1. The accused who has been convicted of murder for causing the death of one Ramakrishna Pillai by a stab with a dagger on 19-5-1961 and sentenced by the Sessions Judge, Alleppey, to death has preferred this appeal from his conviction and sentence; and the Sessions Judge has submitted the proceedings to this Court for confirmation under Section 374, Cr.P.C.
2. According to the prosecution at about 6 p.m., on 19-5-1961, the accused and Pw. 1 were engaged in a conversation in front of Pw. 3's teashop near the cinema theatre at Oachira when Ramakrishna Pillai (the deceased) and George came by that way. The accused desired George to treat him with tea, but the latter refused to oblige him. The accused felt slighted at this and caught George by his waist, but George wriggled out of the catch when the, accused gave him a blow with his hand, and Ramakrishna Pillai fisted the accused once on his forehead. Pws, 1 and 3 and others intervened and averted further scuffle among them.
RamaKrishna Pillai and George abandoned the idea of seeing cinema that day and returned home northwara along the Quilon Alleppey road. As they set forth, the accused cried out that he would meet them later; and a while thereafter he and Pw. 1 followed them. Pw. 4 saw RamaKrishna Pillai and George going along the read in front of his house which is not far from the cinema theatre, followed by the accused and Pw. 1 at a distance of about 5 feet, and heard the accused abusing and challenging Ramakrishna Pillai as they proceeded. The parties went along the main road for a further distance of about 3 furlongs when they took the road branching off north-eastward near the Coconut Research Station, Kayamkulam.
About a furlong and a half from the junction is a railway level-crossing. To the west of the level-crossing are a toddy-shop, a tea-shop and a shop of miscellaneous goods. Pw. 1 stopped at the railway level-crossing, while-the others crossed it and went northward along the by-road. Soon the accused, who was all along behind Ramakrishna Pillai and George, got to the front side of Ramakfistma Pillai and plunged a dagger into his abdomen 31/2' below the left nipple. Later medical examination revealed that the stab went 6' deep penetrating the abdominal cavity through the tenth intercostal space cutting his peritoneum omentum and the left kidney. Ramakrishna Pillai turned back, ran southward and fell on the side of the road about a 100 ft. from the spot.
Meanwhile the accused rushed towards George with the dagger in hand, but George ran westward along the railroad and escaped. The accused then ran away northward with the weapon. Seeing that the accused had left the scene, George came back to the place, went to the Coconut Research Station and caused Pw. 5 intimate the Police of the incident over the phone. Pw. 15, the Sub-Inspector of Police, Kayamkulam received the information at 9 p.m. and at once rushed to the place.
Meanwhile Pw. 1 was attending on Ramakrishna Pillai and George joined him. The Sub-Inspector and party reached the place soon and removed Ramakrishna Pillai to the Government Hospital, Kayamkulam, where the injured gave Ext. P-16 statement to Pw. 15 at 9-30 p.m. naming the accused as the person who stabbed him, and Pw. 1 as a witness to the event. Pw. 10, the Medical Officer, also saw the deceased by 9-30 p.m. Ext. P.7 is the wound certificate issued by him. He sutured the wound but seeing heavy discharge of blood through the urinary passage of the injured directed him to be taken to the District Hospital Quilon. He sent Ext. P-8 requisition to Pw. 11, the sub-Magistrate, Kayamkulam, who reached the hospital by 12-10 midnight and recorded Ext. P-11 dying declaration in the presence of Pw. 10 who certified the patient to have been conscious then. The injured was then removed to the District Hospital, Quilon, by his brother, but as they entered the Hospital premises, Ramakrishna Pillai expired at 4-30 a.m. on 20-5-1961.
3. The accused was absconding after the event. He could be arrested only on 29-9-1961 though two constables were specially deputed to find out and arrest him. The charge sheet was laid by Pw. 13, the Circle Inspector of Police, on 29-9-1961 before the Sub-Maeistrate, Kayamkulam and later on transferred to the Sub-Magistrate, Karthikapplally, pally, who after preliminary enquiry committed the accused to the Sessions Court.
