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TMI Blog1974 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... kalaries (gymnasiums wherein youngsters were given training in physical culture). A-2 was the Ustad (Master) of the Kalari of the accused, while the kalari of the prosecution faction was run by the brother of P.W. 1 in the latter's compound. Rivalries existed between the two factions. On March 13, 1969, Abdu (P.W. 12) and Ali son of Kunjeen deceased, both belonging to P.W. 1's kalari, were resting in a tea shop after attending a marriage festival. Abdul Rahim (alias) Rahiman (P.W. 13) of the kalari of the accused invited them for a game of Adi Pidi (a sort of kabadi or playful fight). Finding Ali and Abdu unwilling to play, Rahman bullied, taunted and harassed them in various ways. When all these taunts had no effect, he brought a bamboo and poked them with it. Abdu and Ali remained intransigent. After a while, they went to their kalari and reported about this incident to their Ustad, (Kasu). The latter advised them that they should not meekly submit to such harassment, and that if they were attacked again by anybody, they should retaliate adequately. Reassured by the Ustad's advice, they returned from the kalari. Rahiman again armed with a stick and dagger confronted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 1 and 8 were also hit by those stones. 7. A-2 immediately after the incident went to village Adeevathunathu, met ex-M.P. V.C. Ahmmeddunny, P.W. 18, and, in the latter's company, went to the Deputy Superintendent of Police, Always and gave some information about the incident. On being directed by the Deputy Superintendent of Police, Gopinath (P.W. 25), Sub-Inspector of Police Station Always proceeded to the spot at 2.50 p.m. He found the dead bodies of Kochunni and Kunjeen, and P.W. 1 in a serious condition near the scene of the incident. He sent P.W. 1 to the Government Hospital, Always, for medical examination and aid. After detailing some police-men to guard the dead bodies and the spot, the Sub-Inspector returned to the Police Station, and, on receiving a message from the Hospital, went there and recorded the statement Ex. P-1 (a) of the injured, P.W. 1, at 3-30 p.m. He then sent it to the Police Station where, on its basis, the case was registered at 3.55 p.m. Accompanied by the Deputy Superintendent of Police, the Sub-Inspector returned to the scene of occurrence at 4-30 p.m. and assisted the D.S.P. in the investigation of the case. The D.S.P. (P.W. 26) held the inqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the evidence of P.Ws. 1, 8 and 9. After covering the second stage, he summed up his assessment in these terms: So far as the incident witnesses are concerned, I have already dealt with their testimony separately and when I sum up that discussion it will show which of witnesses could be prima facie believed and who will have to be disbelieved. Dealing with P.Ws. 1 and 8, I have observed that both of them have given rather consistent versions P.W. 2 has shifted ground as often as possible and there are material contradictions in his evidence. From the evidence of P.W. 7 also it will be found that he has suppressed material information from his medical attendant. Besides, he has contradicted himself in material respects. P.W. 9 is very much interested in the deceased and he has admitted though not in so many words that his 'Kalari' people had attacked Rahim on 13-6-69. Coming to P.W. 10 I have mentioned then and there itself that he is unreliable. Next comes P.W. 11. whose testimony as observed earlier, contains, contradictions galore. P.W. 12 is the individual who speaks about the entire drama from the beginning to the end. A reading of his deposition will show that he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how the tiles on the roof of the Gramsevak office and the adjacent buildings got broken. 13. After dilating on this stone-pelting affair, he concluded: I am not prepared to believe any one of the prosecution witnesses when he says that he saw any of the accused pelting stones. 14. He then jointly dealt with the evidence of P.Ws. 1, 8 and 9 and observed: It was argued before me that these three witnesses are pitched against the accused and they are partisan witnesses. It was also urged that the evidence of partisan witnesses can never be believed. I cannot subscribe to that broad proposition. 15. After referring to some rulings of this Court, he said that if there is corroboration, evidence of these witnesses could be accepted . Then, he took up P.Ws. 1, 8 and 9, individually. 16. Discussing the evidence of P.W. 1, he said: P.W. 1 is one of those who got injured by stabbing. In the statement before the Doctor he has not implicated A-2 to A-5 by name. He has not mentioned in Ex. P-1 about his injury to the little finger. The lacerated wound on his head cannot ordinarily be caused by a sharp-edged weapon like a dagger. This improbabilises his story of A-5 stab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict with the partisan eye-witnesses examined at the trial. Non-examination of those witnesses was a circumstance in favour of the accused. In the result, the trial Judge accorded the benefit of doubt to all the accused and acquitted them. 23. The State filed appeals against this acquittal. The High Court accepted the appeals, reversed the orders of the trial court and convicted A-1 under Section 302, P.C. for the murder of Kochunni, and A-3 and A-4 for the murder of Kunjeen and sentenced each of the three accused to imprisonment for life. A-2 was convicted under Section 324. Penal Code and sentenced to two years of rigorous imprisonment for causing the hurt to Kochunni. A-1 was further convicted under Section 324 for causing hurt to P.W. 1 and sentenced to one year's rigorous imprisonment. The sentences were directed to run concurrently. 