1. Ouscph Verkey, the appellant in this criminal Appeal, was convicted by the learned Additional Sessions Judge of Kottayam on two counts under Section 326, I, P. C. and sentenced to undergo rigorous imprisonment for two years on each count, with the direction that the two sentences will run concurrently. The case against him was that on 30-7-1950 at about 4-30 p. in. he caused grievous hurt with a deadly weapon, to wit a dagger, on his sister's husband (P. W. 2) and on the laser's father (P. W. 1). The learned Judge accepting the prosecution case convicted the appellant and sentenced him as stated above. We heard the appeal on 25-2-1957 and at the conclusion of the hearing passed orders allowing the appeal and setting aside the conviction and sentence and acquitting the appellant. That order stated that the reasons therefor will be delivered later. In this judgment we set out the reasons for the decision.
2. Paragraph 2 of the judgment of lower court states the prosecution case as follows;
'P. W. 1 one Chacko Augusthy, Kuttikattu 'Vceda Mavady Kara, Poonjar Nadubhagom Pakuthy and P. W. 2 Jacob, son of P. W. 1, were on inimical terms with the accused and his deceased father one Avira Ouseph at the time of the occurrence. Theaccused is the brother of the wife of Jacob, P. W. 2. On 30-7-1950 at about 4-30 p. m. Ouseph and his son, the accused met Augusthy on the Mavadi-Theekoil road in front of Kunakattu House. An altercation took place between them. Ouseph beat Augusthy with M. O. 1 stick on several parts of his body, while the accused hit him with a stone on several parts of his body. The accused also stabbed him on his abdomen with a dagger. P. W. 2 Jacob came to the spot at this stage and stabbed the accused on his abdomen and other parts of his body with M. O. 2 dagger. The accused also stabbed P. W. 2. with a dagger on his neck, shoulder and his head. Ouseph also sustained injuries at the hands of P. W. 2'.
In paragraph 17, summarizing its conclusions the lower court states:
''An analysis of the evidence discussed above would show that the occurrence has taken place in the following manner: Ouseph and the accused were going westwards along the road. Augusthy was going eastwards. When they met in front of Kunnakattu Veedu an altercation took place between them. Ouseph beat P. W. 1 (Augusthy) with M. O. 1 stick. The accused stabbed P. W. 1 with a dagger on his abdomen. At this stage P. W. 2 came to the spot with a dagger hearing about the quarrel from P. W. 3. lie stabbed the accused with his dagger. The accused also stabbed P. W. 2 in turn. While these two persons were so stabbing each other, Ouseph beat P. W. 2. P. W. 2 then stabbed Ouseph. There is no justification for Ouseph to beat P. W. 1 with stick. There is no justification for the accused to stab P. W. 1 also. Ouseph and the accused were the aggressors. It cannot be stated that the accused stabbed P. W. 1 in exercise of his right of private defence, P. W. 2 stabbed the accused only in exercise of the right of private defence. He had every right to do it for saving the life of his father, P. W. 1. Though the accused stabbed P. W. 2 only after the latter has stabbed him, he could not have any right of private defence, since he was an aggressor. As such, he is liable for the acts done by him. I have found above that he has caused grievous hurt on P. Ws.. 1 and 2 by inflicting the injuries on them by a dangerous weapon like a dagger. Hence he is guilty of offence under Section 326 I. P. C. and I find accordingly'.
