Holding

The Supreme Court held that the High Court was justified in re‑appreciating the evidence and set aside the murder conviction, substituting a conviction under Section 304 Part II IPC.

Summary

K. Ramakrishnan Unnithan was charged with offences arising from a violent altercation that culminated in the stabbing death of Kesava Pillai, the father of a witness. The trial court acquitted him, finding the prosecution had not proved the case beyond reasonable doubt. The Kerala High Court reversed the acquittal, convicting him under Section 302 (murder) and Section 324 (voluntarily causing hurt). On appeal, the Supreme Court held that the High Court was within its jurisdiction to re‑appreciate the evidence in an appeal against acquittal, but found that the evidence did not establish the requisite intention or knowledge for murder. Consequently, the Court set aside the conviction under Section 302 and substituted a conviction under Section 304 Part II IPC, limiting the sentence to the period already served, while leaving the conviction under Section 324 unchanged but without a separate sentence.

Issues considered

The scope of the High Court's jurisdiction to interfere with an order of acquittal on appeal.
Whether the evidence proved beyond reasonable doubt that the appellant caused the death with the intention required for a conviction under Section 302 IPC.
Whether the appropriate charge is murder under Section 302 or culpable homicide not amounting to murder under Section 304 Part II.
The power of an appellate court to re‑appreciate evidence in an appeal against acquittal.

Legislation cited

Code of Criminal Procedure, 1973s. 378, s. 386
Indian Penal Code, 1860s. 302, s. 304 Part II, s. 324, s. 34, s. 341, s. 449

Subjects

murderculpable homicide not amounting to murderappellate jurisdictionre‑appreciation of evidenceSection 302 IPCSection 304 Part II IPCcriminal appealeye‑witness testimony

Judgment

A K. RAMAKRISHNAN UNNITHAN
v.
STATE OF KERALA

MARCH 18, 1999

B [G.B. PATTANAIKAND M.B. SHAH, JJ.],

Criminal Procedure Code, 1973-Sections 378 and 386-Murder
trial-Acquittal by the Trial Court-Appeal against such acquittal-Scope of
jurisdiction of the High Court-Consistent evidence of three eye witnesses that
C the appellant-Accused gave a knife blow on vital part of the deceased when
he come out of the house on the cries of his son-the eye-witness account was
fully corroborated by medical evidence-Held, High Court was fully justified
in re-appreciating the entire evidence on record and to record its own con-
clusions as to whether conviction was sustainable--<::riminal trial-Penal
D Code, 1860, Sections 300, 302.
Penal Code, 1860 :

Sections 302 and 304 Part II-Absence of intention to cause deafh and
· knowledge that the death would be the inevitable result-Effect on conviction
E under Section 302-Accused giving blows by stick on deceased's son and on
hearing the cries, the sister and deceased came out of the house-On being
asked as to why the accused was beating his son, the deceased was given a
blow on his abdomen by a knife by the accused-However the blow was only
on account of the altercation and not with any animosity with accused
p -Under such circumstances, it cannot be held that the accused gave the blow
with the intention of causing murder or with the knowledge that the
Deceased's death would be the inevitable result-Hence, the case was one
which fell under Section 304 Part II and not under Section 302.

Section 304 Part II-Sentence under-Case being heard in this Court
G after 13 years-Accused was on bail by the Order of this Court-Accused
undergoing about 4 years in jail---ln such circumstances, the sentences was
limited to the period undergone in jail-Criminal Trial-Sentence.
t

Relationship between the appellant and the deceased was strained
H on account of the deceased helping a person with whom appellant had
1222
K. RAMAKRISHNAN UNNITHAN v. STATE 1223

