Viswas @ Kannan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941** **CRL.A.No.570 OF 2016** **AGAINST THE JUDGMENT DATED 30-04-2016 IN SC NO.674/2013 OF III ADDITIONAL SESSIONS COURT, THODUPUZHA** **CP NO.28/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, IDUKKI** **CRIME NO.344/2012 OF Idukki Police Station , Idukki** ## **APPELLANT/ACCUSED:** **VISWAS @ KANNAN AGED 30/16, S/O VIDYADHARAN, KAROLIL HOUSE, KRIMBAN KARA, UPPUTHODU VILLAGE, MANIPARA P.O, PIN 685 602.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY ADV.SRI.ALEX M.THOMBRA, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.570 of 2016 2 **A.HARIPRASAD & M.R.ANITHA, JJ. -------------------------------------Crl.Appeal No.570 of 2016** **-------------------------------------Dated this the 18[th] day of March, 2020** ## **JUDGMENT** ## **Hariprasad, J.** Accused in Sessions Case No.674 of 2013 before the III Additional Sessions Judge, Thodupuzha, who has been convicted for offences punishable under Sections 302 and 450 of the Indian Penal Code, 1860 (in short, "IPC"), is before us in appeal challenging the conviction. 2. Heard the learned senior counsel appearing for appellant and the learned Senior Public Prosecutor for the State. 3. The charge framed against the appellant by the trial court reads as follows: _"I, K.R.Madhukumar, III Additional Sessions Judge,_ ## _Thodupuzha hereby charge you_ _Viswas @ Kannan, aged 26/12,_ _S/o Vdyadaran, Karimban Kara,_ ## _Upputhodu Village._ _as follows :-_ _First, that you stabbed Mony trespassing into the house No.IX/68 of Mariyapuram Grama Panchayat near_ Crl.Appeal No.570 of 2016 3 _Idukki junction in Thankamony Village, where the deceased Mony resides with his wife CW1 Kuttiyamma and family at 8 PM, on 19.04.2012, visiting there in KL5/Q-4877 motorcycle thereby committed house trespassed punishable u/s 450 IPC._ _Secondly, having so trespassing into the house No.IX/68 of Mariyapuram Grama Panchayat near Idukki junction in Thankamony Village, at 8 PM, on 19.04.2012, you stabbed Mony on his left waist twice between ribs 5 and 6 and twice on the left shoulder and consequently he breathed his last on his way to Kottayam Medical College and thereby committed murder punishable u/s 302 IPC._ _And I hereby direct that you be tried by this court on the said charge.”_ 4. Admitted facts are thus: Accused is the son-in-law of the deceased. PW1 is accused's mother-in-law and wife of the deceased. PW2 is the wife of accused. PW4 is the brother-in-law of accused and son of PW1 and the deceased. Ext.P1 is the first information statement lodged at the instance of PW1. At 2.00 a.m. on 20.04.2012 PW1 informed the police that the accused stabbed her husband (deceased) at about 8.00 p.m. on 19.04.2012. It is the case in Ext.P1 that their daughter Simi, who is the wife of accused, was staying with her parents at the material time as Crl.Appeal No.570 of 2016 4 she was pregnant. It has also come out in evidence that there were differences of opinion between the accused and his wife Simi (PW2). On the fateful evening, the accused came to his wife's house with their wedding album. Accused demanded that PW2 should come along with him to his house. Deceased objected to the idea of the accused taking PW2 away during night. Infuriated by the resistance by the deceased, accused drew out a knife kept in his loin and stabbed the deceased, who was sitting in the sit-out of his house. PW1 meddled with the matter and PW2 also came there on hearing a loud cry and separated the accused from the deceased. Though her husband was taken to a hospital, he succumbed to the injuries. According to the averments in Ext.P1, PW2 was not present at the place of occurrence at the time of incident. 5. PW1 testified in support of the prosecution case. However, she materially deviated from the statements in Ext.P1. It is her version that at about 6.00 p.m on 19.04.2012, the accused came to her house. At that time her husband was sitting on a chair in the sit-out. PW1 deposed that the accused wanted to take his wife (PW2) along with him. Deceased resisted his demand. Thereafter a wordy duel, showering abuses at each other, occurred. It is the case of PW1 in chief-examination that the accused drew out a knife kept in his loin and stabbed the deceased. The incident of stabbing narrated by PW1 in her chief-examination does not tally with the averments in Ext.P1. Further, in cross-examination, she stated that PW2 who was watching television show inside the house, did Crl.Appeal No.570 of 2016 5 not come outside despite hearing the commotion raised during the incident. PW1 deposed that while her husband was sitting in the sit-out, he received two stab injuries and when he stood up, the third one was inflicted. It appeared from the trend of cross-examination that the defence wanted to establish that the incident took place in the courtyard of the house. Although PW1 disputed this defence case, in cross-examination answers have been elicited from her indicating that the actual scene of occurrence was not the sit-out, but the courtyard of PW1's house. It is interesting to note that in cross-examination, PW1 explicitly stated that the statements in Ext.P1 were not furnished by her. When cross-examined, PW1 answered that her husband did not stab the accused with MO1 knife, instead he had used a billhook to inflict injury on the accused. PW1 deposed that PW4 (her son) came to the place of occurrence after the deceased had received the stab injuries. This evidence goes against the testimony of PW4 who claims to have reached the place of occurrence at the time when the incident had happened. 