State of Kerala vs Cheriyan and Others

Chettur Sankaran Nair, J.—This Appeal by leave, by the State of Kerala is directed against the Order of acquittal in S.C. No. 23/85 on the file of the Court of Session, Thalassery Division. The four Respondents stood trial for the offence u/s 302 read with Section 34 I.P.C., in that they, in furtherance of their common intention, caused the death of one Thomas at or about 10 p.m. on 5th August 1984 at Arayangad, by cutting him with a chopper. The motive is said to be enmity on account of political differences.

On the night of occurrence, the deceased was returning from Kuthuparamba to his house at Alachery. He alighted from a bus, and was walking homewards when he met the Respondents. There was a conversation between the deceased and Respondents, and as they neared the shop of one Kurian, Respondents are said to have waylaid and stabbed the deceased. Hearing his cries, P.W. 2 came on the scene and saw the deceased lying injured. He informed P.W. 1 the son of deceased, and P.W. 1 took the deceased in a bus to the Kuthuparamba hospital. P.W. 11 Doctor examined him and found him dead. He sent Ext. P-12 intimation to the police. Later, P.W. 1 made Ext. P-1 first information statement before the police, and Ext. P-1 (a) first information report was registered. Ext. P-4 is the Inquest Report, while Ext. P-5 is the scene mahazar. P.W. 11 performed an autopsy on the dead body and issued Ext. P-11 Certificate. Respondents were arrested on 20th September 1984. Pursuant to information furnished by fourth Respondent, M.O. 11 chopper was recovered under Ext. P-22 mahazar. P.W. 16 is the attester to the mahazar. Respondents 1 and 2 are said to have made a confession to P.W. 3. P.W. 4 states that she saw the deceased and the accused together around the time of occurrence. P.W. 21 the Judicial Magistrate of First Glass, recorded statements u/s 164 of the Code of Criminal Procedure from P.Ws. 2, 3, 9 and 13. On this evidence, accused were sent up for trail. Their case was one of denial.

The learned Sessions Judge did not chose to accept the evidence of P.W. 3, regarding the extrajudicial confession. According to him, the evidence was not reliable. The other evidence was not considered conclusive by the Sessions Judge.

Learned Public Prosecutor argued that the evidence of P.W. 3 should have been accepted, particularly as it was corroborated by the evidence of P.W. 4 and the medical evidence. P.W. 3 would submit that he saw accused 1 and 2 around 9.30 in the night. At that time, the deceased was walking along the road. Accused 1 and 2 cautioned P.W. 3 not to speak of seeing them. Later in the night, they are said to have gone to the house where the witness and one Soman were sleeping, and informed them that they had killed Thomas. Again, P.W. 3 was Counselled to silence, if he wanted to remain alive. This in brief, is the evidence of P.W. 3. After asking P.W. 3 not to speak of seeing them, the conduct of the accused in making a confession much later, was considered artificial by the Sessions Court. Besides, when questioned by police, P.W. 1 did not speak of this. The question is, whether this finding is unreasonable.

The plenitude 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 the court will not interfere, solely because a different plausible view may arise on the evidence. A court of appeal is not to interfere, merely because it thinks that the view taken by the trial court is not correct. It will interfere only if it thinks that the view taken is wrong.

The witnesses are the eyes and ears of the court. The court which sees the witness and hears the evidence is in a position to assess the credibility of the evidence. Due weight must be given to the appreciation of evidence by the trial court, if the appreciation of evidence is not unreasonable see State of U.P. v. Dharam Chand Jain, 1987 (2) SCC 641 . Considering the evidence in this perspective, we do not think that the rejection of the evidence of P.W. 3 by the Court of Session is unreasonable. The remaining evidence is not conclusive, either. P.W. 4 would only say that the deceased and Respondents were seen together around the time of occurrence. The evidence of P.W. 2 is only to the effect that he heard a conversation in which the name of first accused figured. The evidence of recovery, if at all, would only be against the fourth Respondent, and against him there is no other evidence.

In the result, the order of acquittal is confirmed, and the appeal is dismissed.