Dismissed

T.J.Shaji v. Antony

Kerala HC12 Apr 2018Crl.Rev.Pet/105/2005

Case brief

AI extract

What is this about?

Revision petition by the deceased's son and State appeal against the acquittal of sixteen accused in a murder case arising from a family boundary dispute. Though the High Court found some of the trial court's reasons for discarding the prosecution evidence unsustainable, it held the material insufficient to reverse the acquittal, and dismissed both the revision petition and the appeal.

What the court decided

AI extract

T.J.Shaji Vs Antony — Murder and Culpable Homicide | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940

¶4

Crl.Rev.Pet.No. 105 of 2005

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AGAINST THE JUDGMENT IN SC 225/2001 of ADDL.SESSIONS COURT, NORTH PARAVUR DATED 28-10-2004

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REVISION PETITIONER(S)/DEFACTO COMPLAINANT(SON OF DECEASED):

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T.J.SHAJI, S/O JOSEPH, THANNIKAPPILLY HOUSE, MANJUMMEL P.O., UDYOGAMANDAL, ERNAKULAM DISTRICT.

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BY ADVS.SRI.P.VIJAYA BHANU

¶9

SRI.P.M.RAFIQ

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RESPONDENT(S)/ACCUSED AND STATE;:

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ANTONY, S/O VARGHESE, VELASSERI, MANJUMMAL, ELOOR.

¶12

SEBASTIAN, S/O.VARGHESE, VEMBILLY ROAD, MANJUMMAL, ELOOR.

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CLEATUS, S/O.VARUTHU, VELASSERY, MANJUMMAL,ELOOR.

¶14

TITUS, S/O.JOSEPH, VELASSERY VEEDU, MANJUMMAL, ELOOR.

¶15

BIJU, S/O.JOSEPH, VELASSERY VEEDU, MADAPPATUBHAGAM, MANJUMMAL, ELOOR.

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JEROME, S/O.JOSEPH, MADATHIPARAMBIL, MANJUMMAL, ELOOR. 7. ANTONY, S/O.VARGHESE, MADATHIPARAMBU, MANJUMMAL, ELOOR. 8. SAIMON, S/O.VARGHESE, MADATHIPARAMBU, MANJUMMAL, ELOOR. 9. STEPHEN, S/O.VARGHESE, MADATHIPARAMBIL, MANJUMMAL, ELOOR. 10. ANIL @ KUTTAN, S/O.SAHADEVAN, MALIYIL, MANJUMMAL, ELOOR. 11. BACHAN, S/O.KURIAN, AMBALATHUPARAMBIL, MANJUMMAL, ELOOR.

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CRL.R.P.NO.105/2005

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-2-

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KUNCHAN @ ANOOP, S/O.SAHADEVAN, MALIYIL, MANJUMMAL, ELOOR. 13. SUNIL, S/O.SANKARAN, MATHENAPARAMBU VEED MANJUMMAL. ELOOR. 14. SAJU, S/O.OUSEPH, MANAVALA VEEDU, MANJUMMAL, ELOOR. 15. VINOD, S/O.VELAYUDHAN, THANAPPILLY VEEDU, MANJUMMAL, ELOOR. 16. SREEKUMAR, S/O.RAVI, X-60, F.A.C.T. QUARTERS, MANJUMMAL. 17. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. R1 TO 10,R12 TO 14 BY ADV. SRI.A.MOHAMMED R1 TO 10,R12 TO 14 BY ADV. SMT.SOUMINI JAMES R11,R 15 AND R16 BY ADV. SRI.V.B.UNNIRAJ R11,R15 BY ADV. SMT.R.S.GEETHA R11,R15 BY ADV. SMT.P.ANITHA BY ADV. SR PUBLIC PROSECUTOR SRI.S.U.NAZAR

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15-01-2018, ALONG WITH CRL.APPEAL NO.769/12, THE COURT ON 12-04-2018 DELIVERED THE FOLLOWING:

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A.M. SHAFFIQUE & P.SOMARAJAN, JJ.

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========================== Crl.R.P.No.105 of 2005 &

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Crl.Appeal No. 769 of 2012

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====================

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Dated this, the 12^th day of April, 2018

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J U D G M E N T

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Shaffique, J.

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Crl.R.P. has been filed by the defacto complainant, the son of the deceased challenging the acquittal of the accused in SC No.225/2001 of the Additional Sessions Court, North Paravur. The State has also preferred an appeal against the very same judgment by which the accused was acquitted as Crl.Appeal No.769/12. A petition to condone delay filed by the State happened to be allowed only on 14/6/2012 and thereafter the appeal was admitted on file.

