IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 20TH JULY, 2011 / 29TH ASHADHA, 1933 CRL.A.No. 1604 of 2010(A) ----------------------------------- (SC.172/2008 of IV ADDL.SESSIONS COURT, ERNAKULAM ) .................... APPELLANT(S): -------------------- RAJAPPAN @ RAJU, S/O.CHANDRASEKHARAN, C.NO.8039, CENTRAL PRISON, VIYYUR, THRISSUR. BY ADV. LUIZ GODWIN D'COUTH(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/7/2011 THE COURT ON 20/07/2011 DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.A.No. 1604 of 2010 ---------------------------------------- Dated this the 20th day of July, 2011 J U D G M E N T By judgment dated 1.2.2010 in S.C.No.172/2008, the court of IVth Additional Sessions Judge, Ernakulam has found that the accused therein, who is the appellant herein, is guilty under Section 307 of I.P.C. and accordingly, he is sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.10,000/-. The default sentence is fixed as one year rigorous imprisonment. It is also directed that on realisation of the fine amount, the same shall be given to PW2 as compensation under Section 357(1)(b) of the Cr.P.C. It is the above verdict, conviction and sentence challenged in this appeal. 2. The prosecution case is that out of the enmity of the accused against PW2, who questioned regarding the urination by the accused in the water kept for washing hands at the premises of the toddy shop of which he is the Manager, at 5 p.m. on 29.11.2004, the accused by uttering the words “If you play with me, I will cut down and kill you”, waved the chopper kept by him against PW2 which struck against his left earlobe and left cheek resulting in fatal injuries and thus attempted to murder PW2 and thereby, the accused CRL.A.NO.1604 of 2010 :-2-: committed the offence punishable under Section 307 I.P.C.. On the above allegation, Crime No.1256 of 2004 was registered in the Aluva Police Station and after investigation, the Police preferred a report before the Judicial First Class Magistrate Court -I, Aluva whereupon C.P.No.23 of 2007 was instituted. The learned Magistrate, by his order dated 24.3.2008 in C.P.No.23/2007 committed the case to the Sessions Court where the same received as S.C.No.172/2008 which is subsequently made over to the trial court for disposal. On appearance of the accused, a formal charge under Section 307 of I.P.C. was framed, which read over and explained to him, who in turn denied the charge, and pleaded not guilty which resulted in the further trial during which Pws.1 to 11 were examined and Exts.P1 to P13 were marked and Mos.1 to 7 were identified from the side of the prosecution. No evidence either oral or documentary was adduced from the side of the defence. On conclusion of trial, the trial court has found that the accused is guilty for the offence charged against him and accordingly, imposed the sentence which I indicated earlier. It is the above conviction and sentence and the judgment of the trial court challenged in this appeal. 3. As the appellant is undergoing imprisonment in pursuance of the impugned judgment, he preferred the appeal from jail, on receiving which, as CRL.A.NO.1604 of 2010 :-3-: directed by this Court, the Registry appointed Sri.Luiz Godwin D'Couth, counsel from the panel of State Brief to prosecute the appeal on behalf of the appellant. Thus, I have heard Sri.Luiz Godwin D'Couth, learned counsel appearing for the appellant as well as Sri.P.A.Salim, learned Public Prosecutor for the State. 4. In order to substantiate the prosecution case, the prosecution mainly depends upon the evidence of Pws.1 and 2 and also the other evidence adduced by it. The crime was registered on the basis of Ext.P1 First Information Statement given by PW1. When PW1 was examined, he had deposed in terms of Ext.P1 statement. PW1 has not claimed that he had witnessed the actual inflicting of injury by the accused on PW2, but in his evidence, he had deposed in detail regarding all incidents that had taken place before and after the injury sustained by PW2. PW2 the injured has also deposed in terms of the prosecution case. MO1 chopper with which the accused inflicted the injury was identified by PW2. He had also identified Mos.2,3,6 and 7 which are respectively dhoti, shirt, banian and underwear worn by PW2 at the time of the occurrence. Mos.4 and 5, which are shirt and lungi, worn by the accused at the time of occurrence. PW3 is the attester to Ext.P2 scene mahazar under which MO1 chopper was recovered. PW4 is the attester to Ext.P3 mahazar by which CRL.A.NO.1604 of 2010 :-4-: Mos.2 ,3,6 and 7 were recovered. PW5 is the Doctor who issued Ext.P4 wound certificate and who examined PW2, the injured. PW6 is another attesting witness to Ext.P5 mahazar under which Mos.4 and 5 were recovered. PW7 is also an attester to Ext.P5 mahazar. PW8 is the Village Assistant who prepared Ext.P6 site plan. PW9 is the S.I. of Police, Aluva Police Station, who recorded Ext.P1 F.I.statement of PW1 and registered crime under Ext.P7 F.I.R. It was PW10, the C.I. of Police, Aluva, who conducted the investigation and prepared Ext.P2 scene mahazar by which MO1 was recovered. It was PW10 who arrested the accused and produced before the court. Ext.P1 arrest memo, Ext.P10 inspection memo were proved through PW10. Ext.P8 is the report filed by him showing the full name and address of the accused. Ext.P3 was also prepared by PW10 for the recovery of Mos.2,3,6 and 7. It was PW10 before whom the accused made confession statement consequent to which Mos.4 and 5 were recovered under Ext.P5 mahazar. Ext.P5(a) is the disclosure statement, which is the relevant portion extracted from the confession statement. Exts.P11 and P11(a) property lists were marked through PW10. Exts.P12 and P12(a) forwarding notes were also proved through PW10. Ex.P13 is the chemical examination report