SUPREME COURT OF INDIA

Before:- K.T. Thomas and D.P. Mohapatra, JJ.

Criminal Appeals No. 203 of 1992 with No. 352 of 1992. D/d. 23.3.1999.

Mulavani Kannan and another - Appellants

Versus

State of Kerala - Respondent

A. Indian Penal Code, 1860, Section 302 or Section 304 Part I - Injuries inflicted by accused on deceased resulting in death - Medical Evidence - None of the injuries individually sufficient in the ordinary course of nature to cause death - Doctor concerned also did not say that any of those injuries would be of that type - But those wounds were likely to cause death as blood vessels on the legs were cut - Held that, the offence cannot be a first-degree murder, but it can be altered to a second-degree murder i.e. Section 304 Part I Indian Penal Code.

[Para 8]

B. Criminal Procedure Code, 1973, Sections 378 and 386 - Appeal against acquittal - High Court cannot reverse the finding concerning credibility of a witness unless there are strong and cogent reasons - Trial Court declined to place reliance on the evidence of PW 1 solely because the doctor did not notice any external injury on his person - PW 1 was admitted in the hospital on complaint that he was subjected to beating - No visible injury would have been sustained by him - Trial Court did not consider the implication of the first information statement which PW 1 lodged with the authorities very soon after the occurrence - That statement has a great corroborative value so far as testimony of an eyewitness is concerned - Held that, evidence of PW 1, in the aforesaid circumstances, should not have been lightly sidelined - Held that, there were strong reasons to persuade High Court to reverse the findings of trial court.

[Para 7]

ORDER

K.T. Thomas, J. - There are four appellants who alone were convicted by the trial court out of thirteen persons arrayed before it. But the trial court restricted the conviction to Section 326 read with Section 149 of the Indian Penal Code and sentenced each of them to rigorous imprisonment for five years. They as well as the State have filed appeals and the High Court allowed the State appeal by escalating the offence to Section 302 Indian Penal Code as against A-2 Kannan and A-5 Krishnan @ Chukkru and sentenced them to imprisonment for life. The conviction and sentence passed on A-1 Sreedharan and A-4 Krishnan were maintained without interference.

2. The incident which gave rise to the said case happened at about 11.30 a.m. on 10-2-1982 in and out of the office of the Service Cooperative Society (Bank) of Poothanganam in Kasaragod district. It was the aftermath of political rivalry between the followers of Marxist party and BJP. Tension was prevailing in the locality as between the said two factions for a long time. At the time of occurrence a meeting of the Board of Directors of the Cooperative Society was being held. The assailants went there as a gang variously armed and barged into the office of the Society and started attacking their opponents. Some of the injured escaped by running away. But A-2 Kannan chased one person called Thankappan and intercepted him and inflicted a number of blows on him with a chopper. Likewise one Govindan who ran away was chased by A-5 Krishnan @ Chukkru who succeeded in catching the victim as he fell down on the way. A-5 then inflicted a lot of cut injuries on his body. Subsequently, Thankappan and Govindan died due to the injuries sustained.

3. Though a catena of witnesses was examined by the prosecution, it was found that only PW 1 Edmunda Krishnan and PW 2 Kavi Narayanan alone did matter as for the guilt of A-2 Kannan and A-5 Krishnan. This is because the rest of the witnesses were not able to pinpoint any of the assailants for inflicting the fatal injuries sustained by the deceased.

4. The trial Judge felt that PW 1 Krishnan would have run away from the place after receiving some assaults and therefore he would not have seen how the two deceased sustained injuries. Likewise the Sessions Judge felt about PW 2 Narayanan also.

5. But the High Court pointed out that evidence of PW 1 was fully corroborated by the first information statement lodged by him within a couple of hours thereafter in which PW 1 gave vivid details of the attack made against the two deceased by A-2 Kannan and A-5 Krishnan. The High Court thereupon thought it necessary to place reliance on the evidence of PW 1 and also PW 2 and found on the strength of their testimony that the aforesaid two accused inflicted the fatal blows on the deceased with lethal weapons.

6. Mr. U.R. Lalit, learned Senior Counsel arguing for the accused contended that the High Court went wrong in upsetting the finding of the trial court, particularly regarding the appreciation of evidence of the eyewitnesses. True, the reversal of a finding concerning the credibility of a witness cannot be done by the High Court, while dealing with an appeal against acquittal, unless there are strong and cogent reasons. But we find from the judgment of the High Court that there were such strong reasons to persuade the appellate court to reserve the findings.

7. The trial court declined to place reliance on the evidence of PW 1 solely because the doctor who examined PW 1 did not notice any external injury on his person. But the fact remains that PW 1 was admitted in the hospital on complaint that he was subjected to beating. Perhaps no visible injury would have been sustained by him. The trial court did not consider the implication of the first information statement which PW 1 lodged with the authorities very soon after the occurrence. That statement has a great corroborative value so far as testimony of an eyewitness is concerned. We agree with the High Court that the evidence of PW 1, in the aforesaid circumstances, should not have been lightly sidelined. The testimony of PW 2 normally goes with PW 1 because both of them were standing at proximal distance between each other.

8. Learned counsel then adopted an alternative contention that the offence should not have been escalated to Section 302 Indian Penal Code as for A-2 Kannan and A-5 Krishnan. He invited our attention to the injuries described in the post-mortem certificates issued by the doctor who conducted the autopsy on the dead body of the deceased. We agree with the contention of the learned counsel that none of the injuries can be termed as individually sufficient in the ordinary course of nature to cause death. The doctor concerned also did not say that any of those injuries would be of that type. But those wounds were likely to cause death as blood vessels on the legs were cut. We therefore agree with the learned counsel that the offence cannot be a first-degree murder, but it can be altered to a second-degree murder i.e. Section 304 Part I Indian Penal Code.

9. We therefore alter the conviction as for A-2 Kannan and A-5 Krishnan @ Chukkru to the offence under Section 304 Part I Indian Penal Code and sentence each of them to undergo rigorous imprisonment for eight years.

10. Regarding A-1 Sreedharan and A-4 Krishnan, they were convicted for the offence under Section 326 read with Section 149 by considering some of the injuries which could be termed as grievous hurt. Taking into account the fact that 17 years have lapsed thereafter, we are inclined to reduce the sentence as for those two persons, to imprisonment for the period they have already undergone. In other words A-1 Sreedharan and A-4 Krishnan need not be put back in jail for undergoing any further portion of the sentence. But A-2 Kannan and A-5 Krishnan @ Chukkru must be put back in jail to undergo the remaining portion of the sentence. We direct the Sessions Judge, Kasaragod, to take necessary steps to put them back in jail.

11. Appeals are disposed of.

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