¶29

The prosecution case was that there was a boundary dispute between the families of CW1 and accused Nos. 4 and 5. The accused 4, 5 and 10 along with the other accused formed themselves into an unlawful assembly and with a common intention of committing murder of Raju @ Shaji and his family members, came near the ground where certain entertainments were going on.

¶30

Crl.R.P.No.105 of 2005 &

¶31

Crl.Appeal No. 769 of 2012

¶32

-:2:-

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This incident occurred on 18/5/1998 at 9.15 p.m. The accused came in a tempo van KEK 8186. All of them were armed with deadly weapons like swords, iron bars, wooden sticks etc. Prosecution alleges that the 5^th accused hit CW3 Jaison @ Sebastian on his face with an iron rod. The first accused hit Johnson with an iron steel rod on his head. When accused 4 and 6 approached Shaji with swords, he ran away from the ground towards his house. All the 16 accused chased him and trespassed into the courtyard of the house of Shaji. They could not get Shaji. So they damaged the bullet motorcycle kept in the courtyard. Joseph, father of Shaji came out of the house and tried to prevent the accused from damaging the motor cycle. At the time the first accused inflicted a hit on the head of Joseph with an iron rod and 6^th accused hit Joseph on his neck with an 'idikkatta'. On seeing the incident, Joseph's wife Victoria came to the rescue of her husband. She was pushed aside by the accused Jerome and it is alleged that Biju kicked her on her belly. Joseph ran away from the scene and accused Nos.1, 2, 6, 10 and 12 followed him. It is alleged that Joseph was assaulted with the weapons at a place on the eastern bank of Manjummel river. Joseph died on account of

¶34

Crl.R.P.No.105 of 2005 &

¶35

Crl.Appeal No. 769 of 2012

¶36

-:3:-

¶37

the injuries sustained by him.

¶38

The First Information Statement was given by PW1 Raju @ Shaji at 8 a.m on 19/5/1998. His statement was recorded by

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Sub Inspector of Police and Crime No.31/1998 was registered. Investigation was undertaken by the Circle Inspector of Police. He conducted inquest of the body. The dress found on the dead body and other material objects were collected from the scene of occurrence. The body was sent for postmortem examination. The District Police Surgeon conducted postmortem and opined that the cause of death was due to the injury sustained by hitting with weapons. The accused were arrested and as per their disclosure statement, material objects were recovered and final report was filed before the Judicial Magistrate of First Class, North Paravur. After completing the committal formalities, the matter was made over the Sessions Court Ernakulam. PWs 1 to 26 were examined and Exts.P1 to P22(a) and (b) were marked. Material objects produced and proved were MOs 1 to 11. Two witnesses were examined on behalf of the defence and they have marked Exts.D1 to D8 of which Exts.D1 to D5 are portions of the case diary statements of prosecution witnesses.

¶40

Crl.R.P.No.105 of 2005

¶41

¶42

Crl.Appeal No. 769 of 2012

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-:4:-

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The learned Public Prosecutor on behalf of the appellant argued that there was sufficient evidence to prove the guilt of the accused and Court below had erroneously acquitted them without considering any evidence in the proper perspective. Same contention is also urged on behalf of the counsel appearing for the revision petitioner.

¶45

Before proceeding further, it would be useful to understand the manner in which the accused were acquitted by the trial court. After evaluating the evidence adduced on either side, the court below found that though all the accused especially accused 1 to 6 were known to the witnesses, PWs 2, 3 and 4 did not mention to the Doctor as to who were the assailants. They had only stated that injury was caused by persons whom they could identify. It is further found that PW9 an independent witness did not support the prosecution case and hence it has to be held that the prosecution has failed to prove the case against the accused of having assaulted PWs2 to 4. With reference to the incident that had occurred in the courtyard of the deceased, court below found that there was no evidence to prove that the motor cycle was damaged in any manner and that apart, PW1 has not

