Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942 AGAINST THE ORDER/JUDGMENT IN SC 26/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KOTTAYAM APPELLANTS/ACCUSED: 1 BIJU S/O.RAMAKRISHNAN, PUTHUREDATHU HOUSE, MANNANANI BHAGOM, CHERUVALLY KARA, CHERUVALLY VILLAGE. 2 SAJI SO.RAMAKRISHNAN OF DO - DO. BY ADV. SRI.V.K.SUNIL RESPONDENT/COMPLAINANT -STATE: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. R1 BY SRI.K.B.UDAYAKUMAR, SR.PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-11-2020, THE COURT ON 30-11-2020 DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 30th day of November 2020 Appellants are the accused in Sessions Case No.26/2005 on the file of the Additional District and Sessions Judge, Fast Track Court (Adhoc) II, Kottayam.
2. The above case is chargesheeted by the Sub Inspector of Police Manimala against the appellants alleging offences punishable under Section 324 and 308 read with Section 34 I.P.C.
3. The prosecution case is that, when the
autorikshaw driven by PW9 in which PW7 was travelling from a place known as Pazhayidam, and reached Mannanai - Ponkunnam road at the Southern side of the house with door No. 6/332-A of the Chirakkadavu Panchayath at Mannanai Bhagom in Cheruvalli Village, at about 9:00 p.m on 28/08/2004, the accused person stopped the autorikshaw. The 2nd accused dragged out PW9 out from the autorikshaw and 1st accused stabbed PW.9 on the left side of neck with MO-1 knife. Receiving the stab injury, PW9 ran away from the place. When PW7
attempted to drive autorikshaw, the first accused stabbed PW7 on both shoulders and the left thigh with the same weapon. When PW7 got down from the
autorikshaw, the second accused delivered blows on the head and face of PW.7 with a wooden stick. PW 10 reached the place of occurrence in his autorikshaw and tried to prevent the accused persons from attacking PW7. However, PW10 was also stabbed by the 1st accused in the left side of the neck with MO1 knife. The prosecution case is that, the accused persons did the above acts in furtherance of their common intention to commit culpable homicide of PW7, PW9 and PW10 not amounting to murder.
4. To substantiate the case, prosecution examined PW.1 to PW 11 and Exts.P1 to P13 were marked on the side of the prosecution. MO1 is the knife. After going through the oral and documentary evidence, the trial court found that both accused committed the offence under Section 324 I.P.C. and the first accused is also guilty under Section 308 of I.P.C. Separate sentence was also imposed. Aggrieved by the conviction and sentence this criminal appeal is filed.
5. Heard the learned counsel for the appellant and the learned Public Prosecutor.
6. The learned counsel for the appellant
submitted that, the incident is not happened as alleged by the prosecution. The learned counsel for the appellant submitted that, the evidence of PW.7, PW.9, PW10 are not believable. The learned counsel for the appellant submitted that, the evidence of PW11 also is not believable. The learned counsel for the appellant submitted that the ocular evidence is not in
confirmation with the medical evidence adduced by the prosecution. The learned counsel for the appellant submitted that, as far as the 2nd accused is
concerned, the offence under Section 324 I.P.C is not made out because the weapon is not seized and there is no evidence to show that the alleged weapon is a dangerous one. The learned counsel for the appellants submitted that, at the maximum the second accused can be convicted only under Section 323 of I.P.C. The learned counsel for the appellants also submitted that, as far as the first accused is concerned the offence under Section 308 is prima facie not made out.
7. The point for consideration in this case are the following.
1. Whether the first accused committed the offence under Section 308 I.P.C
2. Whether the accused Nos.1 and 2 committed offence under Section 324 of I.P.C.
3. Whether the sentence imposed is correct.
8. For convenience, I am considering all these
points together. Altogether 11 witnesses were examined by the prosecution. PW1 is the doctor who examined PW7,PW9 and PW10. PW2 is the Head Constable who recorded the First Information Statement. PW3 is only a scene Mahazar witness. PW4 and PW5 are the witnesses of the Exhibit P7 seizure Mahazar. PW6 is the Investigating Officer. PW 7,PW9 and PW10 are the injured witnesses in this case. PW8 doctor is
examined to prove the discharge certificate of PW7,PW9 and PW 10 which are marked as Exhibits P.11 to P.13. PW11 is an occurrence witness.