6. Now we shall refer to the testimony of PW4, who is the son of the deceased and PW1. In chief-examination, he deposed that after 7.00 p.m. on 19.04.2012 he came home after playing cricket with his friends. When he reached home, he heard a ruck us and found his mother crying. It is his version that when he entered his house, he found the accused stabbing his father. He deposed in chief-examination that immediately he took a stick from the courtyard and bet the accused. He had also deposed Crl.Appeal No.570 of 2016 6 that when accused came to stab him, he brandished the stick to deter the accused from stabbing him. 7. When this witness was cross-examined, he deposed that he did not inform the police that he came home at 8.00 p.m. on that day. That contradiction is marked as Ext.D1. As per Ext.D2 contradiction, he came after the incident and he saw his mother and sister separating the deceased and accused after the combat. PW4's version is that the accused was standing in the courtyard and his father was present in the sit-out at the time when he saw them. He did not see any incident wherein the accused had received stab injuries. Defence has a case that the accused happily came to his wife's house to show wedding album to his wife and family members and he legitimately demanded to take his wife along with him. When that was denied, the fight ensued. This is the defence case put to the witnesses. 8. If we consider the depositions of PWs 1 and 4 together, we find lot of incongruities regarding the time at which PW4 reached home. Whether he had witnessed the incident is also doubtful. Further there is no consistency regarding the location where the fight had happened. Testimony of PWs 1 and 4 cannot be reconciled together. 9. Learned senior counsel for the appellant relying on Ext.D6 wound certificate and Ext.D7 case record contended that the prosecution has falsified the real incident. In fact the accused had sustained injuries at the hands of deceased and his family members. Ext.D6 wound certificate Crl.Appeal No.570 of 2016 7 would show that the accused had multiple stab injuries on chest and scalp. He had an injury on the left temporoparietal area. He had multiple contusions on both upper limb causing restriction on movements. He was referred to the Medical College Hospital, Kottayam for further evaluation and management. Case sheet produced from the Medical College Hospital would also show that the accused suffered very serious injuries in the incident. Admittedly a counter case was registered against the deceased and PW4 under Section 307 read with Section 34 IPC. It was tried as Sessions Case No.567 of 2013 before the III Additional Sessions Judge, Thodupuzha. It is an admitted case that the above case ended in acquittal. 10. Now we shall refer to the testimony of PW2, which is crucial in this case. As mentioned above, PW2 is the wife of accused and daughter of the deceased and PW1. She has a different story to tell about the incident. At the time of incident, she was studying for B.Sc Mathematics in Government College, Kattappana. Affinity between PW2 and the accused, though resisted by PW2's family members, culminated in their marriage. It is the case of PW2 that for about 10 months their wedding album could not be obtained from the studio concerned. On 19.04.2012 at about 6.30 p.m. the incident had happened. Accused came to the house of the deceased to show the album and to take PW2 along with him. When accused informed the deceased that he wanted to take PW2 (wife) to his house, there was a wordy duel between them. In chief-examination PW2 deposed that her father prevented her from going along with the accused. At that time PW2 Crl.Appeal No.570 of 2016 8 along with the accused came to the courtyard. Thereafter a scuffle ensued between the accused and deceased. Accused pushed the deceased and at that time deceased took out a knife used for pruning trees. It is the PW2's definite case that at first her father inflicted a stab injury on the back of the accused. Thereafter both persons scrambled for the knife. In the course of a tussle for knife, deceased suffered an injury on the left side of his armpit. According to PW2, she did not see any incident where her husband stabbed the deceased. It is interesting to note that despite her complete deviation from the previous statement, she was not declared hostile to the prosecution. In other words, prosecution treated her as a loyal witness in spite of she putting forward a different story about the incident. If we accept the testimony of PW2, it can be seen that the deceased was the aggressor. When PW4 came home after the incident, he bet the accused causing injuries noted in Ext.D6. 11. As mentioned above, there is considerable difference between the testimonies of PWs 1 and 4. To make things more worse PW2 has a complete different story insinuating her father. We find the testimony of PW3, who is a neighbour, will not improve the prosecution case. Therefore, on an evaluation of the entire evidence, on which the court below relied on, we are of the view that the prosecution case is shaky. Submission by the learned senior counsel for the appellant that the prosecution has suppressed the real incident and oral evidence adduced by the prosecution does not reveal a credible version appear to be a Crl.Appeal No.570 of 2016 9 ## sustainable contention. 