¶46

Crl.R.P.No.105 of 2005 &

¶47

Crl.Appeal No. 769 of 2012

¶48

-:5:-

¶49

stated anything about an incident that occurred on the previous day in the FI statement Ext.P1. Court below also found that the cause of death of Joseph was injury No.24 which is alleged to have been inflicted by the 6^th accused and PW1 did not depose that he saw Joseph being hit by 6^th accused with an idikkatta on his neck. That apart, though specific overt acts were attributed to accused 4, 5, 6, 7 ad 10, none of the prosecution witnesses had deposed regarding the incident that took place at the bank of Manjummel river. PW2 alone have deposed to have seen Joseph being hit by neck by Jerome which by itself is not sufficient to hold that Jerome (A6) had committed the overt act. PW21 Doctor had deposed that if a person suffers injury as stated in injury No.24, he would have fell unconscious and would have died instantaneously whereas evidence of PWs 1 and 2 indicates that after being attacked, Joseph ran towards north. Court below therefore held that there was no evidence to show as to how Joseph sustained injury No.24. It is further observed that PW1 reported that his father was missing the next day morning. But, he did not state anything regarding the incident that took place on the previous day. Sub Inspector of Police, PW24 had recorded the FI statement Ext.P1 on

¶50

Crl.R.P.No.105 of 2005 &

¶51

Crl.Appeal No. 769 of 2012

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-:6:-

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19/5/1998 at 8 am. The FIS reached the learned Magistrate only on 20/5/1998. Court below held that there was no explanation for the delay of more than 24 hours in sending the FIR to court. The explanation offered that it was entrusted to a Constable and he delivered it only next day morning was not satisfactory. None of the prosecution witnesses have supported the recovery of material objects alleged to have been used by the accused. Court below also held that evidence of DWs 1 and 2 proves that the accused also sustained injuries which were serious in nature. Exts.D6 and D7 are the wound certificates which would show that the injuries were very serious and no attempt had been made to explain those injuries. Death of Joseph was on account of the injury sustained by him on his neck. But there is no evidence regarding infliction of injury by any of accused persons. The court below therefore found that accused has to be given the benefit of doubt.

¶54

In order to overturn the finding regarding absence of guilt by the trial court whereby the trial court had given the benefit of doubt to accused, while considering an appeal and a revision filed by the defacto complainant, necessarily, this Court

¶55

Crl.R.P.No.105 of 2005 &

¶56

Crl.Appeal No. 769 of 2012

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-:7:-

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has to keep in mind that only in exceptional circumstances, an order of acquittal may be set aside. Jurisdiction can be exercised either at the instance of private parties or when the State had preferred the appeal when there is glaring defect in the conduct of trial which has materially affected the trial or caused prejudice to the victim. In Ashok Rai v. State of U.P. [(2014) 5 SCC 713, the Apex Court held that in an appeal against acquittal, the appellate court has to be very cautious while reversing the order of acquittal since the order of acquittal strengthens the presumption of innocence of the accused. If the view taken by the trial court is a reasonably possible view, it should not be disturbed simply because the appellate court feels that some other view is possible. Only if the judgment of the trial court is perverse with gross errors of facts and law, it has to be set aside to prevent miscarriage of justice. The reason behind is that the court has to give due weight to the presumption of innocence of the accused and see that an innocent person is not convicted whereas it is equally the duty of the Court to see that the guilty do not escape punishment. In Kanhaiya Lal v. State of Rajasthan [(2013) 5 SCC 655], the Apex Court held that the preponderance of judicial

¶59

Crl.R.P.No.105 of 2005 &

¶60

Crl.Appeal No. 769 of 2012

¶61

-:8:-

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opinion is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal, the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified and if the view adopted by the Trial Court is a reasonable one and the conclusion reached are based on materials on record, the acquittal may not be interfered with.

¶63

In the case on hand, the arguments on behalf of the Public Prosecutor and the revision petitioner is based on the oral testimony of PW1 and 2. Ext.P1 is recorded at 8 a.m on 19/5/1998 and as per the endorsement, it has reached the learned Magistrate at 10.30 am on 20/5/1998. Ext.P1(a) is the FIR which indicates the aforesaid endorsement. FI statement was given by PW1. It is stated that he is giving the statement with reference to the murder of his father Joseph by Antony and others. The assailants have also inflicted injury on his mother, brother Jaison and father's brother Johnson. According to him, at 8 p.m, when he came back from work and proceeded from his house for the annual day function in connection with a nearby

