JOHN ALIAS KUNJUKUITY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appellant was the first accused in Sessions Case 9/68 on the file of the Addl. Sessions Judge, Mavelikara. He was charged with offences falling under S. 307, and 332 IPC. , in that on 9 9 67 at about 8-15 p. m. he attempted a blow on pw. 1, the Sub Inspector of Police, Mavelikara with an iron rod while the latter, on the complaint of the proprietor of the chengannoor town foreign liquor shop that the accused behaved disorderly in the shop, was attempting to arrest him. THE Sub Inspector immediately on receipt of the report of the accused's misbehaviour in the shop proceeded to the place in a jeep accompanied by two constables. THE first accused was seen standing in front of the shop on the steps leading to the shop building. He had an iron rod in his hand and the 2nd accused was standing by his side by way of help and encouragement to him and they were shouting abusive epithets. THE Sub Inspector arrested the first accused and when he was about to be taken to custody he aimed a blow on pw 1's head with the rod making the declaration that he would be killed. THE blow was warded off by the Sub Inspector with his left hand resulting in an abrasion on the hand. Both the accused were immediately removed from the scene and taken to the police station. Pwl tried to contact the Circle inspector and in his absence the Dy. S P. over the phone; but the Dy. S. P. was also not available. THErefore the P. 1. statement was recorded by Pwl himself and the case also was registered by him under S. 307 & 34, IPC. THE Circle inspector came the next morning and the investigation was taken up thereafter by him. He visited the scene of incident and the observation mahazar was prepared. For creating trouble in the liquor shop and causing damage to the shop by breaking bottles, glass etc. , on the complaint of the proprietor of the shop a case (Crime No. 148/67) was taken against the accused. Pwl was treated for the injury on the hand in the government dispensary at Pandalam and Ex-P6 is the wound certificate issued by Pw12 the doctor in charge of that dispensary. In the final charge S. 332 IPC. was also added.

(2.) THE defence case as put forward by the accused in the 342 statement was that while they were standing on the road near the chengannoor town foreign liquor shop, Pwl along with another Sub Inspector one idiculla came that way in a jeep. Seeing the accused on the road they stopped the jeep and got down and without any rhyme or reason Pwl dealt a blow on the first accused's cheek and took him in the jeep. THE 2nd accused was also taken in the jeep. In the police station they were subjected to severe torture. THE reason for this high-handed action on the part of the Sub Inspector is the enmity resulting from the first accused's conduct in working against Sri Idiculla's father-in-law in a case filed by him in the Magistrate's court. For the maltreatment and the injuries caused to the accused a private complaint C. C. 1/68 was preferred by him to the Sub Divisional Magistrate, Chengannur; but that complaint was finally thrown out by the Magistrate and the accused (the two Sub Inspectors) were acquitted. Crime 148/6 which is a case taken against the present accused at the instance of the proprietor of the liquor shop was also dismissed by the Magistrate. In the present case the 2nd accused was acquitted and the first accused was convicted under S. 324 and 332 IPC. and sentenced to R. I. for one year on each count; the sentences are directed to run concurrently.

(3.) PWS 1 to 11, 13 and 16 were cited as occurrence witnessess. Among them pws. 6,8 and 9 were given up and pws. 3 and 16 turned hostile. The learned judge has relied on the evidence of the remaining witnesses. But even the witnesses relied on by the learned judge as could be seen presently are unreliable and their evidence cannot be accepted for any purpose. Pw2 is a constable who was present with the Sub Inspector. Even according to the learned judge the evidence of this witness cannot be accepted as he is only echoing the words of his master. pws. 4 and 5 are two officers attached to the N. E. S. Block the former the Agricultural Extension Officer and the latter the Superintendent of the Warehouse, Chengannoor. These officers, even on their own admission had gone to the liquor shop that day to take some brandy. Two bottles of brandy were purchased by them and some portion of it was actually consumed by them. When they were about to leave the shop, the first accused picked up a quarrel with Pw4 and assaulted him. He was frightened by the tumultuous and highly inflamatory attitude of the first accused and so he requested the shop man to report the matter to the police and it was in that manner that the Sub Inspector happened to be attracted to the shop. According to him, after some time the first accused's excitement subsided and it was when he was trying to get out of the shop that the Sub Inspector came and arrested him. Both the witnesses also swear to the attempted beating by the first accused on the Sub Inspector and the latter warding off the same with his left hand, these witnesses were examined for the prosecution in Crime no. 148/67 also. That is a case taken against the accused for their disorderly behaviour in the shop and before the learned Magistrate the version given by these witnesses was that the arrest of the first accused by the Sub Inspector and the first accused's attempted assault on the Sub Inspector were both inside the shop. Both of them were confronted with the said statement given by them in the Magistrate's court and after some wriggling they had finally to admit that before the Magistrate's court they had stated that the occurrence took place inside the shop. But the learned judge seems to have got over this circumstance by the faulty and unsustainable reasoning that their Magistrate Court depositions were not marked in proof of the discrepancy. The learned judge is clearly in error in having swept over such a discrepancy glaring as it is through such a shortcut. In fact, as is seen from the evidence of the both these witnesses they were confronted with the previous deposition; but the question of marking the deposition did not arise, since the previous statements were all admitted by them. To quote one or two instances, Pw4 stated when confronted with the Magistrate court deposition: The learned judge's pronouncement, therefore, that as these witnesses were not confronted with their earlier statements, the objection cannot hold, is not correct. Moreover, both these witnesses were disbelieved by the learned Magistrate in the case taken against them at the instance of the proprietor of the shop. The learned judge, therefore, was clearly in error in having accepted their testimony in the present case. Both of them belong to Kayamkulam, about 20 miles from the scene of crime. According to them