NARAYANAN PUSHKARAN Vs. STATE

JUDGEMENT

(1.) This is an appeal by Narayanan Pushkaran Alias Kuttan the accused in Sessions Case No.58 of 1955 of the Sessions Court of Quilon and is directed against his conviction there under S.302 of the Indian Penal Code and sentence of rigorous imprisonment for life for causing the death of one Neelakantan Damodaran on 1.3.1955 corresponding to 17.7.1130 M.E. The prosecution case is as follows:- The deceased Damodaran and the accused though relatives had been on inimical terms for some time prior to the occurrence. Both of them were residing in Koruvila in Enathimangalam Pakuthy adjoining the Reserve Forest. On 1.3.1955 there was some quarrel between them in connection with the destruction of the tapioca cultivation in the accuseds compound by a cow belonging to the deceased at about 4 p.m. Just after dusk on that day the accused and Pw. 3 Kochucherukkan went for a bath in an adjoining pool. Damodaran also went over there. The accused and Pw. 3 after finishing their bath left the place. Near the steps leading to Pw. 1 Cheeralans house there was a small bund. The accused took his seat on that. Pw. 1 was then frying fish for the evening meal in the open court yard. His brother inlaw, Pw. 2, Adichan, also was there. They were all talking together. At that time Damodaran came after finishing his bath and entered the court yard of Pw. 1. Seeing him the accused rose up and advancing stabbed Damodaran on his abdomen. Damodaran calling for help collapsed within a few feet from the place where he was stabbed. The accused ran away. Damodaran was laid on a cot there itself and he passed away within a few minutes of the occurrence. Pw. 1 and Pw. 3 went and informed Pw. 12, Narayanan who is the brother of Damodaran who immediately went over to the place of occurrence. He gave information at the Adoor Police Station, about 12 miles away, on the next day at 4.30 p.m. On the basis of that the crime was registered and investigation started. The accused surrendered himself to the Police on 8.3.1955 at about 2 p.m. His confession was recorded by the First Class Magistrate of the station on that day itself. Now he stands convicted for the murder of Damodaran.

(2.) The fact that Damodaran passed away on 1.3.1955 as a result of a stab injury sustained by him is clearly proved by the evidence of Pws. 1, 2, 3, 11 and other witnesses on the prosecution side. That the injury was caused with a knife which was in the hand of the accused is also proved and is not questioned on behalf of the defence. The statement of the accused himself when questioned under S.342 of the Criminal Procedure Code in the Sessions Court itself shows that the said injury could have been caused only in that way. But what is contended on his behalf is that as stated by him the injury was caused accidentally and even otherwise only while he was exercising his right of private defence. According to the defence, the occurrence took place not as alleged by the prosecution but by the accused in his statement. It was Damodaran who was the aggressor. He attacked the accused with a wooden stick while he was sitting at the entrance, to the court-yard of Pw. 1. Then a tussle followed between the accused and the deceased during which the deceased happened to sustain the injury in question. It is contended on behalf of the accused that the learned Sessions Judge was wrong in rejecting the aforesaid defence case in view of the nature of the evidence before court. Pws. 1 and 2 are the eye witnesses relied upon by the prosecution. It is on their evidence and the confessional statement of the accused filed as Ext. P(13) that the learned Additional Sessions has based the conviction of the accused. What is urged on behalf of the accused is that though Pws. 1 and 2 supported the prosecution case in their chief-examination in the Sessions Court in their cross examination they have an entirely different version of the occurrence and fully supported the defence position. It is argued that in the face of that the learned Additional Sessions Judge was wrong in relying on their evidence in chief-examination and the statements of Pw. 1 under S.164 Criminal Procedure Code, and their statements in the committal court. It is pointed out that S.288 of the Criminal Procedure Code was wrongly applied by the learned Judge. The evidence of Pw. 2 is further challenged on the ground that his presence at the time of the occurrence was not divulged when the inquest was conducted and hence the statement that he was an eye witness itself cannot be believed. Regarding the presence of Pw. 2 at the time of the occurrence it is clear that there is no ground at all to doubt it. Apart from Pws. 1 and 2, in the statement of the accused under S.342, Cr. P.C. itself his presence there is referred to. The accused says that he came to know that Pw. 2 was in Pw. 1s house and talked to him about the work in his place. So what we have to consider is whether the learned Sessions Judge was wrong in relying upon the evidence of Pws. 1 and 2 as going to prove the prosecution version of the occurrence. Both of them in their chief-examination fully support the prosecution case that when Damodaran came that way after his bath the accused who was sitting there on a bund rose up and advancing stabbed him on his abdomen suddenly. But in cross examination they resiled. According to Pw. 1 when he ran out from his house hearing the cry of the deceased the stabbing was already over and he did not see the actual occurrence. The Public Prosecutor declared him hostile and with the permission of the court confronted him with Ext. P(3), his statement under S.164, Cr. Procedure Code and Ext. P(4) his statement in the committal court. According to him though he gave statements as found there they were all given due to the fear of the Police. Similarly, Pw. 2 while supporting the prosecution case in his chief examination in cross examination stated that the deceased beat the accused before the occurrence. This witness also was declared hostile by the Public Prosecutor and confronted with his deposition in the lower court filed as Ext. P(3). His explanation also is that it was under duress that all the prior statements in support of the prosecution were given. Now the version of these two witnesses given in chief-examination is fully corroborated by the version found in Ext. P. Being the statement of Pw. 1 recorded under S.164 Cr. P.C., Ext. P(4) his statement in the committal court and Ext. P(5) the statement of Pw. 2 in that court. But according to the accuseds counsel the lower court was wrong in admitting this evidence. If that is rejected there is only the conflicting version from the box of these witnesses on the basis of which, it is urged, it will be quite improper to sustain a conviction in a case like this it being further contended that no value can be placed upon a retracted confession like Ext. P(13) the recording of which itself was irregular. Regarding the admissibility of Exts. P(3) to P(5) what is urged is, S.288 of the Criminal Procedure Code, can be invoked only on such sufficient grounds and in exercise of proper judicial discretion, in the present case such discretion being not properly exercised. In the present case both the witnesses fully depose in support of the prosecution case in their chief examination and gave an entirely different version when cross examined. As can be seen from the statement recorded in their depositions the Public Prosecutor sought the permission of the court to declare the witnesses hostile and let in their evidence before the committal court and the statements under S.164, Cr. P.C. With the courts permission the witnesses were confronted with these statements. It is not a case of merely filing the depositions and the statements. The attention of the witnesses was drawn to what was stated there which was in accordance with what was deposed to in chief-examination. The committal court records show that the accused was represented by a counsel there. So the accused had the opportunity of cross examining witnesses in that court. The learned Sessions Judge was right when it was under such circumstances that he relied upon these statements as corroborating the statements given in chief-examination. Gopal Khaitan v. The King (AIR 1949 Calcutta 597) is one of the authorities relied upon by the accuseds counsel. That decision is of course to the effect that evidence under S.288, Cr. P.C. is to be admitted only when the presiding Judge in exercise of proper discretion allows it. It is also rightly stated that such discretion should be exercised most carefully and for very good reasons. The circumstances in that case can be seen from the following observations at page 601:

(3.) Thus nothing has been brought out in this appeal to show that the conviction of the accused under S.302, I.P.C. merits any interference. The learned Judge has awarded only the lesser sentence under the section and so no modification of that is called for.