Marachalil Pakku And Anr. vs State Of Madras

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 25 May, 1954

Coram: Mahajan, C.J.

In this appeal by special leave, the Court examined an incident that occurred at approximately four-thirty in the afternoon on 31 October 1952 in the village of Meladi Desam in Malabar, within the residence of the first prosecution witness, a vakil named P. Achuthan, who had practiced law for twenty-seven years. The victim was the vakil’s clerk, Kolangarakandi Kannan, a member of the Thiyya community who was well known in his community’s social circles and who had taken an active interest in representing Hindu interests. Because of this involvement, Kannan was disliked by the Moplas, a group with whom the Thiyyas were experiencing considerable communal tension at that time.

The prosecution alleged that the Moplas, angered by Kannan’s activities on behalf of the Hindu community, resolved to kill him. On the day of the murder a riotous mob had assembled at the railway station, and within half an hour after that gathering dispersed, the appellants together with accused persons numbered three through seven proceeded to the vakil’s house. They entered the room in which Kannan was seeking refuge and inflicted severe stab wounds that caused his death. According to the prosecution’s evidence, accused 4 and accused 5 held Kannan’s hands while accused 3, accused 6 and accused 7 restrained his legs at the moment he was stabbed. After inflicting the injuries the attackers fled the scene. The vakil, who was standing on the verandah, did not enter the room during the assault because he was paralysed with fear and could not intervene.

When the mob withdrew, the vakil entered the room and found Kannan lying in a pool of blood, his condition critical and a rapid loss of life evident. He immediately called a second witness, identified as P. W. 2, and reported that accused 1, accused 2 and five other Moplas had stabbed his clerk and that P. W. 2 should come inside to see the situation for himself. P. W. 2 entered, observed Kannan’s condition, and, at the request of the vakil, proceeded to inform the police. While exiting the house, P. W. 2 encountered a police lorry carrying a sub-inspector and several constables. He stopped the vehicle and relayed the details of the incident to the sub-inspector. The police constable identified as P. W. 7 recorded this report, designated as Exhibit P-1, within fifteen minutes of the occurrence. The report was then transmitted to the police station, and on its basis a first information report was lodged.

In this case, the two appellants were transferred to the court of sessions, where the trial concluded that they had committed murder under Section 302 of the Indian Penal Code. The sessions court therefore convicted them of the offence and imposed the death penalty. Five other accused, numbered three through seven, were also tried and found guilty of murder under Section 302 read with Section 149 of the Indian Penal Code. The sentencing court ordered that these five persons be subjected to transportation for life. The convictions and sentences of the two appellants were subsequently placed before the High Court for confirmation, together with appeals filed by all of the convicted individuals. The High Court affirmed the death sentences imposed on the two appellants, but it gave the benefit of doubt to accused three to seven. Consequently, the High Court set aside the convictions and the life-transportation sentences of those five persons and acquitted them.

The prosecution’s case relied upon the testimony of several witnesses. The first witness, identified as P. W. 1, was a vakil who gave a detailed account of the incident. The second witness, P. W. 2, had been contacted by the vakil immediately after the event and was instructed to report the matter to the police. Additional eyewitnesses, P. W. s 3 and 4, were present in the vicinity at the time of the occurrence, while P. W. s 5 and 6 actually observed Kannan being stabbed. The learned Sessions Judge accepted the evidence of all these eye-witnesses. On appeal before the High Court, the defence attempted to discredit the witnesses, alleging that they were lying and that their statements were influenced by communal bias. The defence advanced a theory that Kannan’s stabbing was the result of a riot at the railway station, that he fled for help to the house of his master P. W. 1, collapsed in the northern room, and that the two appellants, being prominent Muslims, were implicated due to hostility from the Rashtriya Swayam Sewak Sangh. After a thorough debate on the credibility of the eye-witnesses and a consideration of the defence’s theory, the High Court declared in unequivocal terms that there was no reason to doubt the testimony of the vakil P. W. 1. The Court observed that P. W. 1’s evidence was fully corroborated by the deposition of P. W. 2, whose evidence the Court also pronounced true. The Court further held that there was no ground to disagree with the Sessions Judge’s assessment of the evidence of P. W. s 3 and 4. Regarding the testimony of P. W. s 5 and 6, who had witnessed the actual stabbing, the learned Judges stated: “On a careful perusal of the depositions of these two witnesses we are perfectly satisfied that they were eye-witnesses to the incident though a very thorough and searching cross-examination has brought forth minor discrepancies in certain places….” The Court concluded that the minor inconsistencies uncovered by rigorous cross-examination did not affect the overall reliability of the witnesses’ accounts.