¶64

Crl.R.P.No.105 of 2005 &

¶65

Crl.Appeal No. 769 of 2012

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-:9:-

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club viz., Roopakala Arts Club, along with him, his elder brother Stephen, younger brother Jaison Nickson and father's brother Johnson were also there. While they were watching the entertainment programmes, at about 9.00 p.m, the aforesaid Antony, Sebastian, Cleetus, Titus, Biju @ Pius, Jerome, Antony, his brothers Simon, Stephen Kuttan, Bechan, Kunjan, Sunil and three other persons whom he could identify came in a tempo van bearing Regn.No.KEK 8186. Most of them had weapons like sword, iron rod, chopper etc. On seeing them, his friend Unni asked them not to create any problem. At that time Biju informed him that they have a previous enmity with them and they have come to have a fight with them. Biju inflicted a blow with the iron rod on Jaison's face and he started bleeding. At that time, Antony inflicted a blow with an iron rod in the head of Johnson. He also started bleeding. Jerome and Titus came towards PW1. Immediately PW1 and his brother ran towards North. PW1 went to his house and his brother went to his uncle's house. At that time, only his father, mother and grand mother were there in the house. When he reached the house, all of them came in the tempo and parked their vehicle on the eastern side. They all came

¶68

Crl.R.P.No.105 of 2005 &

¶69

Crl.Appeal No. 769 of 2012

¶70

-:10:-

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to the courtyard. On seeing them, PW1 went out and hid among the plantain garden on the northern side of the house. They came and immediately started damaging the motorcycle. The headlight and brake light were broken. On hearing the noise, his father came out to the courtyard. At that time, Antony inflicted a blow with an iron rod on the head of his father. On seeing this, mother came and pleaded them not to attack him. Somebody pushed mother aside and after getting the beating, father ran towards north. Behind him ran Sebastian, Antony and Jerome along with their weapons. Mother ran towards the house of uncle. PW1 saw this incident while hiding among the plantain. At that time, Titus saw PW1 and called on the others. On hearing this, PW1 ran towards south to his uncle's house. He informed his uncle about the incident. After midnight, all of them went in search of their father. He was not seen. They thought that his father would have escaped. In the morning also, they could not locate his father. The matter was informed to the police. A Constable came to enquire. The police officer saw father lying dead near the river. He further stated that his family members and the members of Velassery family were having disputes for more than three years.

¶72

Crl.R.P.No.105 of 2005 &

¶73

Crl.Appeal No. 769 of 2012

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-:11:-

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He also mentioned that on the previous day, there was an issue between Jaison and Kuttan. While being examined as PW1, he reiterated the aforesaid facts and stated that when the gang was damaging the motorcycle, his father came out and immediately Antony (first accused) inflicted a blow on the head of his father with an iron rod. When Jerome hit him, mother interfered. Mother was pushed aside. Father ran towards north and behind him ran Antony, Sebastian, Cleetus, Titus, Jerome, Madathiparambil Antony etc. He further deposed that when he had given a man missing case, police came to the site and located the dead body of his father. Thereafter he had given Ext.P1 statement. One of the main reasons for the court below to have acquitted the accused is the absence of explanation as to how injury No.24 was caused to the deceased. Apparently, after PW1's father ran towards north, and some of the assailants ran behind him, his father was not seen. PW1 along with his relatives had conducted a search during night. His father's body was found out only by the police the next day morning. What happened to his father after he ran away is not known. His body was found with several injuries of which the fatal injury was injury No.24. In PW1's

¶76

Crl.R.P.No.105 of 2005 &

¶77

Crl.Appeal No. 769 of 2012

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-:12:-

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evidence, it is stated that Antony had inflicted a blow on his father with an iron rod on his head and Jerome had hit him. No one has seen the overt act of any person inflicting injury No.24 on the deceased. Court below observed that PW1 had not stated in Ext.P1 statement that Jerome had hit his father. PW1 deposed that he had not seen his father being hit by Jerome. In his evidence, he further states that the distance between the river and his house was only 15 ft. If his father was running towards back of the house, he would have searched near the river also. Ext.D1 is a contradiction with reference to a statement given by

¶80

PW1 on 23/6/1998. The statement was that “അപൻ തലകട�ക��ണ വ�ട�ന പറകവശ � ��ക�ട� ��യ�". According to PW1, he saw his father running towards north.

¶81

PW2 is the wife of deceased and mother of PW1. According to her, Sebastian was damaging the motorcycle. Accused 3 to 5 were along with him. When her husband tried to interfere, 1^st accused Antony hit him on his head with an iron rod. Jerome had hit her husband on his neck with a black thing. When she tried to interfere, Jerome pushed her away and Biju hit on her

¶82

Crl.R.P.No.105 of 2005 &

¶83

Crl.Appeal No. 769 of 2012

¶84

-:13:-

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stomach. Her husband ran towards north and the accused ran behind him. Ext.D2 is a contradiction with reference to an earlier statement. In her evidence, she stated that her husband got hit with an iron rod having ridges. While being cross examined, the contradiction that was marked was that he was hit with an iron rod. Ext.D2 is the contradiction.

