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State of Kerala Vs. Cleetus Thomas and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1983CriLJ1939
AppellantState of Kerala
RespondentCleetus Thomas and ors.
Cases Referred and Bhajan Singh v. State of Punjab
Excerpt:
.....of p. an unsophisticated elderly woman like p. interested evidence is not necessarily unreliable evidence. interested evidence if found to be intrinsically reliable and inherently probable it may itself be sufficient to base a conviction, as pointed out by the supreme court in hari obula reddi v. 2 is that he was frightened, and was not on good terms with p. 3, 5 and 6 who were neighbours failed to support the prosecution. the failure of p. 14. the principles to which regard must be had in dealing with appeal against acquittal are well settled. if the main ground forming the basis of the order of acquittal is entirely and effectively dislodged or demolished the conclusion drawn cannot be considered reasonable or the acquittal upheld. the deceased had 18 other incised wounds which had..........accused thereupon struck varghese with the weapons they had, caused several injuries and left the place. varghese died on the spot. p. w. 2 was walking behind p. w. 1. p. w. 4 was coming in the opposite direction. p. ws. 3, 5 and 6 were also on the road. they have seen the attack on varghese in the street light in front of the workshop closed by beside p. w. 1.4. the first information statement exhibit p-l was given by p. w. 1 at the police station, 8 kms. away from the place of occurrence, at about 11.30 p.m. the same night. the crime was registered against accused nos. 1 to 5 on the basis of ext. p-l statement. the inquest was held at the place of occurrence on 20-7-1979, under ext. p-8. at the scene the body was found lying in a pool of blood at the southern portion of the tarred.....
Judgment:

M. Fathima Beevi, J.

1. The appeal by the State is directed against the order acquitting the respondents, the accused in Sessions Case No. 70 of 1979 of the Additional Sessions Court, Mavelikkara.

2. The respondents-accused 1 to 5, were tried for offence punishable under Sections 143, 148, 149 and 302, I.P.C. on the charge that the' accused forming themselves into an unlawful assembly armed with deadly weapons, in prosecution of their common object committed murder by causing the death of Varghese (37) at about 8 p. m. on July 19, 1979. The incident is alleged to have happened on the public road running from east to west at Arthungal within the limits of the Sherthallai police station. The case of the prosecution briefly stated is this:

3. Varghese, the deceased, and accused Nos. 1 to 5 were fishermen attached to the coastal area at Arthungal. There was a quarrel between the deceased and the first accused on 30-6-1979 in connection with the election to the fishermens' Co-operative Society. They were thereafter on enimical terms. On the date of occurrence, at about 8 p. m. Varghese was returning home along the road accompanied by his mother P. W. 1. The accused rushed towards Varghese from the eastern side while they were walking westwards. The first accused was armed with a Malappuram knife, A2 with a dagger and accused Nos. 3 to 5 with pen knives. The first accused caught hold of Varghese and exhorted the rest to stab him. A2 inflicted a stab on the neck of Varghese while he was being held by A1. Varghese on receiving the injury fell down. Al released him. The five accused thereupon struck Varghese with the weapons they had, caused several injuries and left the place. Varghese died on the spot. P. W. 2 was walking behind P. W. 1. P. W. 4 was coming in the opposite direction. P. Ws. 3, 5 and 6 were also on the road. They have seen the attack on Varghese in the street light in front of the workshop closed by beside P. W. 1.

4. The first information statement Exhibit P-l was given by P. W. 1 at the police station, 8 kms. away from the place of occurrence, at about 11.30 p.m. the same night. The crime was registered against accused Nos. 1 to 5 on the basis of Ext. P-l statement. The inquest was held at the place of occurrence on 20-7-1979, under Ext. P-8. At the scene the body was found lying in a pool of blood at the southern portion of the tarred road. Autopsy on the dead body was performed by P. W. 15 noting the ante-mortem injuries in Ext. P-8 certificate. There were 25 external injuries of which 22 were incised wounds. In the course of further investigation M.O. 1 dagger, M.O. 2 Malappuram knife and M.O. 3 pen knife were recovered in pursuance to the information furnished by the accused 1 to 3 and finally the accused were sent up for trial.

5. The prosecution examined P. Ws. 1 to 6 as eye-witnesses. While P. Ws. 3, 5 and 6 turned hostile, P. Ws. 1, 2 and 4 supported the prosecution and unfolded the narrative of the incident. The plea of the accused was one of simple denial. The Sessions Judge discarded the testimony of P. Ws, 1, 2 and 4 on the ground that they are not eyewitnesses, doubting their presence at the scene of occurrence. The accused were accordingly acquitted of the charge.