In this case, the Court observed that the testimony of the two witnesses who said they saw the accused holding the deceased by his hands and legs had to be accepted as true. The Court noted that the minor differences that emerged during the intensive cross-examination of witnesses three to six, who were not accustomed to giving evidence, did not persuade it. Turning to the question of whether there were any material discrepancies or contradictions among the statements that the witnesses had made either to the police or before the committing magistrate, the learned Judges articulated their approach. They explained that the proper method of assessing witness evidence was to consider the overall picture of the incident and to determine whether any of the witnesses had subsequently altered or qualified their statements in a way that would undermine the truth of what they had originally spoken about. The Judges stated that, in their view, the alleged inconsistencies did not affect the credibility of the testimony. They further observed that the defence had failed to demonstrate any inconsistency between the earlier statements and the deposition given by the first witness in the Sessions Court. Consequently, the challenge to that witness’s testimony was based only on a general claim of improbability and the supposedly unusual conduct of the witnesses. The Court also found that, with respect to witnesses two and three, no part of their earlier statements had been identified as contradictory. Regarding the fourth witness, the Court referred to exhibits P-2, D-3 and D-4, which were introduced to highlight differences between the deposition given in the committing court and that given in the Sessions Court. The learned Sessions Judge had examined these exhibits in paragraph eighteen of his judgment and had concluded that when read together, the documents did not reveal any contradiction. The Court fully endorsed the Sessions Judge’s view and declined to repeat his reasoning.

The Court also examined the defence’s argument that a trail of blood observed from the front door of the house, as shown in the plan of rooms H and H-1, supported the contention that the deceased had received the stab wounds away from the house, perhaps near the railway station. The High Court had considered that if the injuries had indeed been inflicted outside the house, it would have been impossible for the deceased to have entered the room, given the medical evidence. The Court accepted the material placed on record and concluded that there was no doubt that the deceased sustained his injuries inside the room itself and not elsewhere. It was further held that the deceased was carried out of the room while still alive, and because the injuries were severe and involved vital arteries, blood would have continued to flow and therefore would have dripped from his body during the short journey out of the room.

An attack was made that Exhibit P-1, which had been recorded by the police within fifteen minutes of the occurrence, was not genuine and that the police had fabricated a false case against the accused. The High Court rejected this allegation and held that the defence had failed to demonstrate that Exhibit P-1 was a spurious document. Consequently, the High Court affirmed the conviction of the two appellants and concluded that accused 1 and accused 2 had stabbed the deceased, resulting in his death. In an apparently contradictory manner, regarding the alleged participation of accused 3 to 7, the High Court, although not prepared to accept that the prosecution evidence was unreliable and despite its finding that the testimony of prosecution witnesses 5 and 6—that these accused were holding Kannan by his hands and legs—was true, chose to give the benefit of doubt to those persons and acquitted them. The High Court’s reasoning on this point was set out in the penultimate paragraph of its judgment, which read: “We have placed reliance chiefly on the evidence of P. W. 1 and the recitals contained in Exhibit P-1. P. W. 1 was so upset that he was not able to identify accused 3 to 7. Therefore we have to take it that the evidence of P. W. 1 against accused 3 to 7 is very much neutralized. He is not able to say whether accused 3 to 7 were the five among the seven persons who entered the house that day. That is the reason why their names do not appear in Exhibit P-1. If their names also had appeared in Exhibit P-1 we would have held that they are as much guilty as accused 1 and accused 2 are. The absence of their names in Exhibit P-1 does not give us sufficient confidence to hold that since seven persons took part in the murder of whom accused 1 and accused 2 decidedly participated, the remaining five should necessarily be accused 3 to 7. We cannot therefore feel an abiding conviction of a moral certainty about the truth of the participation of the other five accused. Though it is a case where we may be morally convinced, from the evidence of P. Ws. 3, 4, 5 and 6, that these accused were also there, we are inclined to give them the benefit of the doubt. We are fully convinced that seven persons took part in this crime. But in regard to the identity of five of the seven persons, an element of doubt has occurred in our mind in view of the absence of their names in Exhibit P-1 and their non-mention by P. W. 1. When we weigh the evidence of P. Ws. 3 to 6 in the scale along with that of P. W. 1 and Exhibit P-1, it seems to us that greater weight should be given to that of P. W. 1 and”.

In this case the Court examined the evidence surrounding the alleged murder and the question of who participated in it. The record showed that the prosecution had produced Exhibit P-1, a statement that identified two accused, Pakku and Moosa, together with “five other Muslims” as having stabbed the victim, Kannan, with a knife. However, the names of the remaining five alleged participants, who were designated as accused 3 to 7, were not listed in Exhibit P-1 because the witness who prepared that document, PW-2, was not certain of their identities. The trial judges nevertheless held that seven persons had taken part in the crime. They based this conclusion on the testimony of several witnesses whom they believed had positively named all seven participants. In particular, PW-5 and PW-6, whose evidence the Court accepted as truthful, had given the names of the five persons other than the two appellants and had identified them as present at the scene. No party contested that the five individuals who had taken part in the murder along with the two appellants were the same persons who had been charged and tried for the offence.

The counsel for the appellants advanced two principal arguments. First, they contended that the conviction of the two appellants was illegal because the charge required the appellants and the other five accused to constitute an unlawful assembly, and the five accused had been acquitted; consequently, in the absence of a charge against any other unknown persons, the appellants could not be held members of an unlawful assembly having the common object alleged. Second, they argued that the charges had been improperly joined and that this misjoinder vitiated the trial. The Court found that neither of these contentions possessed any merit. Referring to the principle stated in Dalip Singh v. State of Punjab, the Court observed that doubts concerning mistaken identity arise only where the circumstances exclude any reasonable possibility of such a mistake; otherwise, any hesitation on the part of a judge relates to the number of participants, not to their identity. That principle did not apply here because the trial judges had expressly found, in unequivocal terms, that seven persons had participated in the crime.

Nonetheless, the High Court did not accept that the five persons named by PW-5 and PW-6 were necessarily the individuals who had taken part, largely because their names were absent from Exhibit P-1. Consequently, it acquitted accused 3 to 7, giving them the benefit of the doubt. After hearing counsel for the State on the merits, the Court concluded that the High Court had erred in granting that benefit of doubt and in acquitting the five accused. The Court noted that PW-2, responsible for preparing Exhibit P-1, admitted uncertainty about the identities of the five persons, while PW-5 and PW-6, who were not present when Exhibit P-1 was drafted, could not have had their testimony influenced by that document. Therefore, the Court held that the evidence of PW-5 and PW-6 was reliable and that the acquittal of the five accused could not stand. In view of these findings, the Court rejected the appellants’ contentions and affirmed that the two appellants could be convicted under Section 302 read with Section 149 of the Indian Penal Code.

In this case the Court observed that the names of accused persons numbered three through seven were omitted from Exhibit P-1, yet there was absolutely no basis to question the testimony of witnesses five and six on any point. The Court expressed its inability to comprehend how the High Court could have acquitted those accused while accepting as true the evidence of witnesses five and six, which described that the murder of Kannan was carried out by accused one and accused two who stabbed him while the remaining accused restrained him by holding his hands and his legs. The Court also noted that, with respect to the alleged participation of accused three to seven, the trial Court could not characterize the prosecution’s evidence as unreliable. On the basis of these findings, the Court held that there was no room left to invoke any theory of benefit of doubt in the matter. Accordingly, the Court concluded that the acquittal of accused three to seven was erroneous. Although the acquittal of those individuals technically remained on the record, the Court stated that this circumstance could not affect the conviction of the two appellants under Section 302 read with Section 149 of the Indian Penal Code. The Court affirmed that there was no doubt that the two appellants, together with five other persons, had come together with the common purpose and object of ending Kannan’s life. Accordingly, the conviction of appellants one and two for murder under Section 302 read with Section 149 was fully justified. The Court further expressed the view that no misjoinder of charges had occurred in these proceedings; and even assuming, for the sake of argument, that a misjoinder existed, it had not resulted in any prejudice to the case. For the reasons set out above, the appeal was dismissed.