Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 30TH DAY OF JULY 2024 / 8TH SRAVANA, 1946 CRL.APPEAL NO. 48 OF 2013 AGAINST THE JUDGMENT DATED 02.01.2013 IN SC NO.33 OF 2010 OF THE ADDITIONAL SESSIONS COURT,KOTTAYAM APPELLANTS/ACCUSED 1 TO 3: 1 RAJESH S/O.RAJAN, SUVIDHYALAYAM (H), AYMANAM KARA, AYMANAM VILLAGE, KOTTAYAM DISTRICT. 2 SREEJITH AGED 34 YEARS S/O.SREEDHARAN, PANANGATTIL HOUSE, AYMANAM KARA, AYMANAM VILLAGE, KOTTAYAM DISTRICT. 3 PRAKASH @ MOTTA PRAKASH AGED 34 YEARS S/O.KUNJUKUNJU, PATHIMATAM, PATHIMATAM COLONY, AYMANAM KARA, AYMANAM VILLAGE, KOTTAYAM DISTRICT. BY ADVS. SRI.C.M.NAZAR SRI.SHAJI P.MATHEW RESPONDENT/STATE & COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE CIRCLE INSPECTOR OF POLICE, KOTTAYAM WEST P.S. SMT SHEEBA THOMAS, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 02.07.2024, THE COURT ON 30.07.2024 DELIVERED THE FOLLOWING:
P.G. AJITHKUMAR, J.
----------------------------------------------------------- ----------------------------------------------------------- Dated this the 30th day of July, 2024
JUDGMENT
The appellants were the accused in S.C.No.33 of 2010
on the files of the Court of Sessions, Kottayam. They were tried on a charge for the offence punishable under Sections 294(b), 323, 324 and 307 read with Section 34 of the Indian Penal Code, 1860 (IPC). They were convicted for the offence punishable under Sections 324 and 307 read with Section 34 of the IPC and acquitted of the other offences. The said conviction and consequent sentence are challenged in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code).
2. The accusation against the appellants were as
follows: The appellants had enmity towards PW1-Subhash, the reason being he informed in police about the incident of the appellants attacking Dileep and Sreejith on an earlier
occasion. In order to wreak vengeance on that at about 7.30 p.m. on 15.12.2008 they attacked PW1 in front of the toddy shop bearing T.S.No.55, which is situated at Aymanam. The 1st appellant attacked PW1 using a chopper, uttering that he would be killed. He sustained injury on the head. He along with PW2 took asylum in the toddy shop, but the appellants followed. When the 1st appellant slashed PW1 using the chopper, he warded it off, which resulted an injury at his left hand. The 2nd appellant kicked PW1 down and when PW2 intervened, he was repeatedly stabbed by the 2nd appellant using a knife. The 3rd appellant using a sword attacked PWs.1 and 2 causing both of them injuries.
3. Following the incident, PWs.1 and 2 were taken to
the Medical College Hospital, Kottayam. While undergoing treatment there, PW1 gave Ext.P1 F.I.statement, based on which the crime was registered by PW12. Ext.P7 is the F.I.R. The investigation resulted in filing a final report. The appellants denied the accusation. Therefore, the prosecution has examined PWs.1 to 19 and proved Exts.P1 to P24. MOs.1
to 7 were identified. After closing the prosecution evidence, the appellants were examined under Section 313(1)(b) of the Code. They denied the incriminating circumstances appeared in evidence. Besides claiming to be innocent, the 2 nd appellant stated that he was not available in the station on the day of occurrence. It was also stated that PWs.1 and 2 are involved in many criminal cases and they have many enemies. The 3 rd appellant also took such a stand and stated that he was falsely implicated in the case. No defence evidence was
adduced except Ext.D1, D1(a) and D2, which are contradictions in the F.I.statement and the former statement of PW6.
4. The trial court, after appreciating the evidence,
found that the prosecution had succeeded in establishing commission of offence under Sections 324 and 307 read with 34 of the IPC alone. The evidence of PWs.1, 2, 5 and 6 are extensively discussed and concluded that they are reliable witnesses. The inconsistencies pointed out in their oral testimonies and also concerning recovery of material objects,
particularly the weapons of offence, which are MOs.1, 2 and 3 are highlighted to disbelieve the said witnesses and discard the prosecution case. The trial court did not accept those contentions.
