IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 CRL.A.No. 245 of 2003() ---------------------------------- SC.312/1999 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM .................... APPELLANT(S): ACCUSED --------------------- T.K.UMMARKHAN, S/O.TAMPI RAWTHER, KADUMARUTHIYIL HOUSE, THRIVENI BHAGOM, EDAKKUNNAM. BY ADV. MR.DINESH MATHEW J.MURICKEN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KANJIRAPPALLY, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.245 OF 2003 ------------------------------ Dated this the 4th day of August, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc)-I, Kottyam in S.C.No.312/1999. The accused was charge sheeted for an offence under Section 307 of the IPC and convicted there under and sentenced to undergo R.I for 5 years and also to pay a fine of Rs.15,000/= and in default, to undergo a further period of imprisonment for one year. There was a direction to pay Rs.10,000/= out of the fine amount to PW2 as compensation under Section 357(1) of the Cr.P.C. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether materials are sufficient to hold that the accused has committed the offence under Section 307 (2) whether the injury sustained would lead to finding of an offence under Section 307 (3) Is the sentence imposed excessive. 3. Points 1 and 2: It is the case of the prosecution that the accused on account of the previous enmity towards PW2 on 16.1.1999 at 2 CRL.A.NO.245/03 about 10 p.m stabbed on the stomach of the injured which resulted in an injury to his umbilicus and protruding omentum. It is also stated that the accused stabbed the injured uttering that he would kill him. Therefore, prosecution was laid under Section 307 of the IPC. 4. The prosecution had examined Pws 1 to 9 and Exts.P1 to P10, C1 and C2 and Mos 1 to 4 were marked. On an analysis of the evidence, the court below found the accused guilty and convicted him there under. 5. The learned counsel for the appellant would contend that materials available are not sufficient to prove the guilt of the accused. Pws 1 and 6 are the witnesses. PW2 is the injured. He had deposed before the court that on the eventful day at 9.45 a.m while the injured was returning after enquiring about his friend Rajesh, the accused uttered that “you will not allow me to play cricket. I will not allow him to live and also I will kill you and take out your intestine”. After that, he took a knife from his waist and stabbed the injured. It is deposed that he cried allowed that Umar Ghan had stabbed him and after a few minutes he lost his sense and thereafter he was taken first to the Taluk hospital 3 CRL.A.NO.245/03 and later to the Medical College Hospital. The motive suggested is regarding some misunderstanding with respect to the game of cricket. In the cross examination, he would submit that his friend Rajesh was undergoing treatment and he was coming back after seeing him and while he was on his way back, the accused attacked him and the injuries were sustained. In spite of searching cross examination, nothing is found to discredit his evidence regarding the incident. 6. PW1 is his brother. He had also deposed regarding the incident and protruding of the intestine of the injured. He had also spoken about the factum of taking the injured to the hospital and he also identified MO1 knife used for the stabbing. He had been cross examined at length. It is seen that there was some misunderstanding between the injured and the accused regarding the play of cricket. He had deposed that there was street light on the road and bulbs were burning in the neighbourhood shops. He speaks about the factum of taking the injured to the taluk hospital and other materials. Nothing is there to show that he is giving any false evidence in this case. 7. PW6 is an independent witness. He also speaks 4 CRL.A.NO.245/03 about the incident and there was a threat by the accused to kill the injured and he saw the accused inflicting the stab wound on the injured and thereafter had left the place by running away. His evidence also is not shaken very much in the cross examination. So, the evidence of PWs 1, 2 and 6 would reveal that on 16.1.1999 at about 9.45 p.m the accused had made a hue and cry and thereafter had stabbed the injured - PW2 on his stomach which resulted in protrusion of intestine. So, the said factum stands proved. 8. Before referring to the question of law, I will refer to the medical evidence as well in this case. The medical certificates are Exts.P2 and P3. In Ext.P2, it is recorded that there is a stab injury on abdomen just to the left of umbilicus. The omentum protruding out from the wound. Wound not explored. It was from the taluk head quarters hospital the patient was referred to the Medical College Hospital at Kottayam. 9. Ext.P3 is the certificate issued by the Kottayam Medical College which would reveal that the injured had a penetrating injury with the omentum protruding. Explorating, laparotomy was done. There were injuries to inferior venacava, 5 CRL.A.NO.245/03 transverse colon and jijum. He was admitted in the hospital on 16.1.1999 and discharged on 27.1.1999. Doctors were examined as PWs 3 and 4. Both of them had spoken about the injury sustained and it is also deposed by them that the injury can be caused with a weapon like MO1. The evidence of PW4 also speaks about the factum for the transverse colon means a part of large intestine. The medical report reveals that the omentum was protruding. Omentum is an apron-like fold of peritoneum (the delicate lining membrane of the abdominal cavity which also coveres the abdominal organs) attached to a border of the stomach. Greater omentum - this large, apron-like fold hangs down from the lower boarder of the stomach, in front of the small intenstive, then turns upwards to enclose the transverse portion of the large intestine, and finally proceeds backwards to become attached to the rear wall of the abdomen. As seen from the report of the Kottayam Medical College Hospital, a stab injury was caused including an injury to the large intestine. So, the injury sustained is of a very serious nature. 