Important Points
1. The plentitude of power available to the Court hearing an appeal against acquittal is the same as that available to a Court hearing an appeal against an order of conviction.
2. In a case of murder, if the reasons given by the trial Court for discarding the testimony of the eye witnesses are not sound, then there should be no hesitation on the part of the High Court in interfering with an order of acquittal.
3. Merely because eye witnesses falsely implicated one of the accused persons, evidence of such eye witnesses could not be discarded against other accused person with regard to his role there was embellishment or exaggeration.

Headnote:(i) Code of Criminal Procedure, 1973 - Section 378 - Appeal against acquittal-Scope of powers of appellate Court-Plentitude of power is same as that available to Court hearing an appeal against an order of conviction-Court will not interfere solely because a different plausible view may arise on evidence.
       Held : The plentitude of power available to the court, hearing an appeal against acquittal is the same as that available to a court hearing an appeal against an order of conviction. But however the court will not interfere solely because a different plausible view may arise on the evidence. In a case of murder, if the reasons given by the trial Court for discarding the testimony of the eye witnesses are not sound, then there should be no hesitation on the part of the High Court in interfering with an order of acquittal. If the Judgment of the trial judge was absolutely perverse, legally erroneous and based on wrong testimony, it would be proper for the High Court to interfere and reverse an order of acquittal. (Para 5)
       (ii) Indian Penal Code, 1860-Section 302/324-Prosecution case that appellant and his son the co-accused bet up P.W. 1 and appellant stabbed him - Hearing cries deceased came out of his house and appellate stabbed on his abdomen on account of which he died-Sessions Court held accused No. 2 was falsely implicated by eye witnesses-It held such false implication created doubt as to trust worthiness of Prosecution witnesses and therefore appellate accused also could not be convicted-High Court on re-appreciation of evidence reversed acquittal in respect of appellant and convicted u/s 302 with life sentence-Justified-No embellishment or exaggeration by eye witnesses so far as role ascribed to appellant from previous version to police-Testimony of eye witnesses fully corroborated by medical evidence-Appellant had no animosity against deceased-In the Scenario in which appellant gave one blow to decease, it could not be said that he gave blow either with intention of causing murder or with knowledge that death would be inevitable result-Conviction altered into one u/s 304, Part II-Sentenced to 4 years which appellant had already undergone.
       Held : The High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, but it is difficult for us to come to hold that the High Court exceeded its jurisdiction and the parameters fixed for interference with an order of acquittal. We find the approach of the learned Sessions Judge in recording an order of acquittal was not proper and the conclusion arrived at by the Sessions Judge on several aspects is unsustainable. Even though, the eye witnesses appear to have exaggerated their version and improved upon their version in giving a role to the accused No. 2 for which an order of acquittal passed by the Sessions Judge has been affirmed by the High Court but to bring home the charge of murder against the appellant on the ground that he gave a stabbing blow on the deceased on a vital part by means of a knife, while he came out of his house has been consistently narrated by the three eye witnesses. There has been no embellishment or exaggeration of these eye witnesses so far as the role ascribed to the appellant from their previous version to the Police is concerned. Thus the basic prosecution case as unfolded through the testimony of the aforesaid three witnesses is fully corroborated by the medical evidence of the two doctors and, therefore, the learned Sessions Judge was not justified in discarding this part of the prosecution case and in acquitting the appellant and the High Court, therefore, was fully entitled to re-appreciate the evidence of these witnesses and record its own conclusion on the question whether the evidence of the eye witnesses that the appellant gave the stabbing blow on the deceased can at all be sustained or not. We have ourselves scrutinized the evidence of the three eye witnesses and we are of the considered opinion that the reasons adduced by the trial Court for discarding their testimony were not at all sound. On the other hand, the evaluation of the evidence made by the trial Court was manifestly erroneous and, therefore, it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. (Para 5)
       It is however crystal clear that the appellant had no animosity against the deceased and he was involved because of the altercations with P.W. 1. The scenario in which the appellant has been stated by the eye witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have the requisite knowledge that the death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case we hold that the accused did not commit the offence under Section 302 but under part II of Section 304 IPC. We accordingly, set aside the conviction of the appellant under Section 302 IPC and instead, convict him under Section 304 Part II. The incident is of the year 1985 and more than 13 years have elapsed. The accused is on bail pursuant to the orders of this court dated 6th February, 1992. Mr. Lalit, appearing for the accused-appellant stated that he has already undergone sentence of about four years. In such circumstances, for his conviction under Section 304 Part II IPC, we sentence him to the period already undergone. His conviction under Section 324 IPC remains unaltered but no separate sentence is being awarded. (Para 6)