¶86

Other than PW1 and 2, there is no eye witness to the incident by which deceased got injured. In the postmortem certificate, the Doctor has noticed 24 ante-mortem injuries out of which injury No.24, according to the Doctor is sufficient in the ordinary course of nature to cause death as it is the area through with vagus nerve passes. He has further observed that the victim showed evidence of coronary heart disease. The trauma and emotional tension may cause myocardial infraction. Since the body was recovered from water, possibility of drowning has to be ruled out. The final opinion was reserved pending chemical examination report. Based on the chemical examination report, he confirmed that there was no evidence of drowning and coronary heart disease with multiple injuries on the body could contribute to cause of death. He also identified and marked

¶87

Crl.R.P.No.105 of 2005 &

¶88

Crl.Appeal No. 769 of 2012

¶89

-:14:-

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Exts.P17 and P17(a) final report. According to him, injury Nos. 4 to 8, 10, 11, 15, 17, 21 and 22 were abrasions which could be caused by contact with a rough surface or object and injury No.24 is in an important area because two structures are there. One is vagus nerve which controls heart beat and the other carotic bodies which regulates blood pressure of individual. It is stated that an injury in that area can cause instantaneous death or the victim may become unconscious. He stated that a forceful hit with MO4 may cause such an injury. He further stated that injury nos. 2, 3, 9, 12, 13, 14, 19 and 20 could be caused by a blunt weapon and injury No.18 could be caused by MO5. In cross examination he stated that all the abrasions are small ones and it is only a minor injury that any person can sustain. From the evidence of PW21, the Doctor and on a perusal of the certificates, it becomes rather clear that the cause of death was injury No.24 or it might be on account of heart disease or the shock the deceased suffered would have contributed to the cause of death. It is true that PW1 and 2 have seen two blows being inflicted on the accused. But, there is no proof to indicate that those two injures were the cause of death. Deceased ran towards north and

¶91

Crl.R.P.No.105 of 2005 &

¶92

Crl.Appeal No. 769 of 2012

¶93

-:15:-

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some of the accused followed him. Thereafter, his dead body is found the next day morning at about 7 am and that too by the police. Though the members of the family searched him on the previous night, they could not locate him. Such being the facts, when the trial court had expressed some doubt regarding the possibility of the cause of death, and the discrepancies that had occurred in the investigation process, should this Court in exercise of the appellate power take a different view.

¶95

Of course, in an instance where a gang of persons came and attacked the members of a family and when two witnesses state that some of the accused had followed the deceased, and thereafter his dead body is found, it can as well be inferred that the assailants were responsible for the cause of death. But, as rightly pointed out by the trial court, there had been an attempt to conceal some facts especially the injury sustained by the accused. DW1 and DW2 were examined. DW1 is Dr.Harikumar who was the Casualty Medical Officer of Medical Trust Hospital. He deposed that, on 18/5/1998 at 10.35 p.m., he examined Sebastian V.V. (2^nd accused). He suffered an incised wound on the right elbow 3 x 0.5 cm, incised wound on the pulp of left right

¶96

Crl.R.P.No.105 of 2005 &

¶97

Crl.Appeal No. 769 of 2012

¶98

-:16:-

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finger 1x0.2cm, clinically fracture of olecranol, incised wound medial to the left axilla 3x0.5cms and the attack was by four persons viz., Raju, Joseph, Jaison and Nixon at Manjummel on 18/5/1998 at 9.30 pm. He was discharged on 27/5/1998. Injuries were caused by a sharp edged object like knife. Ex.D6 is the wound certificate. On the same day, he examined Sunil M.S. (Accused NO.13). He also suffered 3 injuries. Allegation is that he was stabbed by Joseph using a knife. He was also discharged on 27/5/1998. Ext.D7 is the wound certificate. In cross examination, Doctor stated that except item No.3, all other injuries are minor and the alleged cause of injury was stated by the patient themselves.

