STATE Vs. V K RAJAN VARGHESE

JUDGEMENT

(1.) THIS appeal which has been preferred by the State of Karnataka assails an order of acquittal recorded in favour of original accused nos. 1 to 3 in Sessions Case No. 22 of 1992 disposed of by the learned Sessions Judge, Dakshina Kannada, by Judgment and Order dated 29. 11. 1993. The incident in question had taken place on the evening of 7. 11. 1991 at about 5. 30 p. m. on Kolla-Maderi Main Road at a place called Koppa in Nelyadi Village of Puttur Taluk. The deceased is one T. G Jose and it is alleged that on the previous day an altercation had taken place between A-3 and the deceased in connection with some timber business. It is not very clear as to what the nature of the quarrel was and we can only assume from the limited references that either it was with regard to some sharing of profits or that the deceased Jose had fallen out with the A-3 and he either did not want to continue with the business or the last possibility and probably the last plausible one is that there are references to some case having been booked against the accused persons by the Forest Department from the evidence of P. W. 18 who is the Assistant Conservator of Forest; the usual possibility of a-3 having believed that the prosecution had emanated because of the deceased. However, at the end of that altercation A-3 is supposed to have threatened to finish off the deceased within two days and to also bum his house. It is clear therefore that the quarrel had a serious basis. On the evening of 7. 11. 1991, the deceased informed his wife that he is going to purchase some groceries and he made his way to the shop of P. W. 5 where he purchased some salt. He was accompanied by P. W. 2-Chacko and the two of them were supposed to have been returning at which time, the three accused confronted them. A-2 is supposed to have taken a towel and swung it around jose and thereby restrained him from running away where upon A-1 inflicted a series of knife injuries on the deceased. The majority of these injuries are located on the back and one of them is close to the neck near the shoulder. The deceased Jose is supposed to 'have called out to his wife who is P. W. 1-Molly when the assault started. P. W. 2 states that when he tried to intervene that he was threatened and that therefore there was nothing that he could do. In the mean while, it is the case of P. W. 1-Molly who is the wife of the deceased that she had taken her two children to the tank which is nearby to the road and the place where the incident took place and that the moment she heard the cry of her husband, that she rushed to the scene. She claims that she had seen A-2 restraining Jose by holding on to him through the means of the towel and that She had also seen A-1 inflicting knife injuries to her husband. According to her, she screamed for help and at the same time sat down close to where the incident took place as she had felt dizzy. She states that her brother P. W. 4 ran to the spot and revived her. No specific role is attributed to A-3 apart from the fact that it is alleged that he was present. The accused are supposed to have gone away from that spot after the assault. According to the witnesses, Jose tries to walk a few steps and that he collapsed and died in no time. Thereafter, a message is supposed to have been relayed to the brother P. W. 9 by the name of Mathew Kutti who is a doctor having his dispensary at puttur and after his arrival, the wife-Molly along with two or three other persons proceeded to the Police Station at Uppinangadi and the complaint was lodged at about 1 A. M. that night. There is some controversy with regard to the Police coming to the village at about 3. 30 A. M. or whether they only came in the morning which we shall deal with. The inquest was held in the morning after which the investigation commenced and it is alleged by the Investigating Officer that in the course of the investigation, A-1 and 3 made certain statements pursuant to which A-1 produced two blood-stained lungies from his house and A-3 produced a blood-stained knife. These were attached under panchanamas but we need to mention that even though they were forwarded to the Chemical Analyser and the reporters are available, there is a letter on record which states that since the material objects were not collected by the investigating authorities within the prescribed time, that the same have been destroyed. The two blood-stained iungies and the knife were therefore not exhibited and the respondents' learned Counsel has advanced certain submissions with regard to the same which we shall deal with at the appropriate stage. The three accused were charge-sheeted and faced the trial and the learned Trial Judge held that essentially, the witnesses were both interested and partisan in so far as they belong to the family or to the group of the deceased and that consequently, the evidence was unacceptable to the Court. The accused were accordingly acquitted and the State has challenged their acquittal through the present appeal. We have heard the learned addl. SPP at length and we have also heard the learned Counsel who represents the respondents-accused both with regard to the factual aspect as also to the legal aspects involved. The evidence has also been very carefully and completely reviewed by us because this is an appeal against acquittal wherein the State has contended that the order of acquittal is unjustified and consequently, we have followed the procedure of first examining as to whether interference would at all be justified and having come to the conclusion that the findings of the learned Trial Judge are unacceptable and unjustified both on facts and in law, we have thereafter appreciated the evidence and recorded our findings.

