Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943 CRL.A.No.1378 OF 2008 AGAINST THE JUDGMENT IN SC 185/2007 DATED 11-06-2008 OF II ADDITIONAL SESSIONS COURT,ERNAKULAM
APPELLANT/ACCUSED NO.2: PRASANNAN AGED 53 YEARS S/O MADHAVAN, MAROTTICAK VEEDU, GANAPATHIKADU BHAGOM, CHELLANAM VILLAGE, ERNAKULAM DISTRICT. BY ADVS. SRI.GEO PAUL SRI.C.R.PRAMOD SRI.M.B.SANDEEP RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED C.I. OF POLICE, MATTANCHERRY, BY PUBLIC, PROSECUTOR, HIGH COURT OF KERALA. BY ADV.SRI K B UDAYAKUMAR- SR P.P. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:2:-
JUDGMENT
Dated this the 31st day of March, 2021 This appeal is filed by the 2 nd accused in SC No.185/2007 on the file of IInd Additional Sessions Court, Ernakulam against the
judgment dated 11th June, 2008 convicting him u/s 307 of the
Indian Penal Code (for short I.P.C.)
2. The case of the prosecution in short is that the
appellant/2nd accused along with the first accused conspired together to kill the defacto complainant/PW1 and in furtherance of their common intention to kill him, the appellant assaulted the defacto complainant on 5/7/2006 at about 7.05 a.m. at Kannamaly-Chellanam public road and stabbed him with a tapping knife (MO1), thereby causing injuries on the left side of his neck and on the abdomen and thus committed the offence.
3. The appellant as well as the first accused appeared before the court below. After hearing both sides, charge was framed against both the accused u/s 120B and 307 of I.P.C. The charge was then read over and explained to the accused who -:3:- pleaded not guilty.
4. The prosecution examined PW1 to PW12 and marked
Exts.P1 to P15. Mos 1 to 8 were identified. The accused were questioned u/s 313 of Cr.P.C. They denied all the incriminating circumstances brought against them during evidence. On the side of defence, one witness was examined as DW1 and Exts.D1 to D5 were marked. Considering the evidence on record, the court below found the appellant guilty for the offence us/ 307 of I.P.C. and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of `25,000/-, in default, to suffer simple imprisonment for six months. The first accused was found
not guilty and he was acquitted. Aggrieved by the said judgment
of conviction, the second accused preferred this appeal.
5. Heard both sides.
6. The points that arise for consideration are:
(i) Whether the court below went wrong in convicting the appellant/2nd accused?
(ii) Whether the sentence is excessive? Point No.1.
7. The learned counsel for the appellant submitted that -:4:-
the ocular witnesses, PW2 to PW3 and PW10 are very close friends of the injured and hence they are interested witnesses. The court below ought not have relied on their testimony, argued the counsel. The learned counsel further submitted that motive has not been proved successfully.
8. As stated already, on the side of prosecution, PW1 to
PW12 were examined. Out of the prosecution witnesses, PW1 is the injured and PW2 to 3 and 10 are occurrence witnesses. The prosecution mainly relies on the evidence of PWs 1 to 3 and 10 to prove the incident and to fix the culpability on the accused. To corroborate their testimony, prosecution relies on medical evidence such as Ext.P5 wound certificate and the testimony of Doctor who was examined as PW7.