Judgment

Pattanaik, J.-The appellant and his son stood charged for offences under Sections 449, 341, 342 and 302 read with Section 34 IPC for having wrongfully restrained P.W. 1 and hurting him with a stick and for causing murder of deceased Kesava Pillai, father of P.W. 1 by stabbing him on his abdomen with a knife on 17.4.1985 at 11 P.M. The learned Additional Sessions Judge, on a thorough discussion of the entire prosecution evidence came to hold that the prosecution has failed to establish the charges beyond reasonable doubt and, therefore, the two accused persons are entitled to be acquitted and accordingly acquitted them of all the charges. On an appeal being carried by the State, the High Court of Kerala by the impugned judgment affirmed the order of acquittal passed by the learned Additional Sessions Judge so far as the son is concerned but reversed the order of acquittal of the appellant herein and convicted him under Section 302 as well as under Section 324 IPC. For his conviction under Section 302 IPC, he was sentenced to imprisonment for life and no separate sentence was passed for his conviction under Section 324.

2. The prosecution case in the nutshell is that the relationship between the accused and the deceased Kesava Pillai was strained as the deceased had helped one Velu Pillai with whom the accused had some property dispute. On 17.4.85 at 11 P.M. while P.W. 1. was sitting on the varandah of a shop near his own house, the accused-appellant and his wife passed by that way. As it was dark, P.W. 1 could not recognise them and enquired about their identity, whereupon the accused-appellant used some abusive language and P.W. 1 in turn, also abused the appellant. On this score, there was a scuffle but on the dissuasion of the wife of the appellant, he left the place. Few minutes later while P.W. 1 reached the door-step of his house, the appellant accompanied by his son (the acquitted accused) reached there and the second accused dealt a blow on the head of P.W. 1 with a stick and then caught hold of him and then the present appellant stabbed him with a knife. On hearing Hullah, the sister of P.W. 1 rushed to the scene. At that stage when father of P.W. 1 reached the scene of occurrence, the appellant stabbed him on his abdomen on account of which he ultimately died in the hospital on the next day at 11.30 A.M. Statement of P.W. 1 was recorded at 1.15 A.M., which was treated as F.I.R., on the basis of which investigation started and on completion of investigation, charge-sheet was submitted by the Police. On being committed, the two accused persons stood their trial. The prosecution examined as many as 17 witnesses and exhibited a large number of documents of whom P.Ws. 1 to 3 are the eye witnesses to the occurrence. Of these eye witnesses, P.W. 3 is the daughter of the deceased whereas P.W. 2 is a neighbour. P.W. 8 is the doctor, who had examined the accused No. 1 and issued the wound certificate. P.W. 9 is the doctor who conducted the autopsy on the dead body of the deceased Kesava Pillai and exhibit P15 is the post-mortem certificate. P.W. 14 is the doctor who attended the deceased Kesava Pillai as well as P.W. 1 in the Medical College Hospital on the night of occurrence. The defence version as reflected in the statement of the accused-appellant under Section 313 Cr.P.C. is that there was a marriage proposal emanated from the deceased but the same did not materialise and on that score there was an enmity. On the date of occurrence, while the appellant and his wife had gone for a marriage negotiation of their son, P.W. 1 was waiting on the road. When he found that the appellant and his wife are coming, P.W. 1 abused them but the appellant came away and while he reached near the house of P.W. 1, deceased Kesava Pillai suddenly came on the road with a knife and attacked him. The appellant attempted to escape from such attack and caught hold of the knife and at that point of time, stones were thrown by P.W. 1 and h

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