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 CRL.A.No.1376 OF 2005 AGAINST THE JUDGMENT IN SC 279/2002 DATED 03-08-2005 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC), FAST TRACK COURT-1, PATHANAMTHITTA APPELLANTS/ACCUSED:
1 VIJAYAN,S/O. KUTTAN PILLAI, MUKALUVILATHEKKETHIL VEEDU, MELOODU MURI,, PERINGANADU VILLAGE, ADOOR TALUK. 2 BALAKRISHNA KURUP, S/O. RAGHAVA KURUP,GIRIJA BHAVAN, DO. DO. 3 SANTHOSHKUMAR, S/O. GOVINDAN,CHARUVILA VEEDU, DO. DO. 4 GOPALAKIRSHNAN, S/O. KRISHNAN,MONARAVADAKETHIL VEEDU, DO. DO. 5 SANTHOSHKUMAR, S/O. SASIDHARAN ACHARI PARANKIMAMVILAKIZHAKKETHIL VEEDU, DO. DO. 6 SIVADASAN, S/O. BHASKARAN,AMBALATHINALPURAYIL VEEDU, DO. DO. 7 VISWANADHAN NAIR, S/O. RAMAN NAIR,ALUVILAKIZHAKKETHIL VEEDU, DO. DO. BY ADVS. SMT.C.G.PREETHA SRI.M.PRAVEESH SRI.C.S.SUNIL SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN
RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR ,HIGH COURT OF KERALA, ERNAKULAM. OTHER PRESENT: R1 BY SRI.K.B.UDAYAKUMAR, SR.PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30-11-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.APPEAL No.1376 of 2005 2
JUDGMENT
Dated this the 30th day of November 2020 ... The appellants are the accused in Sessions Case No.279 of 2002 on the file of the Additional District and Sessions Judge (Ad-hoc)Fast Track Court-1, Pathanamthitta.
2. The above case is charge sheeted by the
Circle Inspector of Police, Adoor against the appellants alleging offences punishable under Sections 143, 147, 148, 324, 323, 326, 307 and 379 r/w. Section 149 IPC.
3. The prosecution case in brief is that
on account of previous enmity the accused had formed themselves into an unlawful assembly at 12.15 a.m. on 24/4/99 from the front courtyard of house No.XI/199 of Mangalasserry house in
Pallickal panchayat in the residential CRL.APPEAL No.1376 of 2005 3 ownership of CW1. It is alleged that in prosecution of the common object of that
assembly, the accused with intention to murder CW1 and CW2 committed rioting armed with deadly weapons like iron rods, bamboo sticks, stones etc. knocked at the front door of that house and when CW1, his wife CW3 and their son CW2 came out of the house, they voluntarily caused hurt to them. The first accused assaulted by beating with an iron rod, the second accused beating with a bamboo stick, the third accused voluntarily causing grievous hurt by beating with an iron rod at the upper lip of CW1 whereby one tooth of CW1 on the
upper jaw was lost. It is further alleged that, the fourth and fifth accused beating with wooden stick and sixth and seventh accused pelting stones attacked the injured
persons. It is alleged that, the 6th accused CRL.APPEAL No.1376 of 2005 4 had voluntarily caused hurt to CW2 by beating with an iron rod, the 5th accused beating with a bamboo stick, the first accused fisting at the left eye and when CW3 had come out the first accused had chocked her voluntarily caused to her lower lip, neck and chest and also stolen a gold chain of 3 sovereigns worth Rs.12,000/- from her neck and thereby the accused committed the said offence.
4. To substantiate the case, the
prosecution examined PW1 to PW9. Exhibits P1 to P9 are the documents marked on the side of the prosecution. D1 to D5 are the documents marked on the side of the defence. DW1 to DW3 are the witnesses examined on the side defence. MO1 to MO2 are the material objects.
5. After going through the evidence and documents, the trial court found that, the accused committed the offence punishable under
CRL.APPEAL No.1376 of 2005 5 sections 143, 147, 148, 323, 324, 326, 307 and 379 r/w. Section 149 of the Indian Penal Code (IPC). Separate sentences were also imposed on the accused.