¶100

DW2 is Dr.K.Narayanan, Senior Medical Officer, FACT, JNM Hospital. He had treated Anilkumar (Accused No.10) at 10.15 pm on 18/5/1998. Ext.D8 is the wound certificate. He had contusion with abrasion on the outer aspect of left side forehead 4 cms in circumference, lacerated wound on the left side of forehead just below the first injury. It is stated that suturing was done, first aid was given and he was referred to Government Hospital, Aluva on the same day. Apparently the injuries were all

¶101

Crl.R.P.No.105 of 2005 &

¶102

Crl.Appeal No. 769 of 2012

¶103

-:17:-

¶104

minor in nature and was not fatal. Therefore non explanation of such injuries would not have affected the prosecution case. This finding of the court below, according to us, was not justifiable enough to discard the evidence adduced by the prosecution.

¶105

Yet another aspect which was taken note of by the court below was the statement given by Pws 2, 3 and 4 to the Doctor who had treated them. Exts.P22, P22(a) and P22(b) are the wound certificates. Nothing has been stated regarding the involvement of any of the accused. No specific mention was made regarding their names though they were known. The injury sustained on PW2, PW3 and PW4 were not very fatal and probably that is the reason why they did not want to mention about the assailants. This cannot be a factor to discard the other evidence. It could be seen that Victoria was seen by the Doctor at 11 pm. Therefore the incident had happened just as spoken to by PW1 himself. The fact that the names of the accused were not mentioned in Ext.P22 series by itself cannot be a reason to discard the evidence of PW1 and PW2.

¶106

Now coming to the recovery of the weapons, the court below had observed that none of the witnesses who had signed

¶107

Crl.R.P.No.105 of 2005 &

¶108

Crl.Appeal No. 769 of 2012

¶109

-:18:-

¶110

the mahazar had supported the prosecution. If the court below had not expressed confidence in the evidence given by the investigating officer and the official witnesses as proof of recovery, it may not be possible for this court to take a different view altogether.

¶111

The learned Public Prosecutor placed reliance upon the following judgments.

¶112

(i) Harekrishna Singh v. State of Bihar [(1988) 2 SCC 95].

¶113

This judgment was cited to emphasise the point that though the burden of proving the guilt of the accused beyond reasonable doubt is on the prosecution, it is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence, prosecution has to explain the injuries and failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence. It is held that when the prosecution comes with a definite case that the offence has been committed by the accused and proves the case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances

¶114

Crl.R.P.No.105 of 2005 &

¶115

Crl.Appeal No. 769 of 2012

¶116

-:19:-

¶117

injuries have been inflicted on the person of the accused.

¶118

(ii) Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259].

¶119

This judgment is cited to emphasise the point that while appreciating evidence, if the eye witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities cannot be expected as conclusive. The evidence given by eye witnesses requires careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of other evidence, including medical evidence, as the sole touchstone for test of such credibility. It was therefore held that where there is contradiction between medical and ocular evidence, ocular testimony of witness has greater evidentiary value vis-a-vis medical evidence. Only when medical evidence makes ocular testimony improbable, it becomes a relevant factor in the process of evaluation of evidence. Ocular evidence can be disbelieved only when the medical evidence goes so far that it completely rules out all possibilities of ocular evidence being true. When very large number of assailants were attackers, witnesses are not able to state as to how many injuries

¶120

Crl.R.P.No.105 of 2005 &

¶121

Crl.Appeal No. 769 of 2012

¶122

-:20:-

¶123

were there and in what manner the same were caused by accused. Discrepancy in medical evidence and ocular evidence is bound to occur. However, the court will have to consider the matter in the proper perspective and merely because there is discrepancy, it cannot tilt the balance in favour of the accused.

¶124

(iii) Dayal Singh v. State of Uttaranchal (AIR 2012 SC 3046).

¶125

In this case while considering the scope of expert evidence, the Apex Court held that normally the Courts look at expert evidence with a greater sense of acceptability, however, the Courts are not absolutely guided by the report of the experts. When the eyewitness account is found credible and trustworthy, medical evidence pointing to alternate possibilities may not be accepted as conclusive. The expert witness is expected to put before court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion. Once the expert opinion is accepted, it is not the opinion of the

¶126

Crl.R.P.No.105 of 2005 &

¶127

Crl.Appeal No. 769 of 2012

¶128

-:21:-

¶129

medical officer but that of the Court .