12. There cannot be a dispute that the deceased died on an injury sustained on his chest. Ext.P5 is the postmortem certificate which is proved through PW6. The antemortem injuries are as follows: _“B : INJURIES (Ante-mortem)_ _1. Incised would 5.2 x 1.3 x 8 cm, obliquely, placed on front of left arm, its lower inner sharp end was 6 cm below tip of shoulder._ _2. Incised would 5 x 1.4 x 4 cm, vertical on outer aspect of back of left arm 8.5 cm below tip of shoulder._ _3. Incised penetrating wound 8 x 2 cm, horizontally placed, on left side of front of chest with splitting of tissues, and tag of skin on middle of lower margin, its inner sharp end was 6 cm below front fold of axilla. The wound entered chest cavity through 5[th] intercostal space cutting the lower border of 5[th] and upper border of 6[th] ribs, and piercing the upper lobe of lung at two sites, 1.3 cm apart one below other, and terminated by piercing the pericardial sac and back wall of left ventricle 1 x 0.3 cm. The wound track directed downwards, backwards and to right for a minimum length of 8 cm. Left chest cavity contained 2 litres of blood. Lung was pale and collapsed.”_ PW6, the doctor who conducted autopsy deposed that the death was due Crl.Appeal No.570 of 2016 10 to the incised penetrating injury sustained to chest. Other injuries would have occurred in a scuffle between the two persons. The injury noted in Ext.P5 also probabilise the case of defence that it could have been caused accidently in a scramble for possessing the weapon. Besides, the serious injuries sustained by the accused, as revealed from Exts.D6 and D7, would probabilise the defence case, contended the learned senior counsel. 13. When PW15, the investigating officer, was examined, the contradictions in the depositions of PWs 1 and 4 could be properly proved. 14. Another contention raised by the learned senior counsel on behalf of the appellant is that the prosecution has suppressed material facts relating to the incident and it failed to explain the injury suffered by the accused in this case. To reinforce this submission, reliance is placed on a decision rendered by the Supreme Court in **Shajahan and others v. State of Kerala and another (2007 (2) KHC 88)** . Considering the various precedents on the point, the Supreme Court observed thus: _“8. We shall first deal with the question regarding non-explanation of injuries on the accused. The issue is if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe. In_ Crl.Appeal No.570 of 2016 11 _Mohar Rai and Bharath Rai v. The State of Bihar (1968 (3) SCR 525), it was observed :_ _"...In our judgment, the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants."_ _9. In another important case Lakshmi Singh and Ors. v. State of Bihar (1976 (4) SCC 394), after referring to the ratio laid down in Mohar Rai's case (supra), this Court observed :_ _"Where the prosecution fails to explain the injuries on the accused, two results follow :_ _(1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants."_ _It was further observed that :_ _"In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :_ _(1) that the prosecution has suppressed the genesis and_ Crl.Appeal No.570 of 2016 12 _the origin of the occurrence and has thus not presented the true version;_ _(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;_ _(3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."_ _But non-explanation of the injuries sustained by the accused may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. These aspects were highlighted by this Court in Vijayee Singh and Ors. v. State_ Crl.Appeal No.570 of 2016 13 _of U.P. (AIR 1990 SC 1459) :AIR 1990 SC 1459 : 1990 (2) Crimes 584 (SC) : JT 1990 (2) SC 596 : 1990 CriLJ 1510 : 1990 (3) SCC 190 : 1990 (2) SCR 573.”_ _10. Non-explanation of injuries by the prosecution will not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hari Krishna Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable_ Crl.Appeal No.570 of 2016 14 _rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifling and superficial injuries on accused are of little assistance to them to throw doubt on the veracity of the prosecution case. (See Surendra Paswan v. State of Jharkhand (2003) 8 Supreme 476) and Anil Kumar v. State of U.P. (JT 2004 (8) SC 355). : 2004(7) SCALE 684.”_ A recent decision in **Kumar v. State represented by Inspector of Police ((2018) 7 SCC 536)** is also relied on by the learned senior counsel for the appellant to contend that failure of the prosecution to offer any explanation in respect of the injuries suffered by the accused would show that the Crl.Appeal No.570 of 2016 15 evidence of the prosecution witnesses relating to the incident is untrue or at any rate, not wholly true. 15. Placing reliance on **Raghunath v. State of Haryana (AIR 2003 SC 165)** it is contended by the learned senior counsel that when the court is of the view that the prosecution has not come up with a true story of the incident and it has suppressed the material facts and failed to establish its case beyond reasonable doubt, the view favouring the accused must be accepted. 