Pareed Pillay, J.:— Accused is alleged to have caused the death of Bhanuvikrama Kurup on 6-1-1985 at about 7.15 p.m while he was walking along with P.W 2 through the Panchayat road. Learned Additional Sessions Judge, Mavelikara found the accused guilty under S. 302 of the Indian Penal Code and convicted and sentenced him to undergo imprisonment for life.
2. Prosecution case is that Sarasamma, wife of the accused had applied for a loan under the I.R.D.P Scheme for conducting a tea shop. The loan was sanctioned on the basis of the permission given by P.W 3 (husband of P.W 2) to conduct the tea shop in his property. Later P.W 3 withdrew the permission. According to the prosecution, the accused was under the impression that the permission was withdrawn by P.W 3 at the instigation of Bhanuvikrama Kurup. Accused nursed a grudge against Bhanuvikrama Kurup and that motivated him to commit the murder. It was P.W 1 who lodged the first information statement (Ext. P-1) before the police. P.W 16, Sub Inspector recorded Ext. P-1. P.W 17 investigated the case. P.W 18, Circle Inspector arrested the accused on 21-4-1987 at 10.30 p.m and after completing the investigation he laid the charge before the Court. Accused (appellant) stood charged along with Madhavan Pillai for having caused the death of Bhanuvikrama Kurup. As the accused (appellant) was absconding, Madhavan Pillai was separately tried in S.C 113 of 1985 by the Additional Sessions Judge. He was acquitted in the case.
3. P.W 1 stated that when he came to the place of occurrence he saw accused and Madhavan Pillai coming from the opposite direction with weapons in their hands. It is also stated by him that he saw Bhanuvikrama Kurup lying with injuries and P.W 2 sitting near him and weeping. According to P.W 1, P.W 2 had told him that the accused and Madhavan Pillai had stabbed Bhanuvikrama Kurup and ran away. P.W 1's evidence also shows that Bhanuvikrama Kurup and P.W 2 were taken to the Government Hospital, Chengannur and that the doctor after examining Bhanuvikrama Kurup pronounced him dead.
4. Prosecution's trumpcard is the testimony of P.W 2. She is the solitary eye witness. She stated that on the date of occurrence at about 7 p.m Bhanuvikrama Kurup came to her house, that they talked for some time in her house, that accused and Madhavan Pillai came near her house and abused her and Bhanuvikrama Kurup, that they left after some time, that a little latter Bhanuvikrama Kurup wanted to go to his house, that she sensed danger and prevented him from going alone, that without paying any heed to her words Bhanuvikrama Kurup left her house and that she accompanied Bhanuvikrama Kurup to see whether she could send Thottumuzhuppil Vijayan also along with him. It is also stated by her that when they reached the place of occurrence, the accused got down from the western compound and challenged Bhanuvikrama Kurup and exhorted Madhavan Pillai to stab Bhanuvikrama Kurup. Madhavan Pillai stabbed Kurup on the back of his left shoulder with M.O 2 dagger. Immediately the accused stabbed Kurup with a pen-knife (M.O 3) on the back of his right shoulder. P.W 2 prevented the accused from stabbing Kurup by holding his hand with the knife and as a result of it she sustained injury on her fingers. Accused pushed her away and again stabbed Kurup on his chest. Thereafter, accused and Madhavan Pillai ran away carrying the weapons. P.W I coming to the place of occurrence on hearing her cry is also spoken to by P.W 2. She and Bhanuvikrama Kurup were taken to the Government Hospital and the doctor after examining Bhanuvikrama Kurup declared him dead.
5. Prosecution mainly relies upon the testimony of P.W 2 and the motive for the crime. P.Ws 1 to 3 were also examined to prove the motive. P.W 1 stated that the wife of the accused had applied for a loan under the I.R.D.P scheme for conducting a tea-shop and P.W 2's husband had agreed to give consent to have it in his property and that he later withdrew the permission. He deposed that the accused quarrelled with his elder sister's son Unnikrishna Pillai, that there was a mediation by Bhanuvikrama Kurup in P.W 1's house, that the accused did not accept the mediation and that P.W 3 withdrew the permission and refused to give the plot for the construction of the tea-shop by the accused.
6. P.W 2 has corroborated the testimony of P.W 1 with regard to the mediation by Bhanuvikrama Kurup and the refusal of the accused to accept it. It is also stated by her that the accused on the mistaken impression that her husband withdrew the permisison at the instance of Bhanuvikrama Kurup had abused her and her husband. P.W 3 has also given evidence with regard to the motive. P.W 4 who was cited to prove the motive turned hostile to the prosecution. P.W 5's evidence is not helpful to prove the motive. Though the evidence of P.W.s 4 and 5 is not in any way helpful to prove the motive it has to be said that there is clear evidence with regard to the motive as could be gathered from the testimony of P.W.s 1 to 3.
7. Learned counsel for the accused pointed out that in the first information statement P.W I has not mentioned that he saw the accused and Madhavan Pillai with weapons in their hands, whereas he has given a totally opposite version before the Court. Counsel submitted that this would show that P.W 1's evidence is not in tune with his statement Ext. P-1 and for that reason his testimony is not believable. Merely because P.W I failed to mention in the F.I.S that he saw the accused and Madhavan Pillai coming from the opposite direction with weapons in their hands his testimony before the Court cannot be discarded. It is trite law that merely because details are not mentioned in the first information statement prosecution case cannot be thrown out on that score.