¶130

(iv) In Ram Bali v. State of U.P. [(2004) 10 SCC 598] also, the Apex Court had occasion to consider the relevance of medical evidence which is contrary to ocular evidence. It was held that only when the ocular evidence is wholly inconsistent with the medical evidence, the Court has to consider the effect thereof. Referring to judgment in Pattipati Venkaiah v. State of A.P. [(1985) 4 SCC 80], it was observed that that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. Still further, after referring to various judgments of the Apex Court viz. Ram Bihari Yadav v. State of Bihar [(1988) 4 SCC 517, which was reiterated in Amar Singh v. Balwinder Singh [(2003) 2 SCC 518], it was held that when the direct testimony of eye witnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the investigating officer cannot affect the credibility of the prosecution version.

¶131

Learned counsel for the revision petitioner placed

¶132

Crl.R.P.No.105 of 2005 &

¶133

Crl.Appeal No. 769 of 2012

¶134

-:22:-

¶135

reliance upon the following judgments:

¶136

(i) State of Haryana v. Shakuntla and others [(2012) 5 SCC 171].

¶137

In this case, Apex Court held that merely for the reason that witnesses are relatives, if their evidence is found to be trustworthy, there is no reason to discard their credible and sufficiently corroborated testimony. It was held that it is the quality and not quantity of evidence that is relevant for conviction.

¶138

(ii) Bhagwan Jagannath Markad v. State of Maharashtra [(2016) 10 SCC 537].

¶139

In this case, the Apex Court had occassion to consider various propositions with reference to appreciation of evidence. The Apex Court held that while appreciating evidence of a witness, the Court has to assess whether the evidence read as a whole is truthful or not. While doing so, court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies which do not touch the core of the case are not enough to reject the evidence as a whole. It is observed that no true witness can

¶140

Crl.R.P.No.105 of 2005 &

¶141

Crl.Appeal No. 769 of 2012

¶142

-:23:-

¶143

escape from giving such discrepant details. Only when discrepancies are so imcompatible as to affect the credibility of the version of a witness, the Court may reject evidence. Yet another aspect dealt with by the Apex Court was with reference to Sections 141 and 149. It was held that an offence committed in prosecution of common object of an unlawful assembly by one person renders members of unlawful assembly sharing the common object vicariously liable for the offence. Common object has to be gathered from the acts and language of the members of the assembly and all the surrounding circumstances. It can be gathered from the course of conduct of the members as well. Sharing of common object is a mental attitude which is to be gathered from the act of a person and the result thereof. No hard and fast rule can be laid down as to when common object can be inferred. Yet another point decided was regarding non explanation of injuries on the accused. It was held that non explanation of injury on the accused by itself is not enough to reject the prosecution version. The Apex Court had also dealt with the powers of an appellate court while considering an appeal against acquittal. The principles thereof have been summarized at

¶144

Crl.R.P.No.105 of 2005 &

¶145

Crl.Appeal No. 769 of 2012

¶146

-:24:-

¶147

paragraphs 29 and 30 which read as under:-

¶148

“29. The learned counsel for the appellants also criticised the judgment of the High Court by submitting that the principles laid down by this Court in Padam Singh, Devatha Venkataswamy, Narendra Singh, Prasanna Das, Majjal, Lalita Kumari and Baby for exercise of appellate jurisdiction have not been followed. The appellate court should deal with reasons for acquittal and interfere only if acquittal is perverse. There is no doubt about the proposition that the appellate court has to arrive at an independent conclusion about the credibility of the evidence and to reappreciate the evidence to arrive at a just conclusion. If the appellate court is to reverse the judgment of the trial court, the reasoning of the trial court has to be adverted to and reversal of acquittal is permissible only if the view of the trial court is not only erroneous but also unreasonable and perverse. At the same time, the appellate court has full power to review the evidence and to reach at its own conclusion. The appellate court can set aside the acquittal if the acquittal is not justified. Of course, the appellate court has to consider the fact that the trial court has the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the acquittal. If two reasonable conclusions can be reached, the appellate court should not disturb the finding of the trial court. In the present case, the High Court has followed the above principles.

