IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 CRL.A.No. 685 of 2002() ---------------------------------- SC.162/2001 of SESSIONS COURT (SPL. JUDGE), KOTTAYAM .................... APPELLANT(S): ACCUSED: ---------------------- MANOJ, S/O. KOCHUKUTTAN, MUTHUPEZHATHIL VEEDU, MARAVEKKALLU BHAGOM, THALANADU, POONJAR, VADAKKEKKARA VILLAGE. BY ADVS.MR.P.N.PURUSHOTHAMA KAIMAL MR.LIJI.J.VADAKEDOM RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.MP. NO.5754/2002 IN CRA. NO. 685/2002 DISMISSED 23/07/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE TSS M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 685 OF 2002 = = = = = = = = = = = = = = = Dated this the 23rd day of July, 2009. J U D G M E N T This appeal is preferred against the conviction and sentence passed by the Sessions Judge, Kottayam in S.C.162/01. The accused was charge sheeted for the offences u/Ss. 326 IPC and S.3(1)(x) of the Schedule Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. the accused was found guilty u/s 326 IPC and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.10,000/- in default of which to undergo further imprisonment for a period of three months. There was also a direction to give Rs.5,000/- to the injured. It is against that decision the accused has come up in appeal. 2. The points that arise for determination are; (1) Whether there is sufficient evidence to establish that the accused has committed the offence u/s 326 of IPC. (2) Is there anything to interfere with the decision rendered by the Court below? Crl. Appeal NO. 685 OF 2002 -2- Points: 3. Heard the learned counsel for the appellant and the Prosecutor. The learned counsel for the appellant had elaborately argued the matter by taking me through the documentary as well as oral evidence available in the case. The Prosecutor also submitted that there is no ground to interfere with the decision rendered by the Court below. It is case of the prosecution that PW6, the defacto complainant who was to get some money from the accused on account of the work which he had done went near the barber shop where the accused was working and called him outside and requested him to pay wages. The accused went inside his shop came out with an iron rod and attempted to hit him on the head which the complainant warded off. But it struck on his left hand resulting in the fracture of ulna and therefore it is submitted that the accused has committed the offence u/s 326 IPC. The material witnesses are PWs.6 to 8, i.e. PW6 injured and PWs.7 and 8 independent witnesses. PW5 is the doctor and others are Investigating Officers and the person who is alleged to Crl. Appeal NO. 685 OF 2002 -3- have seized MO1 iron rod. A reading of the evidence of PW6 would show that he will pretend ignorance when inconvenient questions are put to him. It is submitted that he had gone to the front of the barber shop and called the accused and thereafter the accused came, listened to him then went inside and took the iron rod and beat him. According to him large number of persons had seen the incident but only CW2 and 3 according to him are the known persons. He also identifies MO1 as the rod used for beating him. It is also stated that he had gone to the shop of the accused for asking the money for the work which is alleged to have been done about 6 months prior to the date of incident. When these things were put to him in the cross examination he pleads ignorance and a question is put to him whether he was working on behalf of one Rajan and there was no connection between the accused and him he denies it when he was asked whether the accused was beaten him with an iron rod on his head, he would pretend that he does not remember. He would further state that when he was beaten there was no injury on the left hand. Crl. Appeal NO. 685 OF 2002 -4- He does not remember whether he had stated who had caused him the injury. Suggestions are put to him to the effect that he went inside the shop where the accused was working and created the problem and therefore he was pushed out and in the process he fell down and he sustained injuries. PW7 is one Joyce. According him he is the Secretary of the library and he would submit that he was standing outside the library and it was at that time PW6 came and called the accused and thereafter describes about the incident. He also identifies MO1. He was asked the question in the cross examination that as he not stated that he was inside the library at that time he would deny the same but has been confronted with 161 statement and it was marked as Ext.P1 which would reveal that he has given a statement that he was sitting inside the library. Sitting inside the library and standing on the road are two different matters and ordinarily a person who sits inside the room does not listen to or see other things around him but a person who stand outside may have the possibility of knowing anything which had happened on the road outside. Crl. Appeal NO. 685 OF 2002 -5- So change of version shifting from inside to outside the library on the road is difficult to believe. I may say it is a very material contradiction. Though he would say that he had taken him to the hospital, the doctors evidence would show that the accused had gone by himself to the hospital. So the evidence of PW7 does not inspire much confidence especially on account of the medical evidence to which I will refer later. 