they had to proceed all the way to Chengannur for a peg of brandy. The story is totally unbelievable. The next witness whom the learned judge has believed is pw 7. He was attracted to the scene from the private bus stand where he was waiting to catch the bus to Uzhavallor, his native village which is 7 miles from Chengannur. His case is that at about 8 a. m. that day he had gone to Ennakkadu to see his stepmother residing there. At about 6 p. m. he returned and was waiting at the private bus stand for the bus going to uzhavalloor. From the private bus stand he heard a hubbub from the scene and immediately hurried to the place. There is no doubt that he is a casual witness, whose presence there on that day was improbable. To catch the bus for uzhavalloor he could have very well waited at the transport bus stand which is some distance away, on the way to Ennakkadu. In other words, it was after passing the transport bus stand that he came and waited at the private bus stand. This is an unusual conduct for which no explanation was forthcoming from him. The learned judge in believing this witness has stated his reasons thus: "there is no reason suggested by the defence counsel as to why this witness should speak about the incident and against the 1st accused. No suggestion of any interest in Pwl is made nor any antogonism against the accused is also made against him. " This is not a correct or proper approch in appreciating the evidence of a witness. It would appear from the learned judge's observation that the accused should prove that the witness has enmity towards him and if he fails to prove that the evidence of the witness would have to be accepted. This is casting the burden on the accused. It is not possible for the accused to satisfy the court as to why the witness is compelled to swear against him. This is certainly not the yardstick to measure or assess the worth and credibility of a witness. Here, the witness in question is undoubtedly a casual witness residing miles away. His explanation as to how he happened to be there at the particular time looks highly artificial. It is difficult, therefore, to give any weight to this witness's evidence. pws. 10 and 11 were also cited as eye witnesses. They too were at the private bus stand like pw 7 and attracted to the scene on hearing the noise and commotion that arose from there. The learned judge has discarded their evidence on the ground that they are interested in or obliged to Pwl. The learned judge, however, has believed Pw13 who too was attracted to the scene from the private bus stand. This man as is disclosed from his testimony, is a man of straw. He belongs to Pandanad, from which place pws. 10 and 11 also hail. From Pandanad he went to Aranmula as the servant of one Krishna Pillai who had gone there to purchase a bull. This man was taken by krishna Pillai to drive the bull from market to Krishna Pillai's house. In the next breath he would say that no bull was purchased at all and he had, therefore, to return walking. At about 8 p. m. he came to the private bus stand and from there he is stated to have seen the occurrence. The evidence of this witness looks artificial from start to finish. Probably to get at witnesses like him that the scene of crime had deliberately to be shifted from inside the room to the footsteps leading to the road. Pw16 the proprietor of the liquor shop was declared hostile. The other witness is Pw17 the C. I. who investigated and charge sheeted the case. Certain important features of the case reflecting very much against the truth and bonafides of the prosecution have emerged from his examination. In the first place the charge itself was filed only on 2112 1967 about 3 and odd months after the commission of the crime. Why the charge was so much delayed in a simple case like this passes comprehension. The explanation put forward for the delay is that in the midst of the investigation, Pw17 had been transferred; but the transfer was only on 18101967 and the same day he was succeeded by Pw18 who continued the investigation. In the case of Pw18, of course, the prosecution would say that the investigation was interrupted owing to other personal matters which he had to attend to. All these are eye-wash and this inference of mine stands strengthened by the history behind the alleged abrasion sustained by Pwl on his left hand. The case is that the abrasion was caused while warding off the blow aimed at him by the first accused with an iron rod (the injury sustained is an abrasion 4" in length and 1/2 inch in width from the back of left elbow joint to the middle of the back of left forearm ). Ex-P6 is the wound certificate issued in respect of the injury. That is dated 10 91967; in other words, the injury was seen by the doctor only on the 2nd day. According to the accused, no injury at all was sustained by Pwl and the abrasion was a subsequent manipulation intended to give an aggravated colour to the offence. This case of the accused gets considerable support from the fact that Pwl the S. I. had to go from doctor to doctor to get the wound certificate in support of his case. Normally, he should have gone to the doctor in charge of the Changannur hospital since that is the hospital within the jurisdiction of which the occurrence was alleged to have taken place; but the doctor in charge of that hospital refused to issue a certificate for the obvious reason that either no injury was seen on the person of the S. I. or that the abrasion which is now put forward had struck the doctor as something self-inflicted. The S. I. therefore had to go to Pandalam where one radhakrishnan Chettiar was the S. I. at the time. This Mr. Chettiar is one under whom Pwl had his probation or early training and as such Mr. Chettiar had some sort of a filial affection for Pwl. Chettiar, of course, was prepared to go to any extent to help his disciple. He accordingly took him to Pw12 the medical officer there who readily obliged them by issuing the certificate. These circumstances are sufficient to discredit the prosecution case that an abrasion was sustained on the left hand by Pwl while warding off the blow dealt by the first accused. In the nature of the injury, it is not difficult of being self-inflicted; but I do not want to pursue this point as it was not specifically put to the medical witness. Whatever that be, it cannot but be said that a cloud of suspicion has gathered round the injury and the story spoken to by Pwl that he was beaten with an iron rod cannot be given any credence. In recording the F. I. statement Pwl did not think it necessary to get his body mahazar prepared. No doubt the F. I. statement was his own creation; but the body mahazar if he wanted could have been got prepared by the station writer or any one of his subordinate in the station. The absence of a body mahazar would also add to the improbability and strengthen the suspicion gathering round the injury.