issued by the Assistant Chemical Examiner to Government of Kerala reporting that presence of human blood is detected in Mos.1 to 3 and CRL.A.NO.1604 of 2010 :-5-: 6 and 7 and blood in MO4. PW11 is the successor in office of PW10, who continued the investigation and laid the charge. Ext.P13 report and Ext.P6 site plan and Ext.P4 wound certificate were collected by PW11. Though the prosecution has cited several charge witnesses, CWs.5,11 and 14 are given up by the prosecution and CWs.3,4 and 7 were reported dead. It is on the basis of the above evidence and materials, the trial court found that the appellant/accused is guilty under Section 307 of I.P.C. 5. Learned counsel for the appellant vehemently submitted that the prosecution has failed to prove the case against the accused beyond reasonable doubt. In order to substantiate the above ground, learned counsel further submitted that in the present case, no independent witness was examined except the interested person and according to the learned counsel, PW1 is totally an outsider and not an eye witness to the incident. According to the learned counsel, regarding the time of occurrence and the treatment given to PW2, there is no convincing evidence. In support of the above submission, the learned counsel submitted that PW5, the Doctor is not in a position to say as to when the injured was examined. It is also the case of the counsel that PW5 has stated that the injury noted on PW2 can be caused by a glass piece. Another point raised by the learned counsel is that the shirt worn by the accused is not CRL.A.NO.1604 of 2010 :-6-: containing any blood stain and therefore, it cannot be said that the accused is responsible for the injury sustained by PW2. The next point raised is that regarding the seizure of Mos.2,3,4,6 and 7, there is no independent evidence and the prosecution has chosen to cite the son of the injured to prove the seizure. Another point raised by the learned counsel is that the available materials and evidence are not sufficient to hold that the accused has inflicted the injury with the intention to murder PW2 and therefore, Section 307 of I.P.C. is not at all attracted. On the basis of the above points and in the light of the admissions made by Pws.1 and 2, learned counsel submitted that in the toddy shop in question, quarrel among the drunkards is frequent and therefore, in the absence of any cogent and independent evidence, it cannot be held that PW2 sustained injury from the accused and therefore, the conviction and sentence imposed by the trial court is liable to be set aside and the accused is entitled to get an acquittal. 6. On the other hand, Sri.P.A.Salim, the learned Public Prosecutor submitted that there is no discrepancy in the evidence of Pws.1 and 2 and PW1 is the person, who witnessed the entire incident, except inflicting the injury on PW2 and his evidence corroborates the evidence of the injured PW2. Therefore, the prosecution has succeeded in establishing the occurrence in CRL.A.NO.1604 of 2010 :-7-: which PW2 sustained injury from the hands of the accused. According to the learned Public Prosecutor, the accused waved MO1 chopper as deposed by PW2 when he questioned the shameful act of the accused, urinating into the water in the basin kept in the toddy shop for hand wash which infuriated the accused to turn against him and the injury is sustained, as per the medical evidence, on the vital part of the body of PW2 and from the above circumstances, the intention can be gathered. Thus, according to the learned Public Prosecutor, the trial court is perfectly correct and legal in convicting the accused and therefore, no interference is warranted. 7. I have carefully considered the arguments advanced by both the counsel for the appellant as well as the learned Public Prosecutor and I have carefully perused the evidence and materials on record. 8. As I indicated earlier, the specific prosecution case is that at about 5 p.m. on 29.11.2004, the accused, inside the hall room of toddy shop No.2 situated in Aluva-Parur Public Road near Purappallikavu bus stop, inflicted fatal injury on the left earlob and cheek of PW2 with a knife resulting in fatal injury and such injury was inflicted with a view to kill PW2 since he had questioned the accused regarding the urination in the water kept for washing hands. In the light of the facts and circumstances involved in the case and the CRL.A.NO.1604 of 2010 :-8-: evidence referred to above, and in view of the rival contentions, the question to be considered is whether the trial court is justified in its finding that the accused inflicted injury on the body of PW2 with the intention to cause his death and whether the findings and the judgment of the trial court are liable to be interfered with on any ground. As indicated earlier, the investigation was set in motion on receiving Ext.P1 F.I.statement from PW1 consequent to which PW9 registered Ext.P7 F.I.R. and PW10 undertook the investigation. When PW1 was examined, he had deposed in terms of Ext.P1 F.I. statement. Going by the evidence of PW1, it can be seen that he was available in the toddy shop when the incident has taken place and though he has not seen the actual act of accused inflicting the injury, he had deposed all other acts before and after the said incident. It was PW1 along with Cws.3 and 4 tried to catch out the accused and hold him. According to him, he launched Ext.P1 F.I.statement at about 7.30 p.m. when he was returning from the hospital after admitting PW2. According to PW1, on the date of incident at about 5 p.m., he was supplying curries inside the toddy shop and the accused came in the toddy shop and talked with PW2, the shop manager. He had deposed that the subject matter of the talk was that the accused urinated in the water kept outside the shop for washing the hