MARUDANAL AUGUSTI Vs. STATE OF KERALA

JUDGEMENT

(1.) In this appeal under S. 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act the appellant has been convicted under S. 302, I.P. C. and has been sentenced to imprisonment for life by the High Court of Kerala. The accused was tried by the Sessions Judge who after considering the evidence, acquitted the accused of the charges framed against him. Thereafter the State of Kerala filed an appeal to the High Court and the High Court reversed the order of acquittal and sentenced the appellant as indicated above. The facts of the case have been fully detailed in the judgment of the Sessions Court and the High Court and it is not necessary for us to repeat the same all over again. The trial Court appears to have acquitted the appellant on the ground that there were certain infirmities in the investigation conducted by the Police Officer. The manner in which the F. I. R. was lodged, the delay in despatch of the F. I. R. and the delay on the part of P.W. 1 in getting the injuries examined by the Doctor, were features which according to the Sessions Judge were so gravely suspicious that they went to the root of the matter. The High Court on the other hand was not impressed by the reasons given by the trial Court and was of the opinion that there was no reason to disbelieve eye-witnesses P. Ws. 1 to 6 against whom the accused bore no animus. The High Court was of the opinion that there was thus no reason to throw out the prosecution due to the infirmities noticed by the learned Sessions Judge. The High Court, however, seems to have overlooked the fact that in reversing the judgment of acquittal, the Appellate Court has also to keep in mind a very vital consideration, namely, as to whether or not the view taken by the Sessions Judge could be reasonably possible. We have gone through the judgment of the Sessions Judge and the High Court and after hearing the parties we are satisfied that the view taken by the Sessions Judge was, doubtless, reasonably possible. To begin with, the occurrence is said to have taken place on 23-6-1971 at about 6.45 p.m. and F. I. R. was lodged by P.W. 1. Augusti. The Police Station was at a distance of about 20 kilometers from the place of occurrence. The F. I. R. contains graphic details of the entire occurrence and care has been taken not to omit ever the minutest detail. The names of P. Ws. 4, 5 and 6 as having witnessed the assault are not mentioned at all in the F. I. R. Secondly, even though P.Ws. 2 and 3 have been mentioned in the F. I. R. as having given first aid to the deceased along with informant, it is nowhere mentioned that these two witnesses were also present when the deceased was actually assaulted. According to the allegation made in the F. I. R. the attack on deceased was a sudden and short one and was not likely to have been noticed by anybody unless he was actually present there. The most serious infirmity which appears in the case is that although the F. I. R. was lodged on the midnight of 23/24-6-1971 it was despatched to the Sub-Magistrate and received by him at 5-30 A.M. on the 25th of June, 1971 that is to say there was a delay of as many as 29 hours in the receipt of the F. I. R. by the Sub-Magistrate. The Investigating Officer in spite of being questioned on this matter, does not appear to have given any explanation whatsoever for this delay. On the other hand, he admits that the F. I. R. was despatched through express delivery. Indeed, if that was so, the F. I. R. should have reached the Magistrate much earlier. That apart, there are intrinsic circumstances which throw serious doubt on the prosecution case. According to the version given by the informant, he had sustained the injury on his fingers while he was trying to snatch the knife from the appellant. The F. I. R. no doubt mentions that the informant received injuries on his fingers, and despite this fact the informant went to the doctor not on 24-6-1971 but on 25-6-1971 at 9.30 A.M. Although the informant claims that he had gone to the Doctor on 24-6-1971 but the Doctor P. W. 13 categorically states that page No. W. 1 had come to him with injuries only on 25-6-1971 at 9.30 a.m. The Doctor further testifies that the injury was simple one and fresh. This, therefore, completely knocks the bottom out of the prosecution case regarding the circumstances in which the F. I. R. was lodged. If the injury was fresh, then it could not have been sustained during the occurrence and, hence, the story put forward by the informant becomes extremely suspicious. No explanation for any of these doubtful circumstances has been given by the prosecution. There can be no doubt that in these tell-tale circumstances the Sessions Judge was fully justified in entertaining a serious doubt about the truth of the prosecution case. In view of all these facts the view taken by him was doubtless reasonably possible. The High Court, however, relied on another aspect of the matter, viz that as there was no animus between P. Ws. 1 to 6 and the accused, there was no reason to disbelieve them. The High court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the F. I. R. is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence. At any rate we are fully satisfied that the view taken by the Sessions Judge was reasonably possible and, therefore, this was surely not a fit case in which the High Court should have interfered with the order of acquittal of the appellant passed by the learned Sessions Judge. For these reasons, therefore, we allow this appeal, set aside the judgment and order of the High Court and acquit the appellant of the charges framed against him. The appellant shall be released forthwith.