6.1. In challenging the order of acquittal the learned Public Prosecutor on behalf of the State urged that the appreciation of evidence by the Court below is nothing but perverse, the prosecution has proved the case beyond reasonable doubt by cogent and convincing evidence of eye-witnesses and that the acquittal has to be reversed. He has taken us through the entire evidence in the case maintaining that the process of reasoning adopted by the trial Court is wrong and incorrect. The respondents learned Counsel contended that the eye-witnesses are not truthful, their evidence is incredible and if two reasonable conclusions can be reached on the basis of the evidence on record, then the view in support of the acquittal of the accused should be preferred and unless the conclusions reached by the trial Judge are palpably wrong and likely to result in grave injustice, no interference by this Court is called for. Section 378, Cr. P.C. gives the appellate Court full power to review at large the evidence upon which the order of acquittal was founded and to reach the conclusion that upon that evidence the order of acquittal should be reversed.

6.2. There is no controversy that an occurrence happened on the public road on the night of 19-7-1979 resulting in the death of Varghese, the second son of P. W. 1. What we have to consider on a review of the evidence is whether the prosecution has established that the injuries had been received by Varghese at the hands of the respondents in the manner and under the circumstances alleged by the prosecution. The direct evidence of P. Ws. 1, 2 and 4 has been relied on by the prosecution to establish the case. These witnesses have given substantially the same version and corroborated each other in all material particulars.

7. P. W. 1 Victoria Karleena (60) is the mother of the deceased Varghese. She had narrated the incident and identifying all the accused who are known to her, stated that when the accused attacked Varghese, she was on the road just behind Varghese and had seen the first accused holding Varghese, the second accused stabbing him on the neck and the five accused attacking him with weapons after he has fallen down. P. W. 1 had explained how she happened to be in the company of Varghese at that time. She said that at about 6 p. m. that day she had given Varghese ten rupees on his representation that he had to take an injection, and a short while after he left the place with the money, she locked the house, walked towards the junction, saw Varghese coming in the opposite direction, joined him and both of them were on the way home when the occurrence happened. The place of occurrence is within 1 km. of their residence. There is no reason why P. W. 1 should falsely implicate these accused and allow the real culprits to escape. P. W. 1 had given Exhibit P-l, the first information statement, within three hours of the occurrence, detailing therein the circumstances in which the crime was committed, the names of all these accused as the assailants, the part played by each, as well as the names of P. W. 2 and P. W. 4 the eye witnesses present at the scene of occurrence. This statement, which had been given expeditiously before there was time for deliberation, fully corroborates the version of P. W. 1 in the witness box. She had at the earliest point of time in Exhibit P-l, mentioned that she gave Varghese cash and followed him after a short while. There was no particular reason for saying that she gave him money and had gone out to see what the matter was, if the story was not true. It is incorrect to say that this story of P. W. 1 having gone to the road was made up at the spot and introduced in the first information report after deliberation. P. W. 1 who was living separate, had no other preoccupations and it is quite natural that she had after locking the house proceeded to meet her son, who had a separate establishment with wife and seven children, a short while after he had gone. An unsophisticated elderly woman like P. W. 1 would not have hesitated to go out when she had been told that her son was not keeping well and bad been to consult the physician. The presence of P. W. 1 at the scene of occurrence cannot therefore be doubted.

8. The Sessions Judge in rejecting the evidence of P. W. 1 has stated that the conduct of P. W. 1 of going after her son does not appear to be probable, that her son was not suffering from any serious disease, that he was not a child of tender years and the interval was too short as to rouse any suspicion in the mind of P. W. 1, that something might have happened to her son. This reasoning, as we have indicated, is unsustainable. The learned Sessions Judge was wrong in thinking that P. W. 1 must necessarily be in the house all the time. Apart from the fact that there was no justifiable ground for rejecting the testimony of P. W. 1, we are generally impressed by her evidence and the substantial corroboration received from Exhibit P-l, the first information statement The manner in which P. W. 1 deposed, consistent with the earliest version given by her, strikes confidence to our mind and justifies our placing implicit reliance on her evidence. The fact that P. W. 1 is the near relation of the deceased only requires her evidence to be subjected to careful scrutiny. Interested evidence is not necessarily unreliable evidence. Interested evidence if found to be intrinsically reliable and inherently probable it may itself be sufficient to base a conviction, as pointed out by the Supreme Court in Hari Obula Reddi v. State of A.P. : 1980CriLJ1330 . However, as a matter of caution, the Court may look for some assurance from independent evidence.