The case giving rise to the appeal was registered as a regular Calendar Case, but was committed to the Court of Session as there was a counter-case in which P. W. 2 in this case stood charged for the murder of the appellant's father. That case was tried by the lower court as Sessions Case No. 22 of 1956 & it ended in the acquittal of the accused thereto on the ground that he was justified by the right of private defence in causing the death of the appellant's father. In this case though a similar plea was set up the court negatived it and accepted the prosecution case in its entirety. We, however, found it difficult to agree with the lower court's conclusion for, more reasons than one. The more important among them are stated herein below:-
3. It is common ground that at the time and place mentioned by the prosecution there was an encounter between P. W. 1 and P. W. 2 on the one hand and the appellant and his deceased fatheron the other. It is also common ground that as a result of the attack each side made on the other the appellant's father died, that the appellant himself had to remain an in-patient in the hospital unable to follow his ordinary avocations in life for a period of 35 days and that P. Ws. 1 and 2 had each of them spent 45 days as in patients in the hospital for treatment of their injuries. Though there is evidence to show that the two families have been ill-disposed towards each other for some time past, the evidence as to the origin of the fight that took place between them is shrouded in mystery. The prosecution case that it started with an attack by the appellant's father on P. W. 1 with a heavy stick (M. O. 1) and that the appellant almost immediately joined hands with his father by hitting P. W. 1 with a piece of stone, is belied by the medical evidence in tho case. Though the witnesses who spoke to the origin of the fight repeated this story with consistency and they would have it that the appellant's father gave several heavy blows on P. W. 1 with M. O. 1 & the appellant likewise gave several hits on him with a piece of stone, the only injury which P. W. 9, the medical witness in the case saw on the person of P. W. 1 & noted by him in Ex. P. 10, is an incised abdominal wound, the alleged infliction of which formed one count of the charge against the appellant. Including the two victims (P. Ws. 1 and 2) the prosecution examined six eye-witnesses. Of them P. Ws. 3 and 8 saw only the initial blows referred to above and where on their own showing not at the scene of the crime when the appellant is alleged to have stabbed P. W. 1 and P. W. 2 with a dagger. P. W. 6 no doubt spoke to the whole occurrence as put forward by the prosecution, but the lower court has entirely disbelieved him and in our opinion, rightly. Regarding the evidence of P. Ws. 1 and 2 the view taken by the learned Judge was that as they had from time to time changed their versions as to the occurrence and developed them so as to suit the exigencies of the prosecution their testimony could not be acted upon unless there was substantial corroboration from independent sources. In view of the fact that P. W. 2 was at that time standing his trial for the murder of the appellant's father and they were both therefore obliged to seek to exculpate him from that crime we are not prepared to say that the lower court was wrong in thinking that their evidence should be accepted with extreme caution. The only corroboration that was forthcoming for their evidence as to the appellant's complicity was the evidence of P. W. 7, who at the time of his examination on 22-10-1956 before the Court of Sessions was but 14 years of age. The occurrence giving rise to the case took place more than six years prior to that date when the witness was hardly 8 or 9. It is difficult to think that this boy would have recollected in October 1956 all that he saw about the occurrence in July 1950. Courts of law always view with suspicion on the testimony of child witnesses and in this case the lower court had found that certain parts of the testimony of P. W. 7 were not entitled to credence. In the circumstances we thought it quite unsafe to confirm the appellant's conviction based as it was entirely on the testimony of P. Ws. 1, 2 and 7.
4. Further the first report about the occurrence to the authorities was made by the appellant afterhe and his father were removed to the hospital during the night of the occurrence itself. It was only at about 10 A. M. on the day following that P. W. 1 and P. W. 2 were taken to the hospital and gave their version of the occurrence. The account which the appellant gave about the occurrence and which formed the basis of the First Information Report in the counter case was not made to form part of the evidence in the case. Where the same occurrence gives rise to conflicting versions and to a case and counter-case, for the court to find out the truth it is always essential that the earliest record about it should be made available to the court whether the record is based on information supplied by the prosecution or the defence. This is an elementary duty which a State prosecution has to keep in view and we regret to notice that in spite of repeated observations to that effect, those in charge of State prosecutions pay no heed to observe that elementary duty. The absence before us of the First Information which the appellant gave seriously handicapped us in evaluating the evidence in the case properly. The trial took place, as stated earlier more than six years after the occurrence and this inordinate delay was yet another reason for our refusing to take the testimony of P. Ws. 1, 2 and 7 at its face value. Though the appellant's father who died as a result of the injuries he sustained during the occurrence was proved to have been armed with a knife (M. O. III) and that knife was recovered from the scene of the occurrence, in contradiction to all his earlier versions, P. W. 2 denied that the appellant's father stabbed him. This is a deliberate attempt to throw the responsibility for causing injuries both on P. W. 1 and P. W. 2 on the appellant, p. W. 1 has nothing to say as to how the appellant or his father happened to be injured nor has any other prosecution witness given a proper account as to the infliction of injuries on the appellant and his father. Ex. P. 15 the appellant's wound certificate showed that he had sustained not less than 5 incised wounds. Likewise Ext. P. 18 the post-mortem certificate for the autopsy conducted on the dead body of the appellant's father showed that he had sustained as many as 6 very serious incised wounds. It would be too much to accept the ipsc dixit of P. W. 2 that he caused all those injuries in the exercise of the right of private defence.
5. On the whole we were not able to agree with the lower court that the prosecution had proved its case beyond reasonable doubt or that the version that they placed before the court was a proper or true account of the occurrence that took place on that eventful day.
6. Hence our order allowing the appeal and acquitting the appellant.