4. PW8 is another independent witness who is said to be a driver and according to him he had parked the jeep near the library and had seen the incident. Questions are suggested to him that the incident had taken place at the back of him and therefore there was improbability of seeing the incident. His contradictions are also marked as Ext.D2. 5. Now the most important and crucial evidence in this case is the medical evidence. The doctor has been examined as PW5. The wound certificate is marked as Ext.P5. It would reveal that he had gone to the hospital by himself and he does not name any person before the doctor regarding the cause of injury. It is revealed that he had a swelling crepitus on the Crl. Appeal NO. 685 OF 2002 -6- middle of the left forearm and an abrasion on the right hand. The alleged weapon seized in this case is having a length of 40 cms and a circumference of 5 cms. and it can be seen that there are cut marks in that iron rod. If a person attacks with such a weapon that too with an aggressive speed the corresponding impact will be more and naturally and necessarily there should have been some external corresponding injury on the back side. I say so because in all cases it may not be necessary for the reason if it is a weapon which does not have any sharpness or cutting. But here the iron rod is having a circumference of 5 cm with cuts and when comes into contact with skin potion of a human being necessarily there must be sustainment of injury. PW5 when examined has deposed before Court that when some force is applied with a weapon like MO1 there is possibility of causing injury on that portion. He also answered to the pint pointed question that there is no corresponding external injury and he would add it is impossible. Thereafter when the Court put the question he would add that it is not necessary in such a Crl. Appeal NO. 685 OF 2002 -7- situation to cause corresponding external injury. So the evidence of Doctor really creates two views. One is that in all probability sustainment of an external injury and secondly it is not necessary. It is in this back ground we have to consider about the recovery of the material object. It is deposed by PW6 and others in Ext.P1 statement that the accused had gone back to his shop with an iron rod. But it is alleged that the iron rod is recovered from the house of the accused which is a kilometer away from the cite of incident and it is also to be stated that the allegation is that the father of the accused had produced the same and given to him is highly suspicious and the evidence does not lend any credence for the reason that as I stated earlier it does not look truthful. So the absence of the corresponding external injury looms large in this case that the injury has been caused with the usage of an iron rod as contended by the prosecution. When it is so an offence u/s 326 may not be strictly lie. But when the accused was questioned u/s 313 Cr.P.C. he had given clear explanation to the effect that the accused had entered the Crl. Appeal NO. 685 OF 2002 -8- barber shop conducted by the father of the accused and that he was available at that time. The father told the complainant that the amount has been paid to the person who had sent him and directed him to clear out. Then the complainant abused the father and when the accused questioned that, he was also abused. Then the accused would state that he had forcibly pushed and in that push he had fallen etc. stating that the fall has caused the injuries. There was a wordly quarrel between the complainant and the accused is proved. When a person is pushed and he falls down necessarily the impact will be high and one cannot rule out the possibility of sustainment of such an injury on the complainant. The cause for the fall is on account of the push done by the accused. Therefore certainly it will attract S.323 IPC. Therefore from these discussions I hold that the accused is not guilty of the offence u/s 326 and he is found guilty u/s 323 IPC. 6. So far as it relates to the sentence it has to be stated that the complainant is the person who had started the process of quarrel. Though he has not used any force he had Crl. Appeal NO. 685 OF 2002 -9- been primarily responsible for the alleged incident. So suffice to say that the accused need not be sentenced to undergo imprisonment in jail. In the result the appeal is disposed of as follows. (1) The conviction and sentence passed u/s 326 IPC is set aside. (2) The accused is found guilty u/s 323 IPC and is convicted thereunder and sentenced to pay a fine of Rs.1,000/- and in default of payment of fine he has to undergo simple imprisonment for a period of three weeks. (3) If the fine amount is realised it shall be disbursed to the complainant under Section 357(1) of the Criminal Procedure Code. M.N. KRISHNAN, JUDGE. ul/- Crl. Appeal NO. 685 OF 2002 -10- M.N. KRISHNAN, J. = = = = = = = = = = Crl. Appeal NO.685 OF 2002 = = = = = = = = = = = J U D G M E N T 23rd July, 2009