9. We find P. Ws. 2 and 4, two independent witnesses, substantially corroborating the testimony of P. W. 1. The names of these two persons have been mentioned in Ext. P-l first information statement and they were questioned by the police the next day. P. W. 2, Albert Michael, is the son of the brother of P. W. 1. He is a fisherman living in the same locality. He had been to the sea for work and in the evining he had gone to the tea shop near the bus stop and was returning along the road just behind P. W. 1 when he happened to witness the occurrence. He stepped forward to see the injured lying dead, did not remain at the spot for long and went home without rendering any other assistance to P. W. 1. The explanation given by P. W. 2 is that he was frightened, and was not on good terms with P. W. 1 and her children. It is not unusual for the villagers in a coastal area to go to the bus stop near the church in the evening for the purpose of relaxation. The presence of P. W. 2 on the road near the scene of occurrence cannot therefore be doubted. It is also understandable why P. W. 2 had conducted himself in such a manner. His father is no more and he does not have so much attachment for P. W. 1. The instinct of self preservation is paramount and in the circumstances of the case it could not be expected that the witness would remain at the spot at the risk of his own safety.

10. The reasons stated by the Sessions Judge for disbelieving the evidence of P. W. 2 is that it would be extremely abnormal conduct for a person in the position of P. W. 2 not to render any help to P. W. 1 in going to the police station to make a complaint of the occurrence or calling others to the scene of occurrence. P. W. 1 has stated that her other sons immediately reached the scene and that there were several other persons also on the road. It was not therefore necessary for P. W. 2 to render assistance to P. W. 1 or accompany her to the police station. The Supreme Court has recently in Ram Chander v. State of Haryana : 1983CriLJ1072 pointed out that to discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. People react to situations not always in a uniform way. The reaction vary according to the mental equipment and social awareness of the individual. P. W. 2 had been disbelieved by the Court below for reasons manifestly untenable. He cannot be expected to remain cool at the place having witnessed such an attack on one of his near relations without apprehending danger to him. His conduct cannot therefore be characterised as callous or his testimony discarded as incredible.

11. The last witness P. W. 4 Xavier Job, though a native of Punnapra, has his near relations and friends at Arthungal. He had been on the date of occurrence on a visit to his cousin Jainamma, residing about 6 kms. away from the place of occurrence. He left the place at 6 p. m. along his usual route to Arthungal bus stop from where he could board the bus till 10.30 p. m. He was coming in the opposite direction when Varghese was suddenly attacked by the accused persons. He too did not intervene and having understood that Varghese was dead, he returned to his cousin's house and spent the night there. He is a fishing boat driver and had acquaintance with the local people and was known among them as the brother-in-law of Antony. It has not been shown that he has any special reasons to be biased against the accused or interested in the prosecution. If he was not one of the persons present at the place of occurrence, there was no reason for P. W. 1 to mention his name as an eyewitness in the first information statement given, the same night. The reasoning of the Sessions Judge for disbelieving the evidence of this witness is that his explanation for coming to the bus stop does not carry conviction and the explanation attempted to be offered for his alleged presence at the scene of occurrence is not acceptable. It was suggested that there was another bus stop at Thaickal within 1 km. of the house of Jainamma P. W. 4 had stated that he used to take this route because he had few friends whom he had to meet. The fact that he was known among the villagers at Arthungal probabilises the case that he had been accustomed to take that route and as usual he had been proceeding in that direction. The observation that if he was really afraid of the accused it would have been more rational on his part not to give evidence against them is nothing but perverse. There is nothing unnatural in the conduct of P. W. 4 in leaving the place immediately. To our mind, the entire reasoning on the part of the Sessions Judge was based on plain conjecture.

12. It may be that P. Ws. 3, 5 and 6 who were neighbours failed to support the prosecution. Their names had not been mentioned in Ext. P-l because P. W. 1 had not at that time identified all the persons who had gathered there. The failure of P. Ws. 3, 5 and 6 to support the prosecution is no reason to disbelieve the other eye witnesses P. W. 2 and P. W. 4. The argument that the names of P. Ws. 2 and 4 found a place in Ext. P-l because they might have volunteered to support the prosecution is self-contradictory. The grief-stricken mother, could not have at the time of giving the first information statement embarked upon fabrication of evidence anticipating support from P. W. 2 who had no attachment and P. W. 4 hailing from Punnapra, Their names are mentioned in Ext. P-l only because they have witnessed the occurrence.

12-A. The direct evidence of the eyewitnesses is substantially corroborated by the medical evidence and other circumstances proved in the case. All these witnesses had seen the attack from close range when the street light was burning. The respondents were persons known to them. There would have been no difficulty for the witnesses to identify them. The learned Judge has discarded the evidence on superficial and unsubstantial grounds and disbelieved the direct testimony for reasons manifestly untenable. There is thus clear, cogent and convincing evidence for the prosecution that the occurrence happened in the manner alleged and that the respondents were the real assailants.

