IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 CRL.A.No. 2144 of 2009(C) ------------------------- SC.295/2008 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA .................... APPELLANT(S): ----------------------- SASIDHARAN, C.NO.3990, CENTRAL PRISON, THIRUVANANTHAPURAM-12. BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)[STATEBRIEF] RESPONDENT(S): ---------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR PUBLIC PROSECUTOR SRI.B.JAYASOORYA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.Appeal.No.2144 of 2009 = = = = = = = = = = = = = = Dated this the 18 th day of November, 2009 JUDGMENT In this appeal preferred from the Central Prison, Thiruvananthapuram, the appellant who was the sole accused in S.C.No.295 of 2008 on the file of the Addl.Sessions Court, Fast Track-I, Ad hoc, Pathanamthitta, challenges the conviction entered and the sentence passed against him for an offence punishable under Section 308IPC. 2. The case of the prosecution as unravelled by the oral and documentary evidence in the case is as follows:- From the year 2004 onwards the appellant (Sasidharan) and PW2(Krishankumari) were residing together as man and wife. The appellant is a mason by avocation. He is the 2nd husband of PW2, who is his 2nd wife. From October, 2007 onwards they were residing in a rented house at Parumala. In December, 2007, on one night, the appellant slapped PW2 after consuming liquor. PW2 then left the company of the appellant and went to Crl. Appeal No.2144/09 2 Kalamassery and was working there as a housemaid. On 4.01.08 she returned to Parumala for making payment of the rent. She, however, did not return to Kalamassery. The accused was at that time staying away from PW2. On 10.1.2008 after collecting clothes from different houses for the purpose of ironing, PW2 returned back to her rented house at Parumala. On the way she had gone to Thikkappuzha junction for buying meals. That junction is situated to the east of Panayannur Kavu Temple. At that time the accused came there and caught hold of PW2 by her hair and hit on her head with a trowel. PW2 sustained an injury on the left side of her head just above the left ear. She fell down. The accused again beat her repeatedly. When PW2 cried aloud, PW3 who came along the road in the company of CW3 (Kunjachan) rushed to the scene. By that time the appellant took to his heels after throwing MO1 trowel away. PW3 and CW3 took injured PW2 to the St. Gregorius Hospital, Perumala from where PW1 (Dr. Abrham Mathew) after giving first aid to PW2 referred her to the Government Hospital, Thiruvalla. On receipt of Crl. Appeal No.2144/09 3 intimation from the Government Hospital, Thiruvalla, PW4, the Sub Inspector of Police, Pulikeezhu Police Station, proceeded to the said hospital from where PW2 gave Ext.P2 First Information Statement to PW4 at 6 p.m. PW4 registered the case as Crime No.14 of 2008 under Section 308 IPC. The accused was arrested on 10.1.2008 itself at 8.30 p.m by PW4. During the course of investigation PW4 prepared Ext.P5 Scene Mahazar at 11.30 am on 11.1.2008. He seized MO1 trowel from the scene of crime. PW5 is an attestor to Ext.P5 Scene Mahazar. After the conclusion of investigation, PW5 laid the charge against the appellant. 3. PW1 is Dr.Abraham Mathew who is the doctor who examined PW2 from St.Gregorious Hospital, Parumala and issued Ext.P1 Wound Certificate as per which he noted the following injuries:- “ Incised wound 7x2 cm on the frontal region of scalp and multiple abrasions.” 4. PW2(Krishnakumari) is the injured woman. PW3 (Soman) is the occurrence witness who along with CW3 had come along that way to the scene of occurrence. It was he and Crl. Appeal No.2144/09 4 CW3 who took PW2 to the hospital. PW4 (K.Salim) was the S.I. of Police Pulikkeezhu Police Station. After recording Ext.P2 First Information Statement of PW2, he had prepared Ext.P2(a) Body Note pertaining to PW2 to the effect that she had an injury on the head and the same was seen bandaged and she was sitting on a cot in the female ward of the hospital. PW5(Manu) is an attestor to Ext.P5 Scene Mahazar as per which MO1 trowel was seized from the place of occurrence. Eventhough this witness supported the prosecution by admitting his signature to Ext.P5 Mahazar, he stated that he did not see MO1 trowel being seized by the Police. 5. I heard Adv.K.K.Unni, the learned counsel appearing for the appellant on State Brief and the learned Public Prosecutor. 6. The learned counsel for the appellant made the following submissions before me in support of his fervent plea for the acquittal of the appellant:- The definite case of PW2, the injured is that she was struck 3 times on her head with MO1 trowel. Likewise PW3, the independent eye witness also deposed that the appellant cut PW2 twice on the head. But PW1 the Doctor had only noted one Crl. Appeal No.2144/09 5 incised wound on the frontal region of the scalp. If PW2 was struck with MO1 trowel three times as stated by PW2, the injured, one would have definitely expected three injuries on the head. The rest of the injuries were all multiple abrasions which cannot be caused by hitting with MO1 weapon. In Kapil Dev Mandal v. State of Bengal (AIR 2008 SC 533) the Apex Court has observed that eventhough in cases where the medical and ocular evidence are at variance, oral evidence of eye witness has to receive primacy since medical evidence is basically opinionative, when the court finds that the testimony of eye witnesses whose testimony is totally inconsistencies to that given by the