(2.) THIS being an appeal against acquittal, we shall first deal with the preliminary objection canvassed by the respondents' learned counsel Mr. R. B. Deshpande. He drew our attention to the well settled position in law namely that if the Trial Court has not bypassed or overlooked any material heads of evidence and if the Trial Court which has had the benefit of presiding over the trial and observing the demeanor of the witnesses has rejected the oral evidence after adducing reasons therefore, that merely because another view is possible this Court ought not to interfere with that decision. He has further emphasised the opinion that the law even goes to the extent of holding that in an appeal against acquittal, as long as the original judgment is sustainable or plausible that it is not open to the High court to interfere and substitute better reasoning merely because that procedure may be possible. We fully accept tne correctness of these contentions arid we also need to take cognizance of the fact that the learned Addl. SPP was quick to point out to us that if in a given case the evidence is perfectly acceptable and reliable and if a grave error has occurred in rejecting the evidence that ought not to have been done, that it is a case of miscarriage of justice and in such situations it is incumbent for the appeal Court to review the case and record findings in consonance with the well defined principles of law. He went on to submit that merely because, through a process of reasoning the findings are sought to be justified, that this will not preclude the appeal Court from interfering if it is demonstrated that the decision is palpably wrong. For this purpose, it was necessary for us to commence with a careful examination of the Judgment before going to the evidence which we have done but we need to record that while it is equally true that the High Court will not normally interfere in a case where the findings appear to be correct and reasonable, that It is equally well settled law that where the findings are demonstrated to be absolutely incorrect, that the court has to exercise appellate powers of rectification. A perusal of the Judgment indicates that the solitary ground on which the evidence had been discarded is that the witnesses are interested or in other words related or friendly and that there is no independent evidence available. The learned Trial Judge has bypassed the particularly important aspect of essential credibility and the crucial question as to whether' there was in fact any hostility between the witnesses and the accused that is good enough or strong enough to impell them to falsely implicate the accused. Also, the very important angle of law namely that merely because witnesses are relations or friends whether ipso facto their evidence could be discarded on that ground or whether as is the law, such evidence is required to be doubly scrutinised that a higher degree of caution is exercised while dealing with it and as a general rule, the Court would look to corroboration or supportive evidence. It is because of the erroneous approach of the Trial Court that we are required to embark upon a total reevaluation of the record which has been done. Having regard to this position, the preliminary objection to the effect that this is not a case in which interference is called for necessarily fails.

(3.) THE learned Addi. SPP has taken us through the evidence of P. W. 1- Molly. Briefly stated, according to her at about 4. 30 p. m. on the evening of 7. 1. 1991, her husband Jose left the house stating that he was going to the grocery shop and that he left in the company of P. W. 2. Molly took the two small children to the tank which is close to the road for purposes of giving them a bath. According to her, after the children were given a bath and she was returning, she heard the cry of her husband calling out to her where upon she rushed to his assistance. She states that the distance between where she was and the scene of offence was not more than about 120 feet and according to her, she distinctly saw A-2 holding on or holding back Jose by means of the towel which he had secured round Jose and that A-1 was inflicting knife injuries to Jose most of which were on the back, one of which landed close to the neck. According to her, she screamed and sat down because she felt giddy and that after a short while her brother who had arrived at the spot revived her and took her home. She states that only after the arrival of her brother-in-law Manju from Puttur which was late at night because according to her, a message could only be put through at about 10 p. m. that they finally decided to go to the Police Station Molly was accompanied by two or three persons and she mentions that it took them considerable time to reach the Police Station from the village as it is about 18 K. ms. and that her oral complaint was taken down by the Sub-Inspector of Police. The complaint is lodged at about 1. 30 a. m. on that night. She has been cross-examined extensively and the line of cross-examination followed was that having regard to the fact that the tank is located at a level of about 25 to 30 feet lower than the road where the incident took place and further more, since it is at some distance, that even if she heard her name being called out, by the time she could have got to the road, that the incident was over, the assailants had left and that therefore; she is not an eye witness to the incident. Also, her justification with regard to the delay of eight hours between the time when the incident took place and the complaint was registered has been seriously challenged because the defence has sought to putforward the theory that the incident has taken place later that night and that the accused have been involved falsely only because of the incident that took place between A-3 and the deceased on the previous evening. The witness has with-stood the cross-examination and she has stuck to her contention that she was, a witness to the incident. We need to record here that a suggestion was put to P. W. 1 namely that she did not so much as go to the assistance of her husband or even touch the body at any time, which has been admitted by her but the reason given is that she virtually, passed out before she reached the actual spot and that her husband was long since dead by the time she revived. We do find from a total examination of this evidence that the defence has really not been able to either attack her credibility or impute motives or for that matter impeach her veracity even to the least extent. The learned Trial Judge has unfortunately devoted virtually five pages of the Judgment in an elaborate discussion before concluding that having regard to the topography of the place that p. W. 1 could not have seen the incident and there are another two pages of discussion wherein the learned Trial Judge comes to the conclusion that if P. W. 1 was accompanied by the young children, that it is physically impossible for her to have quickly made her way with the children from the tank to that spot. We need to take serious note of these very grave errors committed by the Trial Court because this conjuncture and hypothesis has absolutely no basis in so far as various angles and possibilities which he has examined ad-nausem have no bearing since there is not even any cross-examination along these lines. A perusal of the evidence will indicate that there is no challenge to P. W. 1's contention that she was able to see in so far as nothing has been brought on record to indicate that there was any object or vegetation to obstruct the visibility or for that matter that the line of vision was in any way hampered or that it would. preclude her seeing the incident from where she was and on her way to the spot. In our considered view, the evidence of P. W. 1 is perfectly acceptable.