6. Aggrieved by the above conviction and sentence, this criminal appeal is filed.
7. Heard the learned counsel for the appellants and the learned public prosecutor.
8. The learned counsel for the appellants submitted that, even if the entire evidence is accepted, the offences under sections 307 and
326 IPC are not made out. The counsel submitted that, there is only the evidence of PW1, PW2 and PW4. The counsel submitted that, they are all interested witnesses. The counsel submitted that, the ocular evidence is not corroborated with the medical evidence adduced in this case. The counsel submitted that, this is a false case foisted against the accused by CRL.APPEAL No.1376 of 2005 6 the defacto complainant.
9. The learned Public Prosecutor submitted
that, there is sufficient oral and documentary evidence in this case to prove the offences and the trial court is perfectly justified in convicting and sentencing the appellants for the offences alleged. The public prosecutor submitted that, there is nothing to interfere with the conviction and sentence imposed.
10. The point for consideration in this appeal is whether the accused committed the offences under Sections 143, 147, 148, 323, 324, 326, 307 and 379 r/w. Section 149 IPC.
11. Altogether nine witnesses were examined by the prosecution. PW1 is the defacto complainant and the injured. PW2 is the son of PW1. He is also an injured in this case. PW3
is the village officer who is examined to prove Ext.P2 site plan. PW4 is the wife of CRL.APPEAL No.1376 of 2005 7
PW1. She is also an injured. PW5 is the doctor who examined PW1 and PW2. He also proved Ext.P5 wound certificate of PW4 because he is in acquaintance with the signature of the doctor who examined PW4. PW6 is the Head Constable who recorded the first information statement. PW7 is the Sub Inspector of Police, who conducted preliminary investigation. PW8 is also the investigating officer and PW9 is the Circle Inspector of Police, who submitted final report.
12. PW1, PW2 and PW4 deposed before the lower court that the accused formed themselves into an unlawful assembly with dangerous weapon and attacked them. PW1, PW2 and PW4 are
the injured witnesses in this case. The incident happened at midnight. They are the natural witnesses available at the spot. There is nothing to disbelieve the evidence of PW1,
CRL.APPEAL No.1376 of 2005 8 PW2 and PW4. I perused the oral evidence adduced by them along with the medical
evidence adduced by the prosecution. A perusal of wound certificates which are marked as Exhibits P3, P4 and P5 will show that PW1, PW2 and PW4 sustained injuries. As I stated earlier, the alleged incident happened at midnight and the case of the prosecution in this case was that, the accused attacked them and they sustained injuries. In the light of the medical evidence adduced by the prosecution and the oral evidence adduced by PW1, PW2 and PW4, it is clear that, the accused formed themselves into an unlawful assembly and attacked PW1, PW2 and PW4 with dangerous weapons.
13. Then the question is which are the
offences committed by the accused. I perused Exts.P3, P4 and P5 wound certificates. A CRL.APPEAL No.1376 of 2005 9 perusal of Ext.P3 wound certificate will show that, serious injury sustained by PW1
Raveendran Pillai. He sustained lacerated injury on the middle of forehead of 2x.25x.25 Cm., bleeding from upper gum and missing of right median incisor tooth, abrasion on the back of right shoulder of 2x2 Cm. and another abrasion on the back of right hip of 4x0.5 cm. Injuries sustained to the other injured are minor. I perused the evidence of PW1, PW2, PW4 once again to find out whether there is any intention on the part of the accused to commit murder of these witnesses. After going through
the entire oral and documentary evidence adduced by PW1, PW2 and PW4, I cannot agree with the trial court that the accused committed the offence under Section 307 IPC. It is proved from the evidence that, the accused inflicted injury on PW1, PW2 and PW4. CRL.APPEAL No.1376 of 2005 10 The nature of injury and the place where PW1, PW2 and PW4 sustained injury will prove that, the intention of the accused is not to kill them but only to inflict injuries. Therefore, according to me, the offence under Section 307 IPC is not made out. Then the question is whether the offence under Section 326 IPC is made out or not. The prosecution is relying on Ext.P1 wound certificate of PW1 Raveendran Pillai to show that there is fracture because in Ext.P3 wound certificate, it is stated that bleeding from upper gum and missing of right median incisor tooth. According to the prosecution, the accused attacked PW1 using a wooden stick by which he lost one incisor tooth. The alleged incident happened at 12.15 a.m. PW1 was brought to the hospital at 1.50 a.m. on the same day. There is no corresponding injury noted by the doctor on CRL.APPEAL No.1376 of 2005 11 his face. If an incisor tooth of a person is lost because of a heavy blow using a wooden stick on the lip of the injured, definitely, there will be corresponding injury either on lip or other part of the face. A perusal of Ext.P3 wound certificate, there is no correspondent injury. Then how PW3 lost incisor tooth is a matter to be explained by
the prosecution. There is absolutely no explanation regarding the same. In such circumstances, I think, the accused are
entitled the benefit of doubt and according to me the offence under Section 326 IPC is also not made out.