13. An attempt had been made by the respondents by tendering defence evidence to make out that there had been no light enabling the witnesses to identify the assailants and at the material point of time P. W. 1 was at her residence. The defence evidence has not been discussed by the learned Sessions Judge but had been referred to before us by the counsel for the respondent, D. W. 2, though a neighbour, has been examined to contradict P. W. 1. It is not difficult to procure such a witness at the stage of the trial in order to contradict an eye-witness. His evidence cannot bear scrutiny. The evidence of D. Ws. 1, 3 and 4 is not conclusive that there was no electric supply at the point of time and at the place of occurrence to rule out the possibility of the witnesses identifying the assailants, with the help of the street light. We are not impressed with the defence evidence.

14. The principles to which regard must be had in dealing with appeal against acquittal are well settled. The Supreme Court has reiterated in Ajit Singh Thakur Singh v. State of Gujarat : 1981CriLJ293 that where two reasonable conclusions can be drawn on the evidence, the appellate Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the trial Court. If the main ground forming the basis of the order of acquittal is entirely and effectively dislodged or demolished the conclusion drawn cannot be considered reasonable or the acquittal upheld. The appellate Court is justified in reversing the acquittal where the view of the evidence taken by the trial Judge is manifestly erroneous and arguments employed by it for acquitting the accused are utterly unsustainable, as pointed out by the Supreme Court in Maharaj Singh v. State of Rajasthan, 1981 SCC (Cri) 306 : 1981 Cri LJ 477. Keeping in mind these principles we have reviewed the evidence and examined the reasons given by the Court below for rejecting the evidence of the eye witnesses in this case. The reasons given for discarding their testimony as we have already shown are flimsy, unsubstantial and bear no scrutiny. The order of acquittal has therefore to be reversed.

15. The question now remains as to what are the offences for which the accused could be convicted. The manner in which the five accused persons came in concert and the blows they had given the deceased with dangerous weapons, and then escaping from the scene with the weapons, constitute them members of an unlawful assembly and demonstrate what their common object was. In determining what offences the accused are guilty of, it is necessary to find what the common object of the assembly would have been, considering all the circumstances and nature of injuries that were inflicted upon the deceased. We may in this context refer to two decisions of the Supreme Court in Sarwan Singh v. State of Punjab : 1978CriLJ1598 and Bhajan Singh v. State of Punjab : 1979CriLJ7 .

16. P. W. 15 found that the deceased had 25 injuries externally and three internally. The three internal injuries to the liver correspond to external injuries 5, 6, 9 and 10. These injuries together are sufficient in the ordinary course of nature to cause death. The deceased had 18 other incised wounds which had been produced by using weapons like M. Os. 1. 2 and 3. None of the accused has been specifically charged under Section 302 for individual acts committed by them and it is not therefore possible to hold any one of the accused guilty of causing the injuries which are sufficient in the ordinary course of nature to cause death. It could not be ascertained which of the accused had caused the fatal injuries. It was also not known as to who caused the injury individually. Where a concerted attack is made on the victim by a large number of persons, it is often difficult to determine the actual part played by each of them. If the injuries that are sufficient in the ordinary course of nature to cause death are traced to a particular accused, he will be guilty of an offence under Section 302 without the aid of Section 149. When the injuries caused are cumulatively sufficient to cause death, it is necessary before holding each of the accused guilty under Section 302 read with Section 149 to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under Section 302, I.P.C. would be committed in prosecution of the common object.

17. The common object of an assembly is to be ascertained from the acts and language of the members, composing it, and from a consideration of all the surrounding circumstances. On an analysis of the injuries in the instant case, and taking into account all the circumstances, we are not satisfied that the common object of the assembly was to cause death. It could not be said that any one of the persons who inflicted he injuries intended to cause death or such injury as is sufficient in the ordinary course of nature to cause death.

18. The prosecution has no case of any premeditation and no motive has been proved in this case. Even the quarrel that is alleged to have taken place between the first accused and Varghese on 30-6-1979 is not proved. P. W. 9, the solitary eye witness, examined for the purpose is hostile. What the immediate provocation for the attack was still remains unrevealed. It is proved that the accused in a body arrived at the spot each one of them had been armed with weapons and mounted a concerted attack, on the deceased inflicting bodily injuries. Most of the injuries are incised wounds not individually sufficient to cause death. The only words by way of exhortation uttered by the first accused was to stab, implying that the object of the assembly could have been only to cause grievous injury. The accused can therefore be found guilty of the offence punishable under Section 326 read with Section 149, I.P.C. The accused are also guilty under Section 148, I.P.C.

In the result the appeal is allowed and the order of acquittal is set aside. The accused 1 to 5, the respondents herein, are convicted for offence punishable under Section 326 read with Section 149, I.P.C. and sentenced to rigorous imprisonment for a period of three years, which in our view is sufficient to meet the ends of justice. We also convict the accused under Section 148, I.P.C. In the circumstances of the case, no separate sentence on that count is imposed.


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