¶149

30. In Bava Hajee Hamsa while approving the reversal of acquittal by the High Court, it was held that erroneous approach of the trial court led to misdirection in appraising

¶150

Crl.R.P.No.105 of 2005 &

¶151

Crl.Appeal No. 769 of 2012

¶152

-:25:-

¶153

the evidence and the High Court was justified in rejecting the approach of the trial court and in analysing the evidence in its own way. This Court observed: (SCC pp. 487-88, para 30)

¶154

“30. We agree with the High Court that the very “scheme of approach” adopted by the trial Judge was faulty and misleading. It led to aberration and misdirection in appraising evidence, and vitiated his conclusions. The learned trial Judge started correctly when on a broad look of the evidence, he found the evidence of PWs 1, 8 and 9 prima facie acceptable. But after the second lap of discussion, he became sceptical; and reversed his mind at the end of the third round of circumgyratory discussion. In such cases where large number of persons are involved and in the commotion some persons cause injuries to others and the evidence is of a partisan character, it is often safer for the Judge of fact to be guided by the compass of probabilities along the rock-ribbed contours of the case converging on the heart of the matter. Once the court goes astray from the basic features of the case, it is apt to lose itself in the labyrinths of immaterial details, desultory discussion and vacillation arising from unfounded suspicions. This is exactly what has happened in the instant case. Despite the pains taken and the conscientious effort put in to write an elaborate judgment, the trial Judge had, as it were, missed the wood for the trees. The learned Judges of the High Court were, therefore, right in discarding altogether the basically wrong “scheme of approach” adopted by the trial court, and in analysing the evidence in their own way.”

¶155

Crl.R.P.No.105 of 2005 &

¶156

Crl.Appeal No. 769 of 2012

¶157

-:26:-

¶158

(iii) State of Rajasthan v. Teja Ram and others [(1999)

¶159

3 SCC 507].

¶160

This judgment has been cited by the learned counsel to emphasise the evidentiary value of witnesses who are related to each other. It is held that there is no natural witnesses when the incident happens in a dwelling house in which event insistence on other evidence is not proper. Paragraph 20 is relevant, which reads as under:-

¶161

“20. Another reason which the High Court advanced to repel the testimony of such a good number of probable witnesses is that they are all close relatives of the deceased and that independent witnesses were not examined by the prosecution. The over-insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happens in a dwelling house, the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against non-examination of such a person as a prosecution witness. Otherwise, merely on surmises the court should not castigate the prosecution

¶162

Crl.R.P.No.105 of 2005 &

¶163

Crl.Appeal No. 769 of 2012

¶164

-:27:-

¶165

for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also.”

¶166

Learned counsel for the accused placed reliance on a recent judgment of the Apex Court in Issac @ Kishor v. Ronald Cheriyan and Others [ILR 2018 (1) Ker 668]. This judgment had been cited to indicate that in an appeal against acquittal, only in exceptional circumstances the High Court may set aside the order of acquittal and convert the same to conviction. If there is glaring defect in the conduct of trial which has materially affected the trial or caused prejudice, it is appropriate that the matter is remitted back for a retrial. Retrial cannot be ordered when there is a mere irregularity or where it does not cause any prejudice. In the cited case, the Apex Court directed retrial with certain directions and the Apex Court did not interfere with the said findings.

¶167

There is no doubt about the principles laid down by the Apex Court in the judgments aforecited. Primarily, we will have to consider whether there is any perversity or illegality in the

¶168

Crl.R.P.No.105 of 2005 &

¶169

Crl.Appeal No. 769 of 2012

¶170

-:28:-

¶171

judgment of the Trial Court warranting interference in an appeal against acquittal. The crucial aspect involved in the present case is regarding the cause of death of Joseph and who has committed the said act. Medical evidence adduced in the case would show that Joseph suffered several injuries of which the fatal injury was injury No.24. The fact that certain persons including the accused followed him is proved by the oral testimony of PW1 and PW2. But thereafter what happened to him is not in evidence. PW1 testified that he along with others had gone in search of his father on the same day as well as the next day morning and thereafter he had filed a complaint before the police and it is the police officer who accompanied him who came across the dead body near the river. As to what happened to Joseph after he was followed by the accused is not evident. Further some of the accused had even suffered some injuries. We had already taken note of the fact that certain findings of the Court below was not correct to discard the evidence adduced by the prosecution. But, on an overall consideration of the entire evidence which is forthcoming in the case and the finding of the Court below, we are of the view that the materials now available are not sufficient

¶172

Crl.R.P.No.105 of 2005 & Crl.Appeal No. 769 of 2012

¶173

-:29:-

¶174

enough to reverse the finding of acquittal.

¶175

In the above circumstances, the revision petition and the

¶176

appeal stands dismissed.

¶177

Sd/-

¶178

A.M. SHAFFIQUE, JUDGE

¶179

Sd/-

¶180

P.SOMARAJAN, JUDGE

¶181

¶182

//True Copy//

¶183

PS to Judge

T.J.Shaji v. Antony

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T.J.Shaji v. Antony

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