8. The first information statement was lodged at 8.45 p.m That would show that it was tendered with promptitude. With regard to the evidence of P.W 1 that he saw Bhanuvikrama Kurup lying with stab injuries and that he saw P.W 2 near him there is no inconsistency with what has been stated in Ext. P-1 first information statement.
9. Criticism levelled against the evidence of P.W 2 is that she is a highly interested witness. Defence counsel could not point out any single factor to hold that the testimony of P.W 2 suffers from any infirmity. It is contended by the defence counsel that it is not at all likely that P.W 2 would have accompanied Bhanuvikrama Kurup when her husband could have done so and so it is a glaring circumstance to suspect her testimony. P.W 2 has given sufficient explanation for her conduct. She stated that she prevented her husband from accompanying Bhanuvikrama Kurup as the accused and Madhavan Pillai had abused him prior to the incident. Her evidence shows that she did not want to accompany Bhanuvikrama Kurup upto his house, but she accompanied him to see whether she could send Vijayan along with Kurup. Precisely with that object in mind P.W 2 came out of her house along with Bhanuvikrama Kurup. It was then that the deadly assault followed.
10. Evidence of P.W 2 shows that the accused stabbed Bhanuvikrama Kurup with M.O 3. P.W 19, doctor stated that injury No. 3 was fatal. His evidence discloses that injury No. 3 was sufficient to cause death in the ordinary course of nature. He vouched that injury Nos. 2 and 3 could be caused with a weapon like M.O 3. Defence counsel pointed out that evidence of P.W 19 would show that injury Nos. 2 and 3 could be caused by either of the two weapons and therefore it is not possible to hold that M.O 3 weapon was used to inflict the said injuries. Though the doctor stated so, much weight should be attached to the evidence of P.W 2 when she has stated that the accused used M.O 3 knife.-As it is not possible to hold that the medical evidence is inconsistent with the testimony of P.W 2 and as her testimony with regard, to the incident is found acceptable being not weekened by any factors the Sessions Judge was justified in accepting her testimony.
11. P.W 2's evidence that she sustained injury when she held on the knife used by the accused finds corroboration from Ext. P-11 wound certificate issued by P.W 19 doctor. In view of the acceptable evidence of P.W 2, the defence contention that the prosecution has not succeeded in establishing its case against the accused cannot be accepted.
12. Learned defence counsel submitted that as Madhavan Pillai was acquitted by the Additional Sessions Judge in S.C 113 of 1985 and as the appeal filed by the State against the acquittal has been dismissed by this Court the appellant (accused) cannot be held guilty. It is argued that the evidence adduced by the prosecution in S.C 113 of 1985 was rejected by the Additional Sessions Judge and as the appeal has been dismissed it would not be fair or proper to come to a different finding so far as the accused in S.C 65 of 1987 (appellant) is concerned. Learned Public Prosecutor pointed out that merely because Madhavan Pillai was acquitted in S.C 113 of 1985 the evidence in the present case cannot be discarded and it will have to be analysed properly for coming to a conclusion in this case.
13. The appellant (accused) could not be tried along with Madhavan Pillai as he absconded. The defence counsel could not bring out any contradiction from the testimony of the prosecution witnesses when examined in S.C 113 of 1985 and now. Defence counsel also could not point out any discrepancy in the evidence of P.W 2 when she was examined in S.C 113 of 1985 and now. That being the position, merely because Madhavan Pillai was acquitted in S.C 113 of 1985 there cannot be any automatic conclusion that the appellant is also entitled to be acquitted.
14. In case where co-accused was acquitted in the prior trial it docs not mean that the absconding accused who is subsequently tried is also entitled to be acquitted. Such a position cannot be adopted as it would lead to absurdity. When the absconding accused is apprehended and tried later the Court has necessarily to consider the legally available evidence and cannot adopt the easy course of acquittal on the premises that the co-accused was acquitted. So long as no inconsistencies or contradictions or infirmities were brought out to discredit the witnesses merely because the co-accused was acquitted in the prior trial, case against the absconding accused cannot be thrown out. The case of the absconding accused should be tried and decided on its own evidence unless the evidence was specially recorded under S. 299 Cr. P.C In the case in hand no such evidence was recorded and hence the Court has only to consider the available evidence before it. In other words, merely because the co-accused was acquitted the Court cannot ignore the evidence against the absonding accused and jump to the same conclusion as in the case of the co-accused.
15. It is useful to refer to Emperor v. Ghure* (AIR 1914 Allahabad 85) where the Allahabad High Court had occasion to consider the case where an absconding accused was tried later. The two co-accused in the cited case were tried and were convicted by the Court. The Allahabad High Court held that case of the absconding accused, when found, should be tried and decided altogether irrespective of the fact that there had been a previous trial and conviction upheld by the High Court against the other accused. The legal position is the same in a case where the co-accused was acquitted during the prior trial and absconding accused tried later. The medical evidence would clearly show that injury No. 3 was fatal and as P.W 2 has stated that the injury was caused by the accused with M.O 3 weapon the Additional Sessions Judge was justified in finding the accused guilty under S. 302 of the I.P.C Conviction and sentence entered against the accused are confirmed. Criminal Appeal is dismissed.
16. Dismissed.