JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused in Sessions Case No. 30/1956 on the file of the Additional Sessions Court at Kottayam is the appellant. He stood his trial for the offences punishable under S. 302 and 324 of the Indian Penal Code. While admitting the commission of the acts attributed to him by the prosecution, the accused set up a plea of private defence. As a result of the trial of the case, the learned Sessions Judge came to the conclusion that the accused was acting in the exercise of the right of private defence of his own person, but that he has exceeded that right in having inflicted a fatal stab on deceased Uthuppu Mathew and in having caused hurt to his companion Pw. 1. On the strength of such a finding the learned Additional Sessions judge convicted the accused of the offences punishable under S. 304 and 324 and sentenced him to undergo rigorous imprisonment for three years under the first count and for three months under the second count. It was also directed that these sentences are to run consecutively.

(2.) THE occurrence in this case took place at about 5 P. M. on 28. 9. 1952 at the north western portion of Madavanakunnu Purayidom in Ezhicherykara of Ramapuram Pakuthy, meenachil Taluk. THE accused, along with Pws. 3, 7, 8 and Dw. 1 and others, had assembled there for the purpose of playing cards. Pw. 1 and deceased Uthuppu mathew of Andukunnel of Gnavallil, Lalam Pakuthy, who were going about in search of a cow belonging to Pw. 1's cousin, also came to the spot. Pw. 3 went and bought a new pack of cards with the money supplied by Pw. 8. THE party sat down in a circle to play and before commencing the play there was a suggestion that each of these players should contribute one anna towards the price of the cards. Pw. 8 was not agreeable to receive 6 annas as the price of the cards and said that the players should contribute 2 annas each. At this stage Uthuppu mathew said that he would himself pay up the full price of the cards. Feeling humiliated at this suggestion, Pw. 8 protested against it. This was followed by some exchange of words between himself and Uthuppu Mathew. THE latter got wild and went near Pw. 8 and dragged him by the head and also gave a kick on the back of his neck. Seeing this, the accused called out to Uthuppu Mathew not to pick up any quarrel. Uthuppu Mathew could not brook such interference and so he turned against the accused and gave a slap on his cheek asking him what authority he had to interfere in a matter concerning himself and Pw. 8. THE accused returned the blow. While Mathew and the accused were thus exchanging blows, Pw. 1 caught hold of the accused from behind. While the accused was thus in the grip of Pw. 1 Uthuppu Mathew again beat and fisted him on his face and chest. Pw. 3 interceded and caught hold of Mathew and thus prevented him from inflicting further blows on the accused. A few minutes later, Pw. 1 released his hold on the accused. Similarly, Pw. 3 released his hold on Uthuppu Mathew. Soon after getting himself released from the clutches of Pw. 1, the accused took out his knife and rushed towards Uthuppu Mathew and inflicted a stab on the left side of his head just above the ear. Pw. 1 tried to intercede and the accused aimed a stab at him also. In the course of warding off that stab, Pw. 1 sustained an injury on his left fore-arm. THE accused then ran away towards the east. This is the prosecution version of the occurrence in this case. Regarding the earlier part of this story i. e. , up to the stage when the accused and uthuppu Mathew were caught hold of by Pw. 1 and Pw. 3 respectively, the statement of the accused agrees with the prosecution version. THE defence version differs from the prosecution version, only in respect of the circumstances under which the accused and Uthuppu Mathew were released by Pw. 1 and pw. 3 and the situation in which the accused happened to use his knife against mathew and Pw. 1. This aspect of the case will be dealt with while considering the plea of private defence set up by the accused.

