to clear out the stigma earlier imposed under S.372 and 378 Cr.P.C.. As such, it is well within the jurisdiction of this Court to treat the Criminal Revision filed by the victim as an appeal in the absence of due diligence on the part of the State Government to prefer an appeal in a case which would fall under Section 302 IPC and when the acquittal Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 31 is not justified by sufficient reasons. It is not permissible to permit any culprit to go unpunished simply on the reason that the State did not prefer an appeal though it was required by the real victim. Removal of stigma by way of an amendment would amount to restoration and recognition of right of appeal of the victim. 25. It is also settled that exercise of revisional jurisdiction as against an order of acquittal can be applied only in exceptional cases where the interest of public justice required interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice. The decision rendered by a four Judge Bench of the Supreme Court in **D. Stephens v Nosibolla (AIR 1951 SC 196)** ; and the decisions of the three Judge Bench of the Supreme court in **Dhirendra Nath Mitra and another v. Mukanda Lal Sen (AIR 1955 SC 584)** ; **K. Chinnaswamy Reddy v. State of A.P. and another (AIR 1962 SC 1788); Khetra Basi Samal and another etc. v. State of Orissa etc. (AIR 1970 SC 272); Amar Chand Agarwala v. Shanti Bose and another (AIR 1973 SC 799); Chaganti Kotaiah and** Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 32 ## **others v. Gogineni Venkateshwara Rao and another (AIR** **1973 SC 1274);** and the decisions of the Supreme Court in **Akalu Ahir and others v. Ramdeo Ram (AIR 1973 SC 2145); Satyendra Nath Dutta and another v. Ram Narain (AIR 1975 SC 580)** and in **Bansi Lal and others v. Laxman Singh (AIR 1986 SC 1721)** were placed before us by accused No.2 in order to show that an interference by way of revision requires only in exceptional cases when there is gross miscarriage of justice or illegality. Very recently, the Apex Court in **Ganesha v. Sharanappa and another ((2014) 1 SCC 87)** had again considered the scope and availability of revisional power under S.401 Cr.P.C., and by setting aside an order of acquittal and ordering a retrial in revision, it was held thus: “... The High Court may also interfere in those cases of acquittal caused by shutting out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. In such an exceptional case, the High Court in revision can set aside an order of acquittal but it cannot convert an order of acquittal into that of an order of Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 33 conviction. The only course left to the High Court in such exceptional cases is to order retrial.” There is a change in the entire scenario by virtue of amendment to Section 372 by which a right of appeal to the victim is recognized removing the earlier stigma created by procedural law. Victim is defined under Section 2(wa) Cr.P.C. as including legal heirs as well. 26. A Division Bench of the Patna High Court by a recent decision drawn in _**Parameshwar Mandal**_ v. _**State of Bihar (2014 Cr.L.J.1046 (Patna))**_ has touched upon the various aspects of the proviso to Section 372 as inserted by the Criminal Procedure Code (Amendment) Act, 2008. The import and purport of the proviso has been explained as follows: (i) Status of the victim.-- By virtue of the proviso a 'victim' has been put at a higher pedestal, than a prosecuting agency or a complainant in the matter of preferring an appeal against any order of a criminal Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. (ii) Unqualified right to victim.-- the proviso gives an unqualified right to a victim to prefer an appeal in Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 34 its terms as against the enabling provisions in S.377 and S.378 which only give liberty to a District Magistrate, the State Government, the Central Government and the compalinant. No 'leave to appeal' or 'Special leave' is required to be obtained by the victim. (iii) No period of limitation provided.-- For filing appeal by victim, no period of limitation is provided. In the facts and circumstances of each case, the Court has to determine as to whether the appeal was entertainable or not. (iv) Same yardsticks to apply as in S.378.-- The yardsticks laid down by judicial pronouncements for consideration of appeals under S.378 of the code would also apply to appeals filed by victim under the proviso. (v) Accrual of rights to victim.-- The rights of the victim to file appeal accrues to him/her in all cases in which judgment and order of the Court is passed after the enforcement of the proviso irrespective of the date of occurrence and any subsequent event in the case prior to such judgment/order. (vi) Where victim is dead or incapacitated.-- Where the victim is dead or incapacitated to file appeal, his/her next of kin can file appeal on proof of 'loss' or 'injury' caused to him/her by the crime. Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 35 - (vii) Appeal as 'guardian' or 'legal heir'.-- Where an appeal is filed solely on the basis of his status as 'guardian' or 'legal heir', he/she has to establish the legal status of his/her such status. - (viii) No second appeal under the proviso.-- Once an appeal is filed in terms of the proviso and is entertained by an Appellate Court, no second appeal should be entertained. - (ix) No distinction between police case and complaint case.-- No distinction can be made between a case instituted by informant with police and by a complainant before the Court directly, and an absolute right of a victim to file an appeal under the proviso does not get fettered by any other section of the Code continued in Chapter 29, which includes S.378.” 27. Bearing on the abovesaid principle laid down by a Division Bench of Patna High Court in _**Parameshwar Mandal's case**_ it would be clear that when the victim is dead or incapacitated, his/her next kin can file an appeal on proof of “loss” or “injury” caused to him/her by the crime. After the amendment to S.372, there cannot be any distinction between police case and complaint case. This has to be appreciated in Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 36 relation to S.401 Cr.P.C., under which only a limited jurisdiction alone was conferred by way of revision to the victim prior to the amendment to S.372. It is permissible for this Court to exercise the jurisdiction as an appellate court treating the criminal revision preferred by the next kin of the deceased invoking Section 401(5) of Cr.P.C. But, we do not think it necessary to convert the revision to an appeal as it may prejudice the accused. The accused shall be given a fair opportunity to contest he matter on merits. Hence having regard to the circumstances discussed earlier and the legal position settled, we are of the view that it is fit and proper to set aside the order of acquittal against accused No.2 and we do so and the matter is remanded back to the trial court for a fresh hearing as against accused No.2 and to dispose of the same in accordance with law. The observations and findings made by us in the judgment is only for the limited purpose of allowing the revision petition and shall not be understood as rendering any finding of guilt against accused No.2. 28. No satisfactory evidence was adduced by the prosecution to show any sort of abetment by accused No.3 to Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 37 commit the alleged offence either by accused No.1 or by accused No.2. In fact, there is no evidence to show any instigation or abetment by accused No.3 in the commission of offence done by accused Nos.1 and 2. As such, we are of the view that there is no sufficient ground for interfering with the finding of the learned Sessions Judge as against accused No.3 that he is not guilty of any offence and the acquittal thereof. In the result, Crl.Appeal No.2167/2011 is hereby dismissed, confirming the finding of guilt of accused No.1 under Section 302 IPC and the conviction thereunder and the sentence imposed. Crl.R.P. No.857/2012 is hereby allowed in part. The finding that accused No.2 is not guilty of any offence and the consequent acquittal by the lower court is hereby set aside and the matter as against accused No.2 is hereby remanded back to the lower court (Sessions Court) for having a fresh hearing on the matter and to dispose of the same in accordance with the law in force. Accused No.2 shall appear before the lower court at 11 a.m., on 4.12.2017 for that purpose. Accused No.3 is found not guilty of any offence and hence the order of acquittal as against accused No.3 is hereby Crl. Appeal No.2167 of 2011 & Crl.R.P. No.857 of 2012 38 confirmed. In the event of non appearance of accused No.2 on the said day at 11 a.m., the Sessions Judge shall proceed against accused No.2 by issuing warrant of arrest and also proceed against the sureties, if any, under Section 446 Cr.P.C. ## **A.M.SHAFFIQUE (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-