medical experts, then the evidence is appreciated in a different perspective. In Asok Kumar Mondal v. Samir Kumar Mondal and another (AIR 2007 SC 754), the Apex court had in paragraph 5 of the judgment taken note of the discrepancy between the injuries as also the size of injuries as stated by the Doctor and the ocular account of the witnesses to confirm the order of acquittal recorded by the High Court in Asif Mamu v. State of Madhya Pradesh (AIR 2009 SC 600). The Apex Court discarded the ocular account of the eye witnesses in Crl. Appeal No.2144/09 6 preference to the medical evidence to hold that the deceased did not have injuries of such nature as to indicate that his death was as a result of a fall from the 1st floor to the ground floor. The court below had thus overlooked the medical evidence to give credence to the oral testimony of PWs.2 and 3. 7. I am afraid that I cannot agree with the above submissions. It is true that PW2 has deposed that she was struck thrice on the head with MO1 trowel. PW3 also deposed that the accused/appellant had cut PW2 twice on the head with MO1 trowel. But as observed by the Apex Court in Kapildev Mandol's case supra, the conflict between oral testimony and medical evidence can be of varied dimensions and shapes. The Supreme Court categorised the types of cases into three. In the first category of cases, there is total absence of injuries which were normally caused by a particular weapon. In the 2nd category, though injuries found on the victim are of the type which can be inflicted by the alleged weapon; but the size and dimensions of the injuries do not exactly tally with the size and dimension of the weapon. The third category of the cases are those where the injuries found on the victim are such that they Crl. Appeal No.2144/09 7 are normally caused by the weapon of assault but they are not found on that portion of the body where they were deposed to have been caused by the eye witnesses. The Apex Court observed that the same kind of inference cannot be drawn on the three categories of cases when there is apparent conflict in the oral and medical evidence. While in the first category it may legitimately be inferred that the oral evidence regarding assault was not truthful, in the second and third category no such inference can straightaway be drawn having regard to the manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witness to see the occurrence such as distance, presence of light and many other similar factors relevant for judging the reliability of ocular testimony. Thus, merely because there is only one incised injury on the scalp of PW2, it does not follow that she was not struck more than once on the head with MO1 trowel. PW1, the Doctor has denied the suggestion put to him that MO1 weapon could not produce an incised wound of 7cm length. It is relevant to note in this connection that there is no evidence to show that all the edges of MO1 trowel are either Crl. Appeal No.2144/09 8 sharp or blunt. After all it is a trowel, the edges of which may not be as sharp as that of a knife or a chopper. Moreover, much depends on the exact portion of the weapon which may come into contact with that part of the body of PW2. There is no suggestion that the above incised injury on the head of PW1 was either self-inflicted or sustained in any other manner. 8. The court below which had the unique advantage of seeing the witnesses and assessing their credibility has chosen to believe the testimonies of PWs.2 and 3. As rightly concluded by the court below, the accused was voluntarily causing grievous hurt to PW2 using a trowel. PW1 the Doctor has credibly deposed that if the patient was given proper treatment in time the injuries noted in Ext.P1 wound certificate were sufficient to cause the death of the patient in the ordinary course. There was thus evidence to show that there was an attempt to cause the death of PW2 by assaulting her with MO1 which is a deadly weapon. In this connection, it is significant to note that PW1 had only very little time to attend PW2 since after giving first aid to PW2 he was eager to refer her to the Government Hospital, Thiruvalla. Hence, it is quite possible that while preparing Crl. Appeal No.2144/09 9 Ext.P1 wound certificate PW1 had not given meticulous attention to the injuries found in the body of PW2. That also explains the case of the prosecution. 9. In the light of the foregoing discussion, the conviction entered against the appellant does not call for any interference. The conviction is accordingly confirmed. 10. What now survives for consideration is the question regarding the legality and extent of the sentence imposed on the appellant. Having regard to the facts and circumstances of the case, I am of the view that for the conviction under Section 308 IPC the appellant need undergo rigorous imprisonment for two years and instead of fine he has to pay compensation to PW2. Accordingly, the sentence imposed on the appellant by the court below is as follows:- For the conviction under Section 308 IPC, the appellant is sentenced to rigorous imprisonment for two Crl. Appeal No.2144/09 10 years and to pay a sum of Rs.10,000/-(Rupees ten thousand only) as compensation to PW2 under Section 357(3) Cr.P.C within three months from today, failing which he shall undergo default sentence by way or rigorous imprisonment for three months. In the result, this appeal is disposed of confirming the conviction entered but modifying the sentence as above. Dated this the 18 th day of November, 2009. V. RAMKUMAR, JUDGE sj