SIVAPRASAD Vs. STATE OF KERALA

JUDGEMENT

(1.) On 2nd February 1968 at about 3 p. m. a youngster, by name Sivaprasad, knifed his first cousin Sathyavrithan, the venue of the attack being the market place at Vilabhagom in Vettur Village. The stab on the chest ran the blade into the pleural cavity and Sathyavrithan's survival was fortuitous and fortunate. This criminal episode gave rise to a prosecution under S.307 of the Indian Penal Code against Sivaprasad and his brother who had also participated in the attack but did not live to face the trial, having died earlier. The Trial Court convicted the accused not under S.307 but under S.326 IPC. & sentenced him to rigorous imprisonment for two years and to a fine of Rs. 300/- out of which Rs. 200/- wereto be paid to the wounded Sathyavrithan (Pw. 2) under S.545(1)(b) of the Code of Criminal Procedure. The accused, aggrieved by the conviction and sentence, has appealed against both and a notice has been issued to him under S.439, Criminal Procedure Code, to show cause why the sentence should not be enhanced.

(2.) I will briefly set out the salient facts. Sathyavrithan (P. W. 2) and Sivaprasad (the accused) have an uncle Vasudevan who is now making good in Singapore Before leaving the country he had put pw. 2 in possession of his property for management in his absence. It is stated by the prosecution that the accused had a grouse on this score against his cousin who was appropriating the whole income from the property although both were nephews of Vasudevan and this, according to the prosecution, is the motivation for the commission of the offence On the date of the occurrence at about 3 p. m. pw. 2 was watching a game of "Parial" played by others in front of the shop of one Chandrahasan. The accused, who is said to be doing a petty vegetable business in the market, came up to the scene with his brother from behind and stabbed pw. 2 on the chest. The contribution of the brother was to fist the injured on his back. A scuffle ensued in which the assailant was caught by his cousin but he purchased his release from the hold of the victim by a bite on the shoulder and thereafter made good his escape. A crowd collected and the bleeding pw. 2 was put in a taxi summoned by pw. 1, who had by then reached the 'spot, and was taken to the government hospital at Varkala and then on to the Medical College Hospital, Trivandrum. pw. 1 eventually gave the First Information Statement, Ext. P1, to Pw.6, the Head Constable attached to the Pettah Police Station, who had hastened to the hospital on a requisition from the Medical Officer on duty, pw. 4. The investigation was carried on by pw. 7, the head constable attached to the Varkala Police Station since the place of occurrence fell within the jurisdiction of that station. The Sub Divisional Magistrate, Attingal, before whom the charge sheet was laid, committed the accused to the Sessions Court, Trivandrum his brother having died when the case was pending before the Magistrate. According to the Police, the accused was absconding for over two months from the date of the occurrence till he surrendered before the Court on 6-4-1968. The latter unsuccessfully set up a plea of alibi before the committal Court but abandoned it, in vain, in the Sessions Court in favour of a blank denial of the charge framed against him in that Court.

(3.) I shall now deal with the evidence adduced by the prosecution in the light of the principal criticisms levelled against it by the appellant. His counsel went to the extreme extent of stating that the most serious of the three injuries, the incised wound 2 cm. long, directed transversely over the 6th inter coastal space on the left side of the chest penetrating into the left pleural cavity, was itself caused by a fall in a place strewn with glass pieces and not by a stab with a knife as urged by the prosecution. It is not unusual for an accused person, finding himself in such a situation, resourcefully invoking the grizzly and guilty presence on the scene of broken glass bits or other sharp objects as the villain of the piece. But the condemnation of this recondite suggestion by the accused in this case springs not merely from the very desperate nature of the plea but also from the poverty of testimony to prop it up. Counsel for the accused ventured the argument that injury No. 3 was but an abrasion which might have been caused by a fall and assumed conveniently that the injured must, therefore, have fallen and, from this facile assumption, jumped to the conclusion that the incision on the chest has to be blamed on the glass pieces which perhaps lay strewn about in that place. If wishes were horses, beggars would be riders, and if every 'may be' were to harden into a "must be" at the bidding of the accused, then many a naked possibility can be transformed into a probability and a probability, in turn, equated with proof. However, it needs no shrewdness to discern that the deep wound which dangerously cut into the pleural cavity of Pw.2 was the handiwork of a human agency wielding a cruel knife and not the unkind consequence of a chance fall on the ground accidentally planted with glass pieces. Without further discussion, I agree with the conclusion of the learned Assistant Sessions Judge that pw. 2 had sustained a stab wound on his chest as alleged by the prosecution. The more serious question, however, is whether the accused inflicted the wound on pw. 2; for, only in that event can the case end in a conviction. Our system of trial is concerned only with the limited question as to whether the accused before the Court has committed the act complained of and does not extend to a more socially purposeful enquiry into how, by whom and under what circumstances the crime had been committed. In our accusatory system there is this basic deficiency which blinkers the whole forensic pursuit with the result that when an accused is acquitted of a charge, the crime goes altogether unpunished, justice fails and society looks on helplessly but demoralised. There is ordinarily no chase for the real culprit thereafter. The law reformers in our country, I hope, will remedy this drawback. Be that as it may, I have to examine the evidence adduced in this case to find out whether there is criminal nexus between the appellant and the offence.