Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943 AGAINST THE JUDGMENT IN SC 372/2012 OF ADDITIONAL DISTRICT COURT (ADHOC), THODUPUZHA, IDUKKI
APPELLANT/ACCUSED NO.2: SAMSON AGED 22 YEARS, S/O. JOSE, MANALEL VEEDU, CHEEYAPPARA KAMPI LINE BHAGOM, VALARA KARA, MANNAMKANDOM VILLAGE. BY ADV SRI.NIREESH MATHEW ADV.GAJENDRA SING RAJPUROHIT RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. SMT.M.K.PUSHPALATHA (PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -2-
JUDGMENT
Appellant was the 2nd accused in S.C No.372/2012 on the files of the III Additional Sessions Court (Adhoc-I), Thodupuzha. After apprehending him in Crime No.363/2012 of the Adimaly Police Station on 17.02.2012, appellant was released on bail on 30.07.2012, thereby undergoing incarceration for a period of 164 days. By the impugned judgment appellant was convicted for a period of three months and a fine of Rs.5,000/- for the offence under Section 324 IPC with a default sentence of ten days, apart from a sentence of simple imprisonment for one month for the offence under Section 341 IPC. Both the sentences were directed to run concurrently and set off for the period already undergone was also allowed.
2. The above prologue is mentioned only to
convey that irrespective of the outcome of this appeal, the appellant has already undergone the period of sentence imposed in the judgment under -3- challenge in this appeal.
3. The gravamen of the allegation against the accused in SC No.372/2012 was that, on 14.03.2012 at 6.30 p.m due to prior enmity with PW2, and in furtherance of their common intention, 1st accused
abused and threatened to kill PW2 while the appellant, who was the 2nd accused, inflicted a cut injury with a chopper on the posterior side of the left shoulder. According to the prosecution, when a second attempt was made by the 2nd accused to inflict an injury on PW2, he tilted his head and avoided a possible fatal injury to PW2. The accused were thus charged with the offences under Sections 294(b), 324, 341, 506(ii) and Section 308 read with Section 34 of the IPC.
4. After the charges were framed against the
accused, for the offences mentioned above, and on pleading not guilty, the prosecution in an attempt to prove its case examined PW1 to PW8 and marked Exts. P1 to P7. The weapon of offence alleged to -4- have been used for committing the crime was not recovered. The accused marked Exts.D1 to D3 being certified copies of final reports in three separate cases.
5. After appreciating the evidence adduced in
the case, the learned Sessions Judge found the accused guilty for the offences under Sections 341 and 324 of the IPC read with section 34 IPC, but acquitted accused for the offence under Sections 308, 294(b) and 506(ii) of the IPC.
6. This appeal is preferred by the 2nd accused alone. Going by the records of the case, the 1st accused has already undergone the sentence imposed upon him.
7. I have heard Adv.Gajendra Sing Rajpurohit on behalf of Adv.Nireesh Mathew for the appellant and the learned Public Prosecutor Adv.M.K.Pushpalatha.
8. The learned counsel for the appellant vehemently contended that, the prosecution case has -5-
not been proved beyond reasonable doubt and in the nature of the evidence adduced before the Trial Court, the prosecution story is not only shaky but is also unworthy of belief. The learned counsel implored this Court to appreciate the failure of the learned Sessions Judge to rivet its attention to the various defects in the prosecution story. Specific reference was made by the learned counsel to the failure to recover the weapon of offence as well as the evidence of PW2 about the nature and manner of injury inflicted upon the said witness.
9. The injury allegedly caused to PW2 was a minor one as is evident from Ext.P1. The injury noted in Ext.P1 is “contused linear abrasion”. It was impossible for such an injury to have been
caused as alleged by the prosecution, urges Adv.Gajendra Sing Rajpurohit. He therefore, submits that the accused is entitled for the benefit of doubt in spite of the fact that he has already undergone the period of sentence. -6-
10. The learned Public Prosecutor on the other hand contended that, the failure to recover the weapon of offence by itself is not a ground for disbelieving the prosecution case and on the other hand, PW1, the doctor who issued Ext.P1 wound certificate had clearly opined in chief examination that the injury could be caused as alleged.
11. I have considered the rival contentions. A perusal of the evidence adduced before the Trial Court, especially that of PW2 and PW1, I am of the view that an incongruity looms large on the prosecution case which creates doubt upon the manner in which the prosecution had unfolded its story.
12. PW2 is emphatic in his deposition that the
appellant came running with a chopper in his hand and inflicted a cut on his left shoulder. Even in the cross examination he refuses to budge from the said statement given in chief and asserts that the injury was caused on account of the cut inflicted -7- with the chopper by the 2nd accused. Unfortunately for the prosecution the said evidence when juxtaposed with the documentary evidence Ext.P1 wound certificate and the oral evidence of PW1, it can be understood that, there was no cut injury as alleged. PW1 was certain in his view that the injury caused on PW2 a minor one and also that if a person is struck with a sharp edged weapon a severe injury will result. The aforesaid is a crucial incongruity. The inconsistency in the evidence of PW2 with that of PW1 failed to catch the attention of the learned Sessions Judge. The aforesaid incongruity compels this Court to doubt the manner in which prosecution story was unfolded by the prosecution. The said incompatibility in evidence paves the way for giving benefit of doubt to the accused. The only conclusion in view of the above crucial incongruity is that, the prosecution case does not inspire confidence to warrant a conviction of the accused. -8-
13. Since the very foundation of the prosecution case is rendered doubtful, the other evidence adduced by the prosecution is not required to be considered, however it is worth mentioning that the learned Sessions Judge failed to appreciate the case in its proper perspective and the same had led to the conviction of the accused. Having regard to the circumstances as mentioned above, I am of the view that, the appellant is entitled to be given the benefit of
doubt and is therefore liable to be acquitted. Accordingly, I set aside the conviction and sentence imposed upon the appellant in
S.C.No.372/2012 on the files of the III Additional Sessions Judge (Adhoc-I) Thodupuzha and allow this appeal. Sd/- BECHU KURIAN THOMAS JUDGE hmh