16. In answer to this contention, learned Public Prosecutor would contend that the prosecution has not withheld the incident relating to the counter case because in the final report itself it has been clearly mentioned that the accused also suffered injuries in the incident for which another case had been registered. It is true that the accused suffered injuries in the incident is a fact mentioned in the final report. However, it is pointed out by the learned senior counsel that none of the records relating to the injuries suffered by the accused was produced by the prosecution as it is the bounden duty of the prosecution to place all the relevant facts relating to the incident before the court. It cannot be selective in producing documents, only which are in favour of the prosecution for procuring a conviction. 17. Another contention raised by the learned senior counsel is regarding the right of private defence. When there are materials on record to consider that there was a free fight between two persons involving a Crl.Appeal No.570 of 2016 16 weapon, the chance of one person sustaining fatal injury in the course of fight cannot be ruled out. If we accept the testimony of PW2, it will have to be found that the deceased inflicted the first blow with MO1 on the accused from the courtyard of his house. Thereafter, there was a push and pull ensued. Testimony of PW1 regarding the incident cannot be believed to be true if we look at Ext.P2 scene mahazar and Ext.P23 scene plan. From the materials on record, we do not find any reason to hold that there was any incident in the sit-out as deposed to by PW1. Defence has a case that in the incident the accused lost his spectacles and it was lying in the courtyard as is evident from Ext.P23. Therefore, accused's claim of private defence based on the prosecution evidence also has some relevance. In order to buttress the claim of private defence, paragraph 12 in **Shajahan** 's case is relied on. The relevant portion reads as follows: “ _12. The only other question which needs to be considered, is the alleged exercise of right of private defence. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression 'right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts_ Crl.Appeal No.570 of 2016 17 _and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short "the Evidence Act"), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence_ Crl.Appeal No.570 of 2016 18 _itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram and Ors. v. Delhi Administration (AIR 1968 SC 702); State of Gujarat v. Bai Fatima (AIR 1975 SC 1478) : 1975 CriLJ 1079 : 1975 (2) SCC 7 : 1975(3) SCR 993; State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC 2226) : 1977 CriLJ 1897 : 1977 (3) SCC 562, and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC 577) : 1979 CriLJ 584 : 1979 (3) SCC 30 : 1979(2) SCR 805. Sections 100 and 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable_ Crl.Appeal No.570 of 2016 19 _apprehension that death or grievous hurt would be the consequence of the assault. The oft-quoted observation of this Court in Salim Zia v. State of U.P. (AIR 1979 SC 391) : 1979 CriLJ 323 : 1979 (2) SCC 648 : 1979(2) SCR 394, runs as follows :_ _"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."_ _The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.”_ 18. Going by the evidence adduced by the prosecution, we are of the view that there could have been two knifes involved in the incident. If we accept the case put forwarded by PW1, the accused had carried a weapon in his loin which was allegedly used for stabbing the deceased. From the testimony of PW2, it will be evident that the weapon used for Crl.Appeal No.570 of 2016 20 causing injury on the accused as well as on the deceased is the weapon kept in a basket in the courtyard. It is interesting to note that only one weapon was recovered in the course of investigation. It is true that the knife sent up for chemical analysis is tested positive for 'O' group human blood. In the fact situations revealed in this case, we cannot find that the accused was responsible for the stab injury merely based on blood group. If we accept the case of PW2, this MO1 weapon was used by the deceased for causing injury on the accused. Thereafter in the course of a tussle for knife, deceased suffered injuries accidently. Presence of O group blood belonging to the deceased was properly accounted for. It is also relevant to note that what was the blood group of the accused was not revealed in the course of investigation. Therefore, merely on a finding in the chemical analysis report that MO1 knife tested positive for 'O' group human blood cannot be taken as a circumstance against the accused. 19. On an evaluation of the entire evidence, we find that the court below did not consider the incongruities in the prosecution case throwing considerable doubt regarding the genuineness of the incident and the actual incident that had happened. Certainly the benefit of doubt should go to the accused. In the result, the appeal is allowed. Conviction and sentence imposed on the appellant under Sections 302 and 450 of the Indian Penal Code, 1860 are hereby set aside. He is found not guilty of those offences and acquitted. He shall be released from jail forthwith if his continued Crl.Appeal No.570 of 2016 21 detention is not required in connection with any other case. Registry shall immediately communicate this direction to the Superintendent, Open Prison and Correctional Home, Nettukaltheri, Thiruvananthapuram for compliance. **A.HARIPRASAD, JUDGE.** **M.R.ANITHA, JUDGE.** ## **cks**