5. Heard the learned counsel for the appellants and the learned Public Prosecutor.
6. The learned counsel for the appellants after referring to the oral and documentary evidence in extenso, raised the following contentions: 1) In the wound certificates, Exts.P8 and P9, names of the
assailants were not mentioned despite the appellants being persons very familiar to both PWs.1 and 2. That creates doubt about the appellants’ involvement in the incident. 2) PW9, the Assistant Engineer, K.S.E.Board deposed that it was power-cut from 7.30 p.m. to 8.00 p.m. in the locality on the date of incident. That belies the prosecution case that in the electric light PWs.1 and 2 and other witnesses saw the assailants. 3) Going by the versions of PWs.1, 2, 5 and 6, blood gushed out from the wounds, but no blood stain on the floor of the toddy shop was noticed in Ext.P10 scene mahazar and that improbabilised the case of the prosecution. 4) As to the number of persons accompanied PW1 to the toddy shop and with him at the time of occurrence there is no cogent evidence. 5) The evidence is not definite as to the place of occurrence. 6) The specific case of the prosecution that there occurred a scuffle lasting for some time, but the accused did not sustain any injury. That improbabilised the case of the prosecution.
7. Besides those specific contentions, the learned counsel for the appellants also urged that the oral testimonies of PWs.1, 2, 5 and 6 contain irreconcilable inconsistencies
with respect to the chronology of the incident. It is accordingly contended that the conviction of the appellants is incorrect and liable to be set aside. It is lastly submitted that the appellants are entitled, at any rate, to get the benefit of doubt.
8. The versions of PWs.1 and 2 regarding the incident
are more or less similar. They went to the toddy shop to have their dinner. They ordered food. Since informed that about 10 minutes would be required to serve the food, they came out of the toddy shop and stood in front smoking cigarettes. Then the appellants came there in a car. They approached PW1
and, uttering to kill, attacked him. The 1st appellant brandished a chopper, which fell at his head. He as well as PW1 ran inside the toddy shop and the appellants followed. Inside the toddy shop, the 1st appellant again slashed the chopper, which was warded off by PW1 and at that time the 2nd appellant stamped at his abdomen resulting in his falling down. When PW2 intervened, he was stabbed by the 2 nd appellant using a knife. PW1 was slashed at his heel by the 3 rd appellant using a sword.
9. PW1 further deposed that as a result of the said
attack, he lost consciousness and became conscious only when he was in an autorickshaw along with his brother. He had been taken to the Medical College Hospital, where he had undergone treatment. PW2 after narrating the incident proceeded to say that his friend Rakesh took him in a passer by motorcycle towards the hospital. The appellants followed them in their car and waved the sword. Seeing that, the rider
of the motorcycle left it and ran away. He along with Rakesh hid in a nearby property. Sri.Rakesh contacted PW4, who is the brother of PW2, over phone. He came in a motorcycle and took PW2 to the hospital. Since petrol in that motorcycle drained, they availed an autorickshaw and reached the Medical College Hospital, Kottayam. He had to be in the I.C.U. there for five days. It was after that he could give a statement before the police.
10. The prosecution has examined PWs.3 and 4 as occurrence witnesses. They, however, did not stand by their statements to the police. Both of them stated in the court that
they did not see the incident, but only had hearsay information that such an incident occurred. Their evidence therefore is not of avail to the prosecution. PWs.5 and 6 are other two occurrence witnesses. They reached the toddy shop to consume toddy. Both of them stated that while they were in the toddy shop the commotion occurred in one of the rooms there. It was like a one-sided attack. Appellants attacked PWs.1 and 2 using chopper and other weapons. They
maintained that PWs.1 and 2 fell down and they sustained extensive injuries on account of the attack.
11. Soon after the incident, PWs.1 and 2 reached the
Medical College Hospital. PW13 is the Doctor, who examined PWs.1 and 2. At about 8.50 p.m. he examined PW1 and at 8.15 p.m. he examined PW2 and issued respective wound certificates, Ext.P8 and P9. PW13 has narrated the injuries sustained by them. While undergoing treatment there, PW1 had given Ext.P1 statement. It was at about 10.00 p.m. on the same day. When Ext.P1 and medical evidence sufficiently corroborated the oral testimonies of PWs.1 and 2, there can be no doubt about the cause of their injuries. PWs.1 and 2 sustained the injuries as a result of the attack on them at about 7.30 p.m. on 15.12.2008 at the toddy shop situated at Olessa near Aymanam.
12. It has come out in evidence that both PWs.1 and 2
are persons indicted in a few criminal cases. That is a reason affecting their credibility in view of the provisions of Section 146 of the Evidence Act. Therefore the evidence of PWs.1 and 2 has to be subjected to strict scrutiny.