... property dispute. O;i the date of occurrence, the appellant and the accused A
passed by when PW 1 was sitting on the varandah of a shop near his house,
when the appellant abused PW 1 and PW 1 also in turn abused him. On
this score, there was some scuffie, but due to the intervention of the wife
of appellant, appellant left the place. Appellant, however, came back with
his son (the acquitted accused) and the second accused gave a stick blow
on the head of PW 1 and caught hold of him and then the appellant stabbed
B
him with a knife. On hearing the noises, the sister of PW 1 rushed to the
scene and the father of PW 1 (the deceased) also reached the scene. It is
at this stage that the appellant stabbed the deceased on his abdomen of
which he ultimately died. On the statement of PW 1, FIR was registered
by the police. During the trial, the eye witness account of the three eye C
witnesses was that when PW 1 cried out, his sister and deceased (father of
PW 1), came out of the house and asked as to why his son was being beaten
up and then the appellant stabbed the deceased with a knife. The post-
mortem report of the deceased indicated existence of a sutured incised
wound of inverted 'L' shape on the left side of the abdomen. The doctor D
PW 8 in his evidence stated that the deceased had an incised wound of 4
cm below the umbilicus, left to the midline of the body with a part of the
intestine protruding out and that was the only injury. PW 9, the doctor
who conducted the autopsy, in his evidence stated that there were three
injuries on the deceased, but injury Nos. 1 and 3 were surgical injuries and
injury No. 2 was the inflicted injury. On these facts, the appellant and his E
son stood charged for offences under Section 449, 341, 324 and 302 read
with Section 34 IPC. The additional Sessions Judge acquitted the accused
on the ground that the prosecution had failed to prove the case beyond
reasonable doubt. On appeal, the High Court reversed the acquittal of the
appellant and convicted him under Sections 302 and 324 IPC. He was
F
awarded life imprisonment for the offence committed under Section 302
but no punishment was awarded for the offence committed under Section
324 IPC. Hence this appeal.

It was contended by the appellant that the High Court could have
interfered with the order of the Trial Court after being satisfied that the G
view taken by the acquitting Judge was clearly unreasonable; that the son
of the appellant was falsely implicated by the eye-witnesses and on such
discredited version the role ascribed to the appellant could not have been
relied upon; and that even assuming that the blow was given by the
appellant on the deceased, that would not constitute the offence under H
!

1224 SUPREME COURT REPORTS (1999] 1 S.C.R.
A Section 302 and at the most the offence would be one under Part II of
Section 304. ·""

Partly allowing the appeal, this Court

B HELD : 1.1. 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. 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
C 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.
Having examined the judgment of acquittal passed by the Sessions Judge
D and the impugned Judgment of the High Court, reversing the said judg-
ment of acquittal and on scrutinizing the evidence of the three eye wit-
nesses, there is some substance in the grievance of the appellant that 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 to come to hold that the
High Court exceeded its jurisdiction and the parameters fixed for inter-
E ference with an order of acquittal. (1229-G-H; 1230-A-B]

1.2. The approach of the Sessions Judge and the conclusion arrived
at by him in recording an order of acquittal was not proper and the
conclusion arrived at by the Sessions Judge on several aspects is unsus-
F tainable. Even though, the eye witnesses appear to have exaggerated their
version and improved upon their version in giving a role to 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 the deceased came out
G of his house has been consistently narrated by all 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 three eye witnesses is fully corroborated by the
H medical evidence of the doctors and, therefore, the Sessions Judge was not
K. RAMAKRISHNAN UNNITHAN v. STATE [PATTANAIK, J.] 1225

justified in. discarding this part of the prosecution case and in acquitting A
the appellant. The High Court, therefore, was fully entitled to re-appreciate
the -evidence of these witnesses and records its own conclusion on the
c1uestion whether the evidence of the eye witnesses that the appellant gave
the stabbing. bfow..on the deceased can at all be sustained or not. The
evaluation of the evidence made by the trial court was manifestly erroneous
B
and, therefore, it was the duty of the High Court to interfere with the order
of acquittal passed by the Session Judge. [1230-C-H]