24. Aggrieved by the judgment of the High Court, A-1, A-3 and A-4 have preferred these appeals as of right and A-2 by special leave. 25. Mr. Nuruddin Ahmed, Learned Counsel for the appellants contends that in reversing the well-considered judgment of acquittal recorded by the trial court, the learned Judges of the High Court have stray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the High Court found that the evidence of these P.Ws. was not reliable qua A-5. and for that reason acquitted A-5. It was wrong to convict the appellants on the basis of the same infirm evidence. 26. The ambit of the High Court's powers in an appeal against an order of acquittal, has been the subject of several decisions of this Court. Recently in Bhim Singh v. State of Maharashtra [1974]1SCR793 a Bench of this Court, to which one of us (Beg J.) was a party, summed up the law on the point thus: The age-old controversy with regard to the width and scope of the powers of the appellate Court in an appeal against an order of acquittal must be taken as settled by the decision of this Court in Sanwant Singh v. State of Rajasthan : 1961CriLJ766 . It was held therein that the appellate Court has full powers to review the evidence upon which the order of acquittal is founded and that the different phrases; used in some of the judgments of this Court like substantial and compelling reasons , good and sufficiently cogent' reasons , strong reasons , were not intended to curtail the undoubted power of the appellate Court to review the entire evidence and to come to its own c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge started correctly when on a broad look of the evidence, he found the evidence of P.Ws. 1, 8 and 9 prima facie acceptable. But after the second lap of discussion, he became sceptical; and reversed his mind at the end of the third round of circumgyratory discussion. In such cases where a large number of persons are involved and in the commotion some persons cause injuries to others and the evidence is of a partisan character, it is often safer for the Judge of fact to be guided by the compass of probabilities along the rock-ribbed contours of the case converging on the heart of the matter. Once the Court goes astray from the basic features of the case, it is apt to lose itself in the labyrinths of immaterial details desultory discussion and vacillation arising from unfounded suspicions. This is exactly what has happened in the instant case. Despite the pains taken and the conscientious effort put in to write an elaborate judgment, the trial Judge had, as it were, missed the wood for the trees. The learned Judges of the High Court were, therefore, right in discarding altogether the basically wrong scheme of approach adopted by the trial Court, and in analysing the evidence in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the last person to substitute the real culprit by another. P.W. 2 was almost an independent witness. He was a remote relation. He had no animus whatever against the accused. He deposed to the stabbing of Kochunni by A-1 and A-2. He did not see the stabbing of Kunjeen, because immediately before that, he was boxed on the left temple by one Moideenkutty and had consequently run away. Regarding this injury on his jaw, Dr. Veliyath P.W. 5 opined that it could have been caused by fisting on the jaw. 32. P.W. 8 was son of Kunjeen deceased. He testified that his father was stabbed in the chest by A-3 and A-4, and Kochunni by A-2. Witness rushed to the help of his father, when he was hit by a stone. Medical evidence confirmed that this injury could be caused by stone-pelting. Trial Court rejected his evidence on the transparently untenable ground that his father immediately before being stabbed was shouting Kochunni don't stab me . No capital could be made out of this fact which might have been either wrongly recorded or the result of some slip of tongue on the part of the witness. witness was clear and definite that his father was stabbed by A-3 and A-4. 33. Another reason gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inally cited in the calendar. This occurrence was witnessed by a large number of per sons. The prosecution had examined many of those persons. Those eye-witnesses who had received injuries or were otherwise necessary for unfolding the narrative were examined. The witnesses who have not been examined were given up by the Public Prosecutor, with the allegation that they had been won over by the side of the accused. In the circumstances of this case, this allegation of the Public Prosecutor could not be said to be frivolous. It is undisputed that A-2 went in a car with the Ex M.P. (P.W. 18) and contacted D.S.P. Always (about two miles from the spot) at about 2.40 p.m., and the D.S.P. at 2.50 p.m. directed the Sub-Inspector of Police on phone to go to the spot. Though A-2's contention was that he had run away to inform the police immediately after the commencement of the stone-throwing and before the stabbing, yet all circumstances including the interval of one hour and 15 minutes, suggest that he went away after the stabbing presumably to side-track the police or to give a shape to the case which would be favourable to the accused persons. In any case, an attempt to influence the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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