Back
SUPREME COURT OF INDIA
P.N. BHAGWATI AND R.S. SARKARIA, JJ.
Varghes Thomas, Appellant
Versus
State of Kerala, Respondent.
Criminal Appeal No. 179 of 1971,
D/- 26-9-1975.
SC Act, 1970 - Section 2 (a) - Indian Penal Code - Sections 302/326/34 – Offence of murder – order of acquittal - Whether the effect of their testimony is for or against the case for the prosecution - Prosecution case against the appellant was that on 8th March, 1970, in the evening , a drama was staged in the north-western court-yard of the Church in village Chakkupallam, where about 300 persons had gathered for the purpose of witnessing the drama. The drama commenced at 9 p. m. and after it was halfway, there was an interval of about 10 minutes at 11.30 p. m. During the interval there was some altercation between Kuriabose alias Machi, P. W. 8, on the one hand and the appellant and second accused on the other. Some two other persons also joined in the altercation, but after a while, Devasia, P. W. 9, intervened and pacified them. The appellant and accused No. 2 then left and while going along the pathway on the northern side of the Church, at a short distance from the stage, they found the deceased Thomas standing in the lane. So soon as the appellant and accused No. 2 saw the deceased Thomas, the appellant accosted him and said: "Your Machi," that is, P. W. 8 "has overgrown; we shall take revenge on him". The deceased Thomas replied stating; "You have not grown enough to do that" and raised his hand as if to beat the appellant. The appellant thereupon gave three stab injuries to the deceased Thomas in quick succession with the knife M. O. 1 which was with him and one of these injuries was on the chest below the left nipple. On seeing this incident, Mathai, P. W. 1, and his son Mathew, P. W. 2, ran to that place. Mathai, P. W. 1, caught hold of the knife, M. O. 1, and wrested it from the appellant after a short struggle. In this process, Mathai, P. W. 1 received two minor injuries, one on his finger and the other on his thumb. While this struggle for wresting the knife was going on between Mathai, P. W. 1 and the appellant, the second accused inflicted knife injuries on Mathew, P. W. 2 with a knife, M. O. 2, which was in his possession. Immediately after this incident, the appellant and accused No. 2 ran away in the northern direction – Held, We have been taken through the evidence by the learned counsel appearing for High Court has committed any error in its appreciation of the evidence in reversing the acquittal of the appellant - Main argument which found favour with the sessions court and which has been repeated before us on behalf of the appellant is that all the witnesses examined on behalf of the prosecution were relatives of the deceased Thomas and no independent witnesses were examined, though many were available. This complaint, we are afraid, is not justified and has been rightly repelled by the High Court. In the first place, it may be noted that this is not a case where there was any previous enmity between the deceased Thomas or his relatives on the one side and the appellant and accused No. 2 on the other, so that deceased Thomas could be regarded as suspect needing corroboration from independent witnesses. Mathai, P. W. 1 and Mathew, P. W. 2, were both injured in the incident and their presence at the time of the incident could not be doubted. Moreover, Sivaraman, P. W. 6, was an independent witness and his evidence could not be discarded by merely branding it as that of a coached or tutored witness. We have gone through the entire evidence of Sivaraman, P. W. 6, and we must say, it sound quite natural and does not appear to have been given by a witness who has been tutored and who has memorised his supposed role in the incident. It is true that Sivaraman, P. W. 6, was once convicted in a criminal case, but there is nothing brought out in cross-examination to show when the was convicted or for what offence and in the absence of any such details, we cannot reject his evidence merely on the ground that he was once convicted in the past. Even a man who has once erred may speak the truth - we fail to see how this decision can have any application in the present case. mathai P. W. 1, Mathew P. W. 2 and Sivaraman P. W. 6 were necessary witnesses for unfolding the narrative on behalf of the prosecution and they were all examined. This decision does not say that all the witnesses who have seen the incident should be called to give evidence. We do not, therefore, see any reason to take a different view from the one taken by the High Court - Appeal dismissed
Judgment
BHAGWATI, J.:- The appellant, who was accused No. 1, was tried along with accused No. 2 by the Sessions court, Kottayam, for offences under Sections 302 and 326 read with Section 34, Indian Penal Code on the allegation that in pursuance of the common intention of both, the appellant caused the death of one Thomas by inflicting on him three injuries with a malappuram knife, M. O. 1 and the second accused caused grievous hurt to one Mathew, P. W. 2 by inflicting two injuries on him with a similar knife, M. O. 2, on the mid night between 8th/9th March, 1970. The Sessions Court acquitted the appellant and the second accused but, on appeal by the State, the High Court found that the prosecution case was established beyond reasonable doubt and it accordingly convicted the appellant of the offence under Section 302 of the Indian penal Code for intentionally causing the death of Thomas and accused No. 2 of the offence under Section 326, Indian Penal Code for causing grievous hurt to Mathew P. W. 2. The appellant being aggrieved by the reversal of his acquittal preferred the present appeal in virtue of the right conferred upon him under Section 2 (a) of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
2. The prosecution case against the appellant was that on 8th March, 1970, in the evening , a drama was staged in the north-western court-yard of the Church in village Chakkupallam, where about 300 persons had gathered for the purpose of witnessing the drama. The drama commenced at 9 p. m. and after it was halfway, there was an interval of about 10 minutes at 11.30 p. m. During the interval there was some altercation between Kuriabose alias Machi, P. W. 8, on the one hand and the appellant and second accused on the other. Some two other persons also joined in the altercation, but after a while, Devasia, P. W. 9, intervened and pacified them. The appellant and accused No. 2 then left and while going along the pathway on the northern side of the Church, at a short distance from the stage, they found the deceased Thomas standing in the lane. So soon as the appellant and accused No. 2 saw the deceased Thomas, the appellant accosted him and said: "Your Machi," that is, P. W. 8 "has overgrown; we shall take revenge on him". The deceased Thomas replied stating; "You have not grown enough to do that" and raised his hand as if to beat the appellant. The appellant thereupon gave three stab injuries to the deceased Thomas in quick succession with the knife M. O. 1 which was with him and one of these injuries was on the chest below the left nipple. On seeing this incident, Mathai, P. W. 1, and his son Mathew, P. W. 2, ran to that place. Mathai, P. W. 1, caught hold of the knife, M. O. 1, and wrested it from the appellant after a short struggle. In this process, Mathai, P. W. 1 received two minor injuries, one on his finger and the other on his thumb. While this struggle for wresting the knife was going on between Mathai, P. W. 1 and the appellant, the second accused inflicted knife injuries on Mathew, P. W. 2 with a knife, M. O. 2, which was in his possession. Immediately after this incident, the appellant and accused No. 2 ran away in the northern direction. The deceased Thomas fell at the spot where he was stabbed while Mathew, P. W. 2 went a few steps in the northern direction, but collapsed near the wooden cross. This incident was witnessed amongst others, by one Sivaraman, P. W. 6. Mathai, P. W. 1 and Mathew, P. W. 2 were soon thereafter examined by Dr. Varghese, P. W. 5, and their injuries were noted by him. The First Information Report P-1 was lodged by mathai, P. W. 1 and on completion of the investigation, a charge-sheet was filed against the appellant and the second accused resulting first in their acquittal by the Sessions Court but subsequently in their conviction by the High Court on appeal.
3. It is now well settled that the appellate court has full power to review an order of acquittal and to come to its own c
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