(3.) THE direct evidence regarding the occurrence in this case is given by Pw. 1, 3, 7, 8 and 12 and also by Dw. 1 in addition to the witnesses proposed to be examined on the prosecution side as per the charge-sheet filed by the police, the names of a few other persons were also given in the same document as persons who had witnessed the occurrence and Dw. 1 is one such person. THEre can therefore be no doubt that Dw. 1 is equally competent just as the witnesses examined by the prosecution, to speak to the details of the occurrence as it developed. Even though all these witnesses agree in their version regarding the first stage of the occurrence, there is material difference between the version given by Pws. 1 and 7 on the one side and that given by Pws. 3, 8 and 12 and Dw. 1 on the other side, as to the second stage of the occurrence. From the version on which all these witnesses agree, it is clear that deceased Uthuppu Mathew was the aggressor and that it was his improvoked and aggressive acts that brought about the tragedy. Himself along with Pw. 1 arrived at the scene when the accused Pws. 3, 8,12 and others were getting ready to pay cards. Regarding, the contributions to be made by the players towards the price of the cards purchased by Pw. 8, there arose some dispute between him and Pw. 7. THEre was a suggestion that each player should contribute 1 anna. Pw. 8 was not prepared to accept this contribution and he insisted that each player should contribute 2 annas. At the stage Uthuppu mathew volunteered that he would himself pay the entire price of the cards to pw. 8. Feeling that this was an insulting offer, Pw. 8 retorted saying that he had not brought the cards for sale. This was followed by an exchange of words between himself and Uthuppu Mathew. THE uncalled for interference of Uthuppu mathew took an aggressive turn and he pulled Pw. 8 by the hand and gave a kick on the back of his neck. At this stage the accused approached Mathew and appealed to him not to create any trouble. Mathew who was playing the role of bully, did not relish the accused's attempted conciliation and so turned against him and gave a slap on his cheek. THE accused returned the blow but mathew continued his attack on the accused. While such attach was in progress, pw. 1 caught hold of the accused from behind and held him fast. Finding that uthuppu Mathew was again attacking the accused, Pw. 3 appealed to him to desist from such attack and then caught hold of him and separated him from the accused. So far all the witnesses swearing to the occurrence agree. But they differ in their versions as to what transpired subsequently. According to Pws. 1 and 7 Pw. 1 released his hold on the accused after keeping him in custody for a few minutes and that this was followed by the release of Uthuppu Mathew by Pw. 3. It is also stated that the accused quietly sat down and took out his knife and then rushed forward towards mathew and inflicted a stab on the left side of his head. Seeing this Pw. 1 is stated to have approached the accused appealing to him not to stab Mathew. Pws. 1 to 7 have further stated that the accused turned against Pw. 1 and aimed a stab at him which hit Pw. 1 on his left hand when he tried to ward off the stab. As against such a version given by Pws. 1 and 7, an entirely different version is sworn to by Pws. 3, 8,12 and Dw. 1 as to the circumstances under which Mathew and Pw. 1 happened to sustain stabs at the hands of the accused. According to Pws. 3, 8,12 and Dw. 1 Uthuppu Mathew had inflicted a series of fists and blows on the face and on the chest of the accused even while he was in the grip of Pw. 1 and the accused had already become thoroughly exhausted by the time Pw. 3 succeeded in catching hold of mathew and separating him from the accused. When Pw. 1 released his hold on the accused, he was so weak that he could not stand erect but had to squat on the floor. As for Uthuppu Mathew it was not a case of his being voluntarily released by Pw. 3. According to this witness, Mathew was trying to get out of his control and that by the time of the release of the accused by Pw. 1, Mathew succeeded in wriggling out from the hold of Pw. 3. On thus becoming tree, mathew again went up to the accused to continue the attack on him. It was at that stage that the accused used his knife against Mathew according to the version given by Pws. 3, 8 and 12 and Dw. 1. THEse details regarding the latter part of the occurrence were brought out in the cross-examination of these witnesses. Such details as sworn to by these witnesses have been discarded by the learned Sessions judge mainly for the reason that they had not sworn to these details when they were examined before the committing Magistrate or in their chief-examination before the Sessions Court. After thus discarding the details brought out in the cross-examination of these witnesses, the learned sessions Judge has chosen to believe and accept only so much of their evidence as is contained in their chief-examination and which is in agreement with the version given by Pws. 1 and 7. It is highly objectionable and unsafe to adopt such a compartment system in the appreciation of the evidence of a witness. It is wrong to discard altogether the facts elicited in the cross-examination of a witness and to accept as true the version given in the chief examination, even when such version is inconsistent with the facts brought out in the cross-examination. To do so would be to defeat the very purpose of the cross-examination. THE primary object of the cross-examination is to test the truth