9. I perused the entire oral and documentary
evidences. PW7,PW9 and PW10 are the injured witnesses in this case. They deposed uniformly that the accused attacked them. PW7 deposed that his house is situated at Mannanai Bhagom. According to him, PW9 is his cousin and PW10 is his younger brother. The accused persons are his neighbors. According to him, he was going in the autorikshaw driven by PW9 from Pazhayidam to his house on 28.08.2004 at 09:00 p.m. The accused persons stopped the autorikshaw at Mannanai Kavala. The second accused asked PW9, whether PW9 would not take the accused person in his autorikshaw. Then PW9 stated that the accused persons were in an alcoholic haze, he was not inclined to take him in his autorikshaw. Then the second accused drag out PW9 from the autorikshaw and the first accused took a knife from
his waist and stabbed PW9 near the left ear with that weapon. According to PW7 he got off from the autorikshaw and he caught hold of the first accused. At that time, PW9 ran away from that place. It is the further case of PW7 that he try to drive the autorikshaw. At that time, the first accused stabbed PW7 on his both shoulders and the left leg with the knife. Then PW7 alighted from the autorikshaw. At that time, second accused delivered blows on the head and face of PW7 with a wooden stick. It is the case of the PW7 that, PW10 who reached there and prevented the accused from attacking PW7. However, the first accused stabbed PW10 on the left side of the neck. When PW7 and PW10 shouted, PW11 and others reached the place. It is the case of the PW7 that the second accused laid down the wooden stick there and thereafter the second accused along with the first accused, who was carrying the knife ran away from that place. PW7, PW9 and PW10 were taken by PW11 to the Government Hospital, Kanjirappilly and from there, they were taken to the Medical College
Hospital, Kottayam. They were admitted in that hospital. PW7 deposed that there were sufficient light on the place of occurrence from the electric lamps. He also deposed that, the first accused inflicted injuries with MO1. PW7 gave Exhibit P4 statement to the police which bears his signature. Based on the same the F.I.R is registered. This is the sum and substance of the evidence of PW7. The evidence of PW7 is corroborated by PW9 and PW10, who are the injured witnesses. PW 11 is another occurrence witness, he also corroborated the evidence of PW7,PW9 and PW10. There is absolutely nothing to disbelieve the evidence of the injured witnesses and the eye witness examined as PW11. Of course, there are some contradictions in their narration of the incident. These types of contradictions in the evidence are natural when the witnesses are giving evidence after some time from the date of incident. It is a fact that, PW7,PW9 and PW10 are injured witnesses. Their evidence is corroborated with the medical evidence adduced by
the prosecution. PW1 is the doctor who examined PW7, PW9 and PW10. Through him Exhibit P1 to P3 wound certificate is marked. PW8 is the doctor who issued Exhibits P11 to P13, which is the discharge certificate of PW7,PW9 and PW10. As I stated earlier the medical evidence corroborate with the ocular evidence. In the light of the evidence of PW7, PW9, PW10 and PW11 it is proved beyond the reasonable doubt that, accused Nos.1 and 2 inflicted injuries on PW7, PW9 and PW10. As I stated earlier, in the light of the evidence of PW1 and PW8 coupled with Exhibit P1 to P3 and P11 to P13 the injuries on PW7, PW9 and PW10 are also proved. Therefore, it is proved that, the accused inflicted injury on injured in this case.
10. The next question to be decided is what is
the offence committed by the accused. The trial court convicted the first accused under Section 308 I.P.C because he inflicted the fatal injury. I perused the Court charge in this case. As per the Court charge, the offence under Section 308 I.P.C is mentioned as third and lastly in the charge. The Court Charge is extracted hereunder: “ COURT CHARGE I, P.K. Haneefa, Additional Sessions Judge, Fast Track Court (Adhoc)-II, Kottayam do hereby charge you
1. Biju, S/o. Ramakraishnan, Puthuredathu veedu, Mannanani bhagom, Cheruvally kara, Cheruvally Village.
2. Saji, S/o. Ramakrishnan of do do as follows:-
Firstly: That you, the first accused on or about 28.08.2004 at 9 p. m. at Mannanai Bhagom in Cheruvally Village, voluntarily caused hurt to CWs 1 to 3 (Jayakumar, Hariprasad and Prasannakumar), by means of a knife which is an instrument for stabbing, and thereby committed an offence punishable u/s. 324 of the Indian Penal Code within the cognizance of this Court.