9. It has come out in evidence that PW1 and the first
accused were in inimical terms for a very long period and even on the previous day of the incident, both of them were summoned to the police station on account of some dispute between them. It has also come out in evidence that accused No.2 is a toddy tapper in the property of accused No.1. PW1 is the defacto complainant/ injured. PW1 clearly gave evidence that on the date
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of the incident at about 7 a.m. while he was walking towards the tea shop of one George, he saw the appellant approaching towards him in his bicycle. The appellant put his bicycle on stand and told him that his brother has asked him to kill him (PW1) and before he could say anything, the appellant assaulted him with a tapping knife which has been marked as MO1. The first blow was directed towards his neck. Though PW1 attempted to defend the attack, he sustained a cut injury on the left side of his neck. He further deposed that thereafter the appellant attacked him once again and this time he sustained injury on his left hand. He also deposed that next the appellant stabbed him on the left side of his stomach and he sustained a deep cut injury. PW2 and PW3 came to the spot. PW1 was taken to the nearby hospital in the motor bike belonging to PW2. He further deposed that since duty doctor was not available in the said hospital, he was taken to another hospital viz., Gautham Hospital and PW3 and PW4
accompanied him in an autorickshaw. Evidence of PW1 gets corroboration from the evidence of PW2, PW3 and PW10. PW2, PW3 and PW10 deposed in tune with the evidence tendered by PW1. They deposed that they saw the appellant assaulting and -:6:-
stabbing PW1 using a knife. PW1 to PW3 as well as PW10 clearly identified MO1 knife used by the appellant for the commission of offence. They have also identified the appellant before the court. All the above witnesses were examined at length by the learned counsel for the appellant. But nothing tangible have been extracted from their evidence to create any shadow of doubt that they are not truthful witness. They have given reliable, consistent and credible version of the crime and their evidence inspires confidence. It is trite that evidence of the injured witness has to be given much weightage. Where a witness was himself injured in
the incident, the testimony of such witness is generally considered to be very reliable as his evidence gives a built in guarantee of his presence at the scene of crime. It is true that PW2, PW3 and PW10 are friends of the injured. It is also equally settled that the evidence of witnesses cannot be rejected only on the ground that they are close to the victim if their testimony is otherwise reliable. I have already found that the evidence of PW1 to 3 and 10 are reliable and can safely be relied on to sustain the conviction of the appellant.
10. The evidence of the injured and ocular witnesses gets -:7:-
corroboration from the medical evidence as well. PW7 is the Chief Medical Officer attached to the Medical Trust Hospital, Ernakulam. He deposed that on 5/7/2006, at about 8.45 a.m, he examined PW1 and issued Ext.P5 wound certificate describing the injury sustained by him. He testified that the wounds were bleeding and if not treated, could have led to his death. MO1 weapon was shown to the witness who deposed that it is possible to cause injuries sustained by PW1 by a weapon like MO1.
11. On a careful and conscious consideration of the evidence of the prosecution witnesses, I find that their evidence is concise, precise and satisfactory to prove the prosecution
version. Therefore, I have no hesitation to come to the conclusion
that the prosecution has successfully established that the accused has committed offence punishable u/s 307 of IPC . No interference is called for on the said finding of the court below. Point No.2
12. The next question is regarding sentence. The appellant was sentenced to undergo 3 years rigorous imprisonment and to pay a fine of `25,000/-. The entire fine amount was directed to be -:8:- given to injured PW1 as compensation u/s 357(1) of Cr.P.C.
13. Learned counsel for the appellant vehemently
submitted that the substantive sentence imposed by the court below is very excessive. Counsel submitted that the appellant is a first time offender and he has to look after his children and aged mother. Counsel further submitted that it has come out in evidence that there is long standing animosity between PW1 and accused No.1 and the appellant being the employee of accused No.1 happened to be involved in the incident. Counsel added that no specific motive has been proved against the appellant. In these circumstances, learned counsel pleaded for leniency.
14. I find some force in the submission made by the
learned counsel for the appellant. At the same time, the materials on record would show that the injured has sustained several injuries. In these circumstances, I am of the view that the compensation awarded by the court below is not adequate. Section 357 of Cr.P.C. is an important provision but courts have seldom invoked it in its correct perspective. It empowers the court to award adequate compensation to the victim while
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passing the judgment of conviction. It is a measure of responding properly to the crime as well as reconciling the victim with offender. As already stated, the appellant is not involved in any other crime other than this crime. His children and mother are depending on him. He is now aged 65 years. Considering all these
facts and circumstances, I am of the view that the substantive
sentence of imprisonment and fine imposed by the court below has to be modified. I am satisfied that imposition of sentence of rigorous imprisonment of 6 months and a fine of `50,000/- u/s 357(1) Cr.P.C would be adequate. In the result, the appeal is allowed in part confirming the conviction and modifying the sentence as below;
(i) For the offence u/s 307 of IPC, the accused
No.2/appellant is sentenced to undergo rigorous imprisonment for a period of 6 months and to pay a fine of `50,000/- (Rupees Fifty thousand only) in default to suffer simple imprisonment for a period of 3 months.
(ii) Out of the fine amount, `40,000/- (Rupees Forty thousand only) shall be paid to PW1/injured as compensation u/s -:10:- 357(1) of Cr.P.C.
(iii) The appellant is also entitled for set off for the period from 7/7/2006 to 15/7/2006. Sd/- DR. KAUSER EDAPPAGATH Rp True Copy JUDGE PS to Judge