14. The offence under Section 379 IPC is also alleged against the appellants. According to the prosecution, the first accused committed theft of a gold chain of PW4. The gold chain is not seized or recovered. That is CRL.APPEAL No.1376 of 2005 12 not produced before the court. There is only
interested testimony of PW4 and the other witness regarding the loss of gold chain. As I stated earlier, even the theft articles are not recovered and produced before the court. In such circumstances, according to me, the offence under Section 379 IPC is also not made out.
15. In such circumstances, the offences proved against the accused are under Sections 143, 147, 148, 323, 324 r/w. Section 149 IPC.
16. The next question is what is the
sentence to be imposed. The alleged incident happened on 24.4.1999. Now 21 years elapsed. At this distance of time, it is improper to send the appellants to jail. But this court has to consider the fact that PW1, PW2 and PW4 sustained injuries and the prosecution proved that the appellants attacked them at midnight. CRL.APPEAL No.1376 of 2005 13 In such circumstances, I think, the imposition of fine will be sufficient in the facts and circumstances of this case.
Therefore, this criminal appeal is allowed in part in the following manner: i) The conviction and sentence imposed on the appellants under Sections 326, 307, 379 r/w.Section 149 IPC are set aside; ii) The conviction imposed on the appellants under Sections 143, 147, 148, 323, 324 r/w. Section 149 IPC is confirmed; iii) The sentence imposed on the appellants under Sections 143, 147, 148, 323, 324 r/w.Section 149 IPC is set aside; iv) The appellants are sentenced to pay a fine of Rs.1,000/- (Rupees One
CRL.APPEAL No.1376 of 2005 14
thousand only)each under Section 143 r/w. Section 149 IPC. In default of payment of fine, the accused are directed to undergo simple imprisonment for 15 days; v) The appellants are sentenced to pay a fine of Rs.1,000/-(Rupees One thousand only)each under Section 147 r/w. Section 149 IPC. In default of payment of fine, the accused are sentenced to undergo simple imprisonment for 15 days; vi) The appellants are sentenced to pay a fine of Rs.2,000/-(Rupees Two thousand only) each under Section 148 r/w. Section 149 IPC. In default of payment of fine, the appellants are directed to undergo simple imprisonment for 30 days;
CRL.APPEAL No.1376 of 2005 15
vii) The appellants are sentenced to pay a fine of Rs.1,000/- (Rupees One thousand) each under Section 323 r/w. Section 149 IPC. In default of payment of fine, the appellants are directed to undergo simple imprisonment for 15 days. viii) The appellants are sentenced to pay a fine of Rs.7,500/- (Rupees Seven thousand and five hundred only) each under Section 324 r/w. Section 149 IPC. In default of payment of fine, the appellants are directed to undergo simple imprisonment for six months; ix) If the fine amount is realized, an amount of Rs.50,000/- (Rupees Fifty thousand only) should be paid to PW1
CRL.APPEAL No.1376 of 2005 16
and an amount of Rs.10,000/- (Rupees Ten thousand only)each should be paid to PW2 and PW4 as compensation under Section 357 Cr.P.C. The learned counsel for the appellants submitted that, he has got an information from the accused that some of the injured are no more. If that is so, the compensation amount should be paid to the legal heirs of the deceased injured in this case.
Sd/- P.V.KUNHIKRISHNAN pkk JUDGE