Secondly: That you, the 2nd accused, on the
same date, time and place and during the course of the same transaction, voluntarily caused hurt to CW1 (Jayakumar) by means of a wooden stick which is an instrument used as a weapon of offence is likely to cause death, and thereby committed an offence punishable u/s. 324 of the Indian Penal Code and within the cognizance of this Court.
Thirdly: That you, the first accused, on the same date, time and place and during the course of the same transaction, did an act, to wit, inflicting cut injuries on CWs 1 to 3, with such intention or knowledge, under such circumstances, that if by that act you had caused the death of CWs 1 to 3, you would have been guilty of culpable homicide not amounting to murder and that you caused hurt to CWs 1 to 3 by inflicting cut injuries,and thereby committed an offence punishable u/s. 308 of the Indian Penal Code and within the cognizance of this Court.
Lastly: That you, the accused persons 1 and 2, in furtherance of your common intention to commit culpable homicide of CWs 1 to 3 not amounting to murder, on the same date, time and place and during the course of the same transaction, did an act, to wit, inflicting cut injuries on CWs 1 to 3, with such intention or knowledge, under such circumstances, that if by
that act you had caused the death of CWs 1 to 3, you would have been guilty of culpable homicide not amounting to murder and that you caused hurt to CWs 1 to 3 by inflicting cut injuries, and thereby committed an offence punishable u/s. 308 r/w Section 34 of the Indian Penal Code and within the cognizance of this Court.
And I hereby direct that you be tried before this Court on the said charges. Dated this on the 22nd day of February,2005.”
11. A reading of the court charge it is clear
that, the court framed charge against both accused under Section 308 IPC with the aid of Section 34 I.P.C. The trial court without considering the same the first accused alone is convicted under Section 308 I.P.C. The second accused is acquitted under 308 I.P.C. There is no appeal from the state challenging the acquittal of the 2nd accused under Section 308 of I.P.C.
12. Moreover, I perused the entire evidence adduced by the prosecution. It is true that some of
the witnesses sustained serious injuries. Simply because serious injuries are sustained to the injured, the offence under Section 308 of I.P.C will not attract. To attract Section 308 I.P.C , the prosecution has to prove that, there is attempt commit culpable homicide. Section 308 I.P.C is extracted here under; “ 308. Attempt to commit culpable homicide- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
13. After going through the entire oral and documentary evidences adduced by the prosecution. According to me Section 308 I.P.C is not made out against the first accused also. But the offence under section 324 I.P.C is clearly made out in the
facts and circumstance against the both accused.
Therefore, according to me the first accused is entitle benefit of doubt as far as Section 308 I.P.C is considered. But the first and second accused are guilty under Section 324 read with Section 34 of I.P.C.
14. The next question to be decided is about the
sentence to be imposed. The injured in this case sustained serious injuries. It is true that the alleged incident happened on 2004 and now about 16 years elapsed. According to me, the accused should undergo substantive sentence. In the facts and circumstances of the case, there can be a direction to pay a substantial amount as fine, so that compensation can be paid to the injured witnesses in this case. Therefore, this Criminal Appeal is allowed in part.
1. The conviction and sentence imposed under Section 308 I.P.C is set aside.
2. The conviction under Section 324 read with Section 34 I.P.C against the appellants is confirmed.
3. The appellants are sentenced to undergo
rigorous imprisonment for 15 days and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand Only) each under Section 324 read with Section 34 of I.P.C. In default of payment of fine amount, the appellants are directed to undergo simple imprisonment for 6 months. If the fine amount is realised an amount of Rs.30,000/-(Rupees Thirty Thousand Only) each should be paid to PW7,PW9 and PW10 respectively under Section 357 of Cr.P.C as compensation.
Sd/- P.V.KUNHIKRISHNAN JUDGE Jms //True Copy// P.A To Judge