2. On examining the medical evidence on record, it is established
beyond reasonable doubt that the appellant had given one blow but the
blow no doubt was quite severe, as a result of which the intestines had c
protruded out. It is however crystal clear that the appellant had no
animosity against the deceased and he was involved because of the alter-
cation with PW 1. In the scenario in which the appellant has been stated
by the eye witnesses to have given one blow on the deceased, it is difficult
to hold that he gave the blow in question either with the intention of
causing murder of the deceased or with the requisite knowledge that the D
death would otherwise be the inevitable result. In such a situation, even on
accepting the prosecution case, it is held that the accused did not commit
the offence under Section 302 but under Part II of Section 304. The accused
is awarded the sentence of about four years already undergone. His
conviction under Section 324 IPC remains unaltered but no separate E
sentence is being awarded. [1231-D-H]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
64 of 1992.

From the Judgment and Order dated 17.7.91 of the Kerala High F
Court in Crl.A. No. 338 of 1987.

U.R. Lalit, V. Balaji and A.T.M. Sampath for the Appellant.

G. Prakash for the Respondent.
G
The Judgment of the Court was delivered by

PATTANAIK, J. The appellant and his son stood charged for offen-
ces under Sections 449, 341, 324 and 302 read with Section 34 IPC for
having wrongfully restrained PWl and hurting him with a stick and for H
1226 SUPREME COURT REPORTS [1999] 1 S.C.R.
A causing murder of deceased Kesava Pillai, father of PWl by stabbing him
on his abdomen with a knife on 17.4.1985 at 11 P.M. The learned Addi-
tional 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
B 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
c under Section 302 IPC, he was sentenced to imprisonment for life and no
separate sentence was passed for his conviction under Section 324.

The prosecution case in the nutshell is that the relationship between
the accused and the deceased Kesava Pillai was strained as the deceased
D had helped one Velu Pillai with whom the accused had some property
dispute. On 17.4.85 at 11 P.M. while PWl 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, PWl could not recognise them and enquired about
their identity, whereupon the accused-appellant used some abusive lan-
E guage and PWl 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 PWl 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 PWl with a stick and
F then caught hold of him and then the present appellant stabbed him with
a knife. On hearing Hullah, the sister of PWl rushed to the scene. At that
stage when father of PWl 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 AM. Statement of PWl was recorded at
1.15 AM., which was treated as F.I.R., on the basis of which investigation
G 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 PWs 1 to 3 are the eye witnesses to the ..
occurrence. Of these eye witnesses, PW3 is the daughter of the deceased
H whereas PW2 is a neighbour. PW8 is the doctor, who had examined the
K RAMAKRISHNAN UNNITIIAN v. STATE [PATTANAIK, J.] 1227

