M A ABDULLA KUNHI Vs. STATE OF KERALA

JUDGEMENT

(1.) Four appellants along with another person B.A. Abbas (accused No. 5) were tried for offences punishable under S. 120-B and S. 302 read with S. 34, I.P.C. Accused No. 1 was tried for offences punishable under S. 341, I.P.C. and accused No. 5 under S. 109, I.P.C. The trial Court acquitted all of them. On an appeal by the State the High Court reversed the acquittal in respect of the four appellants before us and convicted all of them under S. 302 read with S. 34, I.P.C. and sentenced each of them to undergo imprisonment for life. The State appeal in other respects was, however, dismissed. The four convicted appellants have preferred this appeal under S. 2A of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970 read with S. 379, Cr. P.C. It is alleged that accused No. 5 on 4-4-77 at 8 p.m. instigated accused Nos. 2 to 4 to commit the murder of the deceased Abdulkhader and all of them conspired along with the first accused on 5-4-77 at 6.30 p.m. at the Volleyball ground in the paddy field of one Mohammed of Puduvayal, Eruthukadavu and in prosecution of the criminal conspiracy committed the offence. Accused No. 1 wrongfully restrained the deceased preventing him from moving further by catching hold of him through his shoulder, from his back side and accused Nos. 2 to. 4 at the same time and place mentioned above committed the murder of the deceased by cutting him on various parts of the body with choppers. In support of the charge of murder against the appellants, the prosecution relied on the direct testimony of P.Ws.1 to 3.A conspiracy was said to be proved by the evidence of P.Ws. 5 to 8 with which we are not concerned for the purpose of this appeal.

(2.) The learned trial Judge rejected the evidence of these eye-witnesses that page No. W. 1 has not given all the details in Ex. P. 1 the earliest report and that he was enmical to accused No. 5. P.W. 2 was discredited on the ground that he did not assist the deceased who is no other than his brother after the accused left the place and also on the ground that the clothes of P.W. 2 as well as that of P.W. 1 were not stained with blood. P. W. 3 who is the brother-in-law of P.W. 1 did not take part in the game. His evidence was rejected by the trial Court that he was enmical towards accused No. 5 and the evidence of P.W. 4 was rejected because of a discrepancy in respect of part played by accused No. 4. The appellate Court in an elaborate judgment has dealt with all these reasons given by the trial Judge and held that the appreciation of evidence of P.Ws. 1 to 4 by the trial Judge is "palpably wrong and perverse" and that he has misread the material evidence and that he has also used the first information report as substantive evidence. The appellate Court also held that the occurrence took place in broad-day light and within short-time the first information report was lodged at the police station. The appellate Court, however, agreed with the trial Court that the charge of conspiracy and the instigation attributed to accused No. 5 was not established and in that view of the matter confirmed the acquittal of accused No. 5.

(3.) The learned counsel for the appellants submitted that the trial Judge who had the advantage of seeing the demeanour of the witnesses has given sufficient reasons for not going upon their evidence and that in any event the view taken by him on a consideration of the probabilities and the facts and circumstances of the case cannot be said to be unreasonable. He further submitted that at the most it may be said that there were two views possible. In such a situation, the High Court ought not to have interfered in an appeal against acquittal on the ground that a different view was possible.