13. True, in Exts.P8 and P9 the cause of injuries stated
is attack by known persons. Names of the assailants are not stated. Both PWs.1 and 2 deposed that the appellants were their neighbors and closely known to each other. They could have therefore mentioned the name of the assailants to the Doctor. It may be noted that both PWs.1 and 2 sustained very serious injuries and were rushed to the hospital. At that time, the priority for the doctor would be providing treatment rather than eliciting the identity of the assailants. Therefore, the failure to mention the name of the assailants in Ext.P8 and P9 is not a reason to disbelieve PWs.1 and 2.
14. It may be noted that soon thereafter, Ext.P1 F.I.
statement was recorded, wherein the names of the assailants were stated by PW1. There was absolutely no occasion or possibility for creating a story or false implication. Moreover, it cannot be expected at all that having sustained serious injuries, PW1 would have gone to implicate innocent persons by sparing the real culprits. Therefore, the said contention of the learned counsel for the appellants cannot be accepted.
15. PW9 deposed that it was power-cut from 7.30 p.m.
to 8.00 p.m. in that area on the relevant day. From the version of PWs.1 and 2 and other attending circumstances, it cannot be said that the incident had occurred after 7.30 p.m. Be noticed, PW2 was examined at about 8.15 p.m. by PW13 at the Medical College Hospital. Evidently the said hospital is not very near to the place of occurrence. None of the witnesses stated for sure that the time of incident was after 7.30 p.m. It is noticed in the scene mahazar that electric tubes are fitted in the toddy shop. Street lights were also available near to the toddy shop. When the evidence suggests only that the incident occurred at or about 7.30 p.m. and the definite assertions of PWs.1, 2, 5 and 6 are that there was electric light at the time of occurrence, availability of light cannot be doubted. The assailants could precisely aim at PWs.1 and 2 and there is nothing in evidence to show that the appellants or anyone else sustained injury in the incident That would also ensure that sufficient light was available at the time of occurrence.
16. The evidence available on record would not
establish that there were blood stains on the floor of the toddy shop. It is narrated in Ext.P10 scene mahazar that dried blood stains were noticed on the door, desk and bench available at the place of occurrence. That is very much indicative of the place of occurrence and also that what PWs.1 and 2 deposed about the incident is true. When the oral testimonies of PWs.1 and 2 in regard to the attack on them are corroborated by the versions of PWs.5 and 6 on essential particulars, the indications stem from the scene mahazar makes their oral evidence trustworthy. In the light of such cogent and credible evidence, the discrepancies that are pointed out concerning place of occurrence, and which other person accompanied PWs.1 and 2 to the toddy shop pale into insignificance.
17. PW17, a Sub Inspector of Police who was then in
charge of investigation, arrested the 2nd appellant on 16.12.2008. He seized the car used by the appellants to reach the place of occurrence. Ext.P15 is the mahazar. It was PW18,
the then Circle Inspector of Police, who carried on the investigation. He obtained custody of all the appellants. From the information gathered from the appellants, MOs.1, 2 and 3, the weapons of offence, were seized. Ext.P11 is the mahazar of recovery of MO1 chopper, Ext.P12 is the mahazar for recovery of MO3, the knife and Ext.P13 is the mahazar for recovery of MO2, the sword. Evidence concerning recovery of the said weapons stands unassailable. When those weapons were recovered based on the information gathered from the respective appellants while they were in the custody of PW18 and PWs.1 and 2 identified those MOs as the weapons offence, that further affirms the oral evidence of PWs.1 and 2.
18. The upshot is that evidence tendered by the
prosecution has proved beyond doubt that the appellants were the assailants. The appellants came together in a car and attacked PWs.1 and 2 using the weapons in front and inside the toddy shop. As a result of the attack using MOs.1 to 3, PWs.1 and 2 sustained serious injuries at their vital parts. They had to undergo treatment for days together. The motive
for the incident is also proved from the above facts. The intention of the appellants is quite clear; they wanted to kill PW1. Therefore, their conviction by the trial court for the offences punishable under Sections 324 and 307 read with Section 34 of the IPC does not suffer from any infirmity or illegality. The sentence imposed by the trial court is commensurate with the gravity of the offence. In the circumstances, I find no reason to interfere with the conviction or sentence. The appeal is therefore dismissed. The appellants shall surrender before the trial court within one month from today. Sd/- P.G. AJITHKUMAR, JUDGE dkr