4. The accused made no statement, except to deny the charge, before the Sub-Magistrate at the preliminary enquiry, in his statement under Section 342, Cr.P.C. before the Sessions judge he stated that while he was near the cinema theatre at Oachira at about 5-30 p.m. on 19-8-1962' George and RamaKrishna Pillai came there in a drunken mood and George asked him why he was standing there, to which he retorted 'If toddy has been taken, keep it in the stomach', that George abused him and he returned in the same coin, that George and his companion then went northward threatening to meet him when he would be going northward, that two hours thereafter the accused went northward home and when he reached near the railway level-crossing George and Ramakrishna Pillai came out from the toddy-shop, surrounded, beat and fisted him causing a bleeding injury on his forehead, that as bicod oozed out he became apprehensive of death, that he did not know what took place thereafter, that Ramakrishna Pillai, George and Pw. 1 were friends and companions, that accused had not met Pw. 1 at Oachira that day, and that he had never mentioned to the Police of having slabbed with a dagger and thrown the dagger into water. (It may he noted in this connection that nowhere in the evidence on record has the Police mentioned that the accused told them of his having stabbed with a dagger and thrown the dagger sway in water).
5. The Sessions Judge believed the testimony of Pws. 1 and 2, who are eye-witnesses to the event, and on its basis as also of Ext. P-15, which is the deposition before the Committing Magistrate of George who could not be got down for examination at the trial, convicted the accused of murder under Section 302, I.P.C. and sentence him to death subject to confirmation by the High Court. Hence this appeal by the accused, and the reference under Section 374, Cr.P.C.
6. Pws. 1 and 2 have sworn to have actually witnessed the Stab inflicted by the accused on the abdomen of the deceased. Though the accused has characterised Pw. 1 as a friend of the deceased and an enemy of his, we do not find even a suggestion to that effect made in his cross-examination. Pw. 3, an absolutely disinterested witness, against whom nothing has been brought out in cross-examination to suspect his veracity, has sworn to Pw. 1 having teen in the company of the accused before his shop on the evening before the occurrence and to his accompanying the accused as he followed Ramakrishna Pillai after dusk. Pw. 4, whose testimony stands unshaken by cross-examination has sworn to have seen Pw. 1 in the company of the accused following the deceased and George at about 7 p.m. on the main road in front of his house and heard him advising the accused not to pick quarrels while the latter abused and challenged Ramakrishna Pillai. It is clear from their evidence that Pw. 1 was a friend and companion of the accused. His testimony is that, as he stood at the railway level-crossing, he saw the accused getting on to the front of Ramakrishna Pillai and plunging a dagger into his abdomen and that Ramakrishna Pillai cried out that he was stabbed by the accused, ran towards Pw. 1 and further by a few feet and fell down where he lay till the Police came and removed him, to the hospital.
7. Pw. 2, against whom the accused had nothing to say In his Section 342 statement, though his particular attention was called to his evidence by the Sessions Judge, has also sworn categorically that he saw the accused inflicting a stab on the deceased at about 8-30 p.m. at the place of occurrence alleged by the prosecution. The testimony of both Pws. 1 and 2 has been accepted by the Sessions Judge before whom they were examined and on going through the evidence we see no reason to differ from him.
8. The Sessions Judge has also accepted in evidence Ext. P-15, the prior deposition of George given before the Committing Magistrate. Exception is taken by counsel for the accused to the admissibility of Ext. P.15, though none such appears to have been taken before the Sessions Judge.
9. Pw. 13, the Circle Inspector of Police, Kayamkulam has sworn:
Chacko George is a military man. The summons issued to him for his appearance in this Court stands unserved and unreturned. I therefore caused a telegram to be sent to the Commanding Officer of his unit through D.S.P. Alleppey, The Commanding Officer thereupon sent a reply to the Court and to the D.S.P. The one shown to me is the confirmation to the telegram sent to the Court. It is marked as Ext. P-14. Due to the exigencies of service the witness is not available for examination and cannot be spared. The witness is now in active service at Goa.
Pw. 14, the Sub-Magistrate, Karthikapally, who recorded Ext. P.15 deposition of George, has sworn that the accused was accorded opportunity to cross-examine the witness, though he did not avail it, and proved the deposition of George as Ext. P.15 in the case.
Ext. P.14, the express telegram referred to by Pw. 13 reads:
Supt. Police Alleppey Telegram dated fifteenth, Chacko George cannot be spared due to exigencies of service.
From OC 752 INDEP TPT PL.