10. The learned counsel for the appellant strongly contends before me that the injuries are not of grievous nature 6 CRL.A.NO.245/03 and that he was only a patient for a period of 11 days and therefore, an offence under Section 307 never will lie and if it is accepted, it will only cover Section 324 of the IPC. A look at Section 307 of the IPC would show that who ever does in fact with such by act caused death then he would be guilty of murder than he shall be punished with imprisonment. It is always not the gravity of the injury which decides intention of a person to commit the crime especially to kill a person. Here the accused does not have any provocation or anything of that sort. To wait for the injured to come and utters something like that he would kill him, takes a knife from his waste and stabbed on the stomach. It is a very delicate part of our body wherein under ordinary circumstances unless luck is there the injury may lead to death. The force of the stab can be easily seen from the fact that omentum was protruding out and interior part like big intestine in the body also got injured on account of the stab. So, under ordinary circumstances, it might have resulted in serious crime of death but fortunately it did not happen and so one cannot hold that the injury inflicted was of a superficial or minor nature which would only attract an offence under Section 7 CRL.A.NO.245/03 324 of the IPC. The learned counsel had brought to my notice a decision of the apex Court reported in Ramesh v. State of U. P (1992 Crl. L.J.609). It was a case where there was a single injury on the back of the neck. The Apex Court held that the conviction can be altered into one under Section 324. The Apex Court made it very clear that we do not propose to decide it as a matter of law. It was only on the peculiar facts and circumstances the court directed it to be converted into Section 324 of the IPC. The learned counsel also had relied on a decision of the Apex Court reported in Pashora Singh v. State of Punjab(AIR 1993 SC 1256). It was a case where the Apex Court found that the accused persons having no intention of causing death of any person nor any injury found on deceased was sufficient in the ordinary course of nature to cause death. The Apex Court extracted the injuries in Para 6. They were incised wounds of small dimension on the scalp. The court found that there was medical evidence to show that the injuries were not serious so as to cause death. Under those circumstances, the Apex Court converted the offence to one under Section 326 read with Section 34 of the IPC. It has to be remembered that even in that case, the Apex Court had 8 CRL.A.NO.245/03 considered it as a grievous injury so as to attract Section 326 of the IPC. 11. From the materials available, I have absolutely no hesitation to hold that the injuries caused are of very serious nature and a person causing such an injury under ordinary circumstances knows that it is likely to cause death. Therefore, such is the act, one has to hold that Section 307 of the IPC will apply. Therefore, I do not venture to disturb the finding of guilt under Section 307 of the IPC. Point No.3: 12. Now regarding the sentence. Two young people on account of misunderstanding regarding inclusion or exclusion to play in a cricket match are before the court, in which one sustained injury and the other standing in the accused’s dock. Both of them are hardly aged 25 years. The learned counsel would persuade me to show maximum leniency and I feel to do so as it is seen in the decision reported in Joshi, S/o. Urumise v. State of Kerala (1996 (1) Crl. L.J.143). It was also a case where there was a serious injury suffered by the injured on the abdomen. It was a case where the accused, a young man, having wife, mother and two 9 CRL.A.NO.245/03 children and was inclined to compensate victim substantially. The court below had convicted him for 5 years imprisonment. This Court took a lenient view and sentenced him to pay a fine of Rs. One lakh in that case and to pay Rs.80,000/= out of which as compensation to the victim. The learned Judge therein has also relied upon a passage. “In the view of the Supreme Court it is a measure of responding appropriately to crime as well as of reconciling the victim with the offender and it is a constructive approach to crimes”. 13. After bestowing my best attention and on hearing the learned counsel for the appellant as well as the Prosecutor, I am inclined to show leniency by not totally converting it into to fine but reducing the term of imprisonment from a period of 5 years to term of imprisonment for one year. At the same time I am enhancing the fine from Rs,15,000/= to Rs.50,000/= and directing the court below to pay an amount of Rs.45,000/= as compensation to the victim – PW2. If the accused does not pay the fine, he may have to undergo default sentence for a period of two years. 14. In the result, the criminal appeal is disposed of as follows: 10 CRL.A.NO.245/03 1. The finding of guilt under Section 307 of the IPC is sustained. 2. The sentence is modified and the accused is sentenced to undergo R.I for a period of one year and to pay a fine of Rs.50,000/= and in default to undergo S.I for two more years. If the amount is realised, the amount of Rs.45,000/= be paid to the victim-PW2 as compensation as envisaged under Section 357(1) of the Cr.P.C. The accused shall be entitled to set off as contemplated under Section 428 of the Cr.P.C. The lower court shall execute the sentence. M.N. KRISHNAN, JUDGE cl 11 CRL.A.NO.245/03 M.N. KRISHNAN, J. --------------------------- CRL.A.NO.245 OF 2003 ------------------------------ 4th day of August, 2009 JUDGMENT