and correctness of the statements made in the chief examination. THE evidence of a witness must be read as a whole and his credibility has to be decided after a due consideration of the entire evidence. So far as the evidence of Pws. 3, 8 and 12 is concerned, it cannot be said that the details spoken to by them in their cross-examination are at variance with the version given by them in their chief examination. In their chief examination of prosecutor had elicited only such facts which are in support of the prosecution version of the case. Since the witnesses were not asked to give a full narration of details regarding the occurrence but were only answering the questions put to them in their chief examination, they could not have spoken to the details on which they were not questioned. This remark would hold good in respect of the evidence given by them in the committing Court also. But when they were fully cross-examined in the Sessions Court, the defence counsel was able to elicit fuller details regarding the occurrence. THE fact that such details were elicited only at that stage cannot be a reason to discard those details as false. Nothing has been brought out in the evidence of these witnesses to justify the inference that they are particularly interested in the accused and have therefore given false version in their cross-examination to support the accused's plea of private defence. On the other hand, it is seen from the evidence of Pws. 1 and 7 that these two witnesses and deceased Mathew are related to one another. Pw. 1 and Mathew were going about in search of a cow belonging to a cousin of theirs and it was then that they met Pw. 7 and others assembled at the Madavanakunnu Purayidom for the purpose of playing cards. THEre can be no doubt that Pws. 1 and 7 have an interest in swearing against the accused who had inflicted stabs on Mathew and Pw. 1. THE version given by Pw. 1 in his first information statement Ext. P. 1 is inconsistent with the evidence given by him at the trial of the case. In Ext. P. 1 he has suppressed material facts relating to the occurrence by not making any mention of the aggressive acts of Uthuppu Mathew, in first attacking Pw. 8 followed by the attack on the accused. On the other hand, the version given in Ext. P. 1 is to the effect that there was only an exchange of abuse between Mathew and the accused and that such abuse was followed by the infliction of the stabs on Mathew by the accused. THE fact that Pw. 1 had given an entirely false version when he gave the statement Ext. P1, is by itself a sufficient reason to discard his evidence as unreliable. Pw. 7 who is interested in supporting Pw. 1, has also given a version consistent with the version given by Pw. 1. THE version given by these two witnesses is also unnatural and improbable. Uthuppu Mathew who was undoubtedly the aggressor and who was guilty of unprovoked attacks on Pw. 8 and on the accused, would not have kept quiet when he got himself released from the clutches of Pw. 8. It has clearly come out from the evidence on record that even when the accused was in the grip of Pw. 1 Mathew continued his attack on the accused. THE wound certificate Ext. P. 18 describes the several injuries that had thus been inflicted on the accused. Of the six injures described in ext. P. 18 the first was an abrasion on his face below the outer angle of the left eye. THE second was an inflamed abrasion on the upper lip. THE third was a contusion on the lower lip. THE other three injuries were abrasions on the right little finger, on the middle finger and on the left foot. THEse injuries clearly support the version given by Pws. 3, 8 and 12 as to the serious attacks inflicted on the accused by Uthuppu Mathew. THE version given by these witnesses that the accused had become thoroughly exhausted by such attacks on him, can therefore be believed. THE version that Mathew had wriggled out from the clutches of Pw. 8 and had again attempted to attack the accused, also appears to be natural and probable. Such an attitude is quite consistent with the aggressive mood adopted by Uthuppu Mathew from the very start. Thus it is clear that it was not a case of the accused using his knife against Mathew when he was standing quite in a passive mood. On the other hand, the accused was forced to resort to the use of his knife when Mathew was attempting to attack him again after freeing himself from the clutches of Pw. 8. THE situation of the stab wounds found on the person of Mathew also indicates that he must have sustained these injuries at the hands of the accused at a time when he was engaged in attacking the accused. If Mathew was standing in a quite mood while the accused inflicted the stab on him, the probability is that the stab would have been inflicted on some other vulnerable part of his body instead of aiming the stab at his head. THE real situation in which the accused used his knife against Mathew appears to be as described by Pws. 3, 8, and 12 and Dw. 1 and not as stated by Pws. 1 and 7. THE details regarding the last stage of the occurrence have been suppressed by Pws. 1 and 7 for the obvious reason that the disclosure of such details would support the defence plea of private defence. THE other witnesses who had no particular reason to be based in favour of the prosecution or in favour of the defence have given a full and exhaustive account of the situation which compelled the accused to resort to the use of his knife against the aggressors, and we accept the version given by these witnesses as the true and correct version of the occurrence.