Counsel for the accused contended that there is nothing in the telegram to show that George was being detained in connection with the military operations in Goa or to indicate the period during which he could not he spared therefrom and therefore the case did not fall within the ambit of Section 33 of the Evidence Act. According to him the Sessions Judge ought to have adjourned the trial for a period till George, who was a material witness in the case, would be available for examination, and not having done so Ext. P 15 deposition in a prior proceeding should not have been accepted In evidence at the trial.
Reliance was placed on In re Antony Nadar ILR (1944) Mad 687 : AIR 1944 Mad 319 where King, J., with the concurrence of Shahabuddin, J. observed:
We note however from the judgment of the learned Sessions Judge of Tinnevelly that the principal evidence against the accused consisted of the deposition of one Thomas alias Subramania Nadar before the committing Magistrate. The decision of the learned Judge to admit this evidence under Section 33 was evidently based upon a statement by Pw. 15, the police constable, who says that summons to this witness could not be served as he had joined the army and his address was not known. No similar questions were put to the Sub Inspector of Police, examined as Pw. 16, and nothing elicited as to what further steps the prosecution took to discover the address of the witness. In these circumstances and In view of the fact that the evidence of this witness is of such paramount Imoortance in deciding the case against the appellants two of whom have been sentenced to death and two, for transportation for life, we have come to the conclusion that the learned Sessions. Judge was not, In the circumstances of the case, justified In applying Section 33 of the Act. and that he might have well satisfied himself by further enquiries whether the application of that section was really necessary.
10. Referring to Section 33 Indian Evidence Act, in Chainchal Singh v. Emperor 72 Ind App 270 : AIR 1946 P.C.I., Lord Goddard observed;
Where it is desired to have recourse to this Section on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness, who is to testify against him, should give his evidence before the Court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits evidence given by the witness to be read are strictly proved. In a civil case a party can if he chooses waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence. In very many of these cases the accused is not represented at this (preliminary enquiry) stage, so while he has the opportunity to cross-examine it is not often that this would be effectively done. This is another reason for exercising great care before admitting a statement.
In the present case, the accused had no counsel before the committing Magistrate, nor was George cross-examined when he gave Ext. P 15 deposition. Though there was some material in the case to show that George was not available for examination at the trial, the Sessions Judge had not adverted to the Section particularly, and given his reasons to admit the previous statement in evidence. As the power under Section 33, Evidence Act, is an extraordinary one, it is essential that a Judge exercising the same should record his reasons for its exercise either in the judgment or in a separate order. All that the Sessions Judge has, in the present case, held to admit Ext. P. 15. is:
In addition Ext. P. 15, the testimony of George given before the committal court in the presence and hearing of the accused, is also in full conformity with the evidence of the witnesses to the occurrence. Ext P. 14 shows clearly that George who gave Ext. P. 15 statement is now in active military service and it is now not possible to procure his attendance in Court due to exigencies of service
We do not think that this is enough to satisfy the requirements of Section 33 of the Evidence Act, or the standard indicated by their Lordships of the Privy Council. If therefore Ext. P. 15 was ' he originali evidence against the accused' we would have followed the ruling in ILR (1944) Mad 687 : AIR 1944 Mad 319 but in this case there is ample evidence apart from George's statement, to prove the guilt of the accused. Pws. 1 and 2 are eyewitnesses to the event. The Sessions Judge who saw and heard them at the trial found no reason to disbelieve them on the main points In their evidence; and on going through their evidence we feel no doubt as to the guilt of the accused. His conviction under Section 302 I.P.C. has therefore to be affirmed, as was done in similar circumstances In Chainchal Singh's case, 72 ind App 270 : AIR 1946 PC 1 by the Judicial Committee.
11. As regards the sentence, we are of opinion that the lesser penalty of imprisonment for life is sufficient to meet the ends of justice In this case. Ramakrishna Filial has, in Fxt. P 11 his dying declaration, stated that he was stabbed while he interceded in a quarrel between the accused and George. There is no case that the incident was the result of any premeditation. The fact that the accused had been walking behind Ramakrishna Piliai at close heels for about a mile, scolding and abusing the latter, shows that he had then no intention of killing him. i In the circumstances, we confirm the conviction of the: accused under Section 302 I.P.C. but reduce his sentence to rigorous imprisonment for life.
In the result, the conviction of the appellant under Section 302 I.P.C. is confirmed, but the sentence is reduced to rigorous imprisonment for life. With this modification the appeal is dismissed.