accused No. 1 and issued the wound certificate. PW9 is the doctor who A
conducted the autopsy on the dead body of the deceased Kesava Pillai and
exhibit P15 is the post-mortem certificate. PW14 is the doctor who at-
tended the deceased Kesava Pillai as well as PWl 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
B
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, PWl was waiting on the road. When he found that
the appellant and his wife are coming, PWl abused them but the appellant
came away and while he reached near the house of PWl, deceased Kesava c
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 PWl and his father.
While the appellant had caught hold of the hand of deceased Kesava Pillai
who had a knife in his hand, a scuffle ensued and deceased Kesava Pillai D
fell down and sustained the injuries on his abdomen on that score. The
further plea is that it is the acquitted accused No. 2, seeing the scuffle, ·
informed the Police Control Room, whereupon the Mobile Police Vehicle
came and picked up the injured PWl and the deceased and removed them
to the hospital and PWs 2 and 3 were never at the scene of occurrence. E
On the basis of the medical evidence of the doctor, who treated deceased
Kesava Pillai in the hospital and the post-mortem report, the learned
Sessions Judge came to the conclusion that deceased Kesava Pillai died as
a result of penetrating injuries sustained on his abdomen and the death is
homicidal in nature. Examining the question as to whether it is the appel-
lant who caused the injury on the deceased by stabbing blow with the
F
means of a knife, the learned Sessions Judge scrutinised the evidence of
PWs 1-3 and also scrutinised the medical evidence with relation to the
injury found on the deceased as well as the injury found on the person of
PWl and came to hold that the story of alleged cause of injury on the
occipital region of PWl as spoken to by the eye witnesses stand totally G
discredited and disproved by the· evidence of PW14 and the injury certifi-
cate Exhibit Pll. The learned Sessions Judge accordingly recorded a
, finding that the first part of the occurrence regarding the alleged beating
on the head of PWl by the appellant with the stick as spoken by the
witnesses stands discredited by the evidence of PW14. The learned Ses- H
1228 SUPREME COURT REPORTS [1999] 1 S.C.R.
A sions Judge also rejected the contention of the defence that the non-
explanation of the injuries on the accused is fatal to the prosecution as such
injuries are superficial in nature being a linear abrasion over the left thenar
and the linear abrasion on the hypothenar eminence. But o.n examining the
evidence of the three eye witnesst:s as well the suspicious circumstances
B appearing in the prosecution case, the Sessions Judge came to hold that
the accused No. 2 was never present at the scene of occurrence and he was
falsely implicated upon by the three eye witnesses. He also further found ..
that when the witnesses have tried falsely to implicate such person and on
account of the inconsistencies between their statements, doubt is created
in the mind 'of the court as to the trustworthiness of the prosecution
C witnesses and, therefore, it must be held that the prosecution failed to
establish the charges against the accused persons beyond reasonable doubt.
With these findings the two accused persons being acquitted, the State
preferred an appeal to the High Court. The High Court by the impugned
Judgment, affirmed the order of acquittal of accused No. 2 Sreenivasan.
D But on re- appreciating the evidence of the eye witnesses and relying upon
the same, came to hold that the prosecution has succeeded in proving
beyond all reasonable doubt that the accused-appellant had inflicted stab
injury on the deceased, besides inflicting injuries on PWl and as such he
is liable for being convicted under Section 302 as well as under Section
E 324IPC. For such conviction he was sentenced to imprisonment for life.

Mr. U.R. Lalit, the learned Senior Counsel, appearing for the appel-
lant contended that though the power of the High Court while sitting in
judgment against an order of acquittal is the same as in appeal against a
F conviction and the court can re-appreciate the entire evidence on record
but in case of an appeal against an order of acquittal the court is duty
bound to examine the reasons on which the order of acquittal was based
and should interfere with the order after being satisfied that the view taken
by the acquitting Judge was clearly unreasonable. If the impugned judg-
ment is examined from the aforesaid stand point, it. would appear that the
G High Court has not adverted to the reasons given by the Sessions Judge in
recording the order of acquittal and, therefore, reversal of an order of
acquittal by the High Court should be interfered with. Mr. Lalit also further
contended that the very fact that the son of the appellant was falsely
implicated by the eye witnesses would itself discredit the witnesses and on
H such discredited version, the role ascribed to the appellant could not have
K.RAMAKRISHNANUNNIIBANv.STATE [PATTANAIK,J.] 1229

been relied upon. Mr. Lalit further urged that though the learned Sessions A
Judge came to the positive conclusion after a thorough analysis of the
evidence that the defence plea was more probable but the High Court
never focussed its attention to the same and has not discussed any thing
on that score, which approach vitiates the impugned judgment. Mr.Lalit
also urged before us that the prosecution not having come forward with a B
true and correct version of the occurrence, the accused is entitled to the
benefit of doubt and, therefore, the order of acquittal should not have been
interfered with by the High Court. Lastly, Mr. Lalit urged that even
assuming the blow given by the appellant on the deceased can be said to
have been established beyond reasonable doubt but that would not con-
stitute the offence under Section 302 and at the most the offence would be
c
one under Part II of Section 304.

The learned counsel appearing for the respondent on the other hand
submitted that it is too well settled that the High Court while sitting in an
appeal against an order of acquittal can re- appreciate the entire evidence D
on record and having done so and having found the witnesses to be reliable,
there is no infirmity with the conviction of the appellant under Section 302
IPC. According to the learned counsel for the respondent, the substratum
of the prosecution story that the appellant gave a fatal blow on the vital
part of the deceased on account of which the deceased ultimately sue- E
cumbed is established through the cogent and consistent evidence of the
three witnesses and such evidence· is corroborated by the medical evidence
of the doctor who treated the deceased at the hospital as well as the doctor
who conducted the autopsy on the dead body and, therefore, the con-
clusion of the High Court that the prosecution case against the appellant
has been proved beyond reasonable doubt is unassailable and cannot be F
interfered with.

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 G
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 H
1230 SUPREME COURT REPORTS [1999] 1 S.C.R.
A erroneous and based on wrong testimony, it would be proper for the High
Court to interfere and reverse an order of acquittal. Having examined the
judgment of acquittal passed by the learned Sessions Judge and the im- ·
pugned Judgment of the High Court, reversing the said judgment of
acquittal and on scrutinizing the evidence of the three eye witnesses,
B though we find some substance in the grievance of Mr. Lalit, appearing for
the appellant that 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
C 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
D charge of murder against the appellant on the ground that he gave a
stabbing blriw 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 embelishment or exaggeration of these eye
witnesses so far as the role ascribed to the appellant from their previous ·
E 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
F 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
G 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. In this view of the matter, we are unable to accept the
ultimate submission of Mr. Lalit that the High Court exceeded its limit in
H interfering with an order or acquittal passed by the learned Sessions Judge.
K RAMAKRISHNAN UNNITHAN v. STAIB (PATTANAIK, J.] 1231
--!
The question then remains for consideration is whether on the A
materials on record can it be said that the appellant gave the blow on the
deceased with the intention of causing murder of the deceased so as to be
convicted under Section 302 IPC. The eye witness account of the three eye
witnesses is to the fact that when PWl cried aloud, his sister rushed there
and at that point of time his father, the deceased came out, opening the
B
door and asked as to why his son is being beaten up and then the appellant
stabbed the deceased on his abdomen with the knife. The post- mortem
report of the deceased indicates existence of a sutured incised wound
inverted "L" shaped on the left side of the abdomen, the vertical limb was
parallel to the midline, 4 ems. in length and the horizontal limb from its
upper and meas~red 3 ems. and was placed 1.3 ems. to the left of midline c
and the junction of the two limbs were at the level 25 of umbilicus. The
wound entered the abdominal cavity. The doctor PW14, who was working
as tutor in surgery, Medical College, Trivandrum and was in the casualty
on 17.4.85, in his evidence stated that the deceased had an incised wound
~
-''f 4 ems. long below the umbilicus, left to the midline of the body with a part D
of the intestine protruding out and that is the only injury. The doctor who
• conducted the autopsy, PW9 in his evidence also stated that though there
are three injuries on the deceased as per the post-mortem report, but injury
Nos. 1 and 3 are surgical injuries and injury No. 2 is the inflicted injury.
Thus it is established beyond reasonable doubt that the appellant had given E
one blow but the blow no-doubt was quite severe, as a result of which the
intestines had protruded out . It is however crystal clear that the appellant
had no animosity against the deceased and he was involved because of the
altercations with PWl. 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 F
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 appel- G
lant 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 circumstan- H
·~

~

'-

1232 SUPREME COURT REPORTS [1999] 1 S.C.R.
A ces, 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. This l

Criminal Appeal is disposed of accordingly. The bail bond furnished by the
appellant stands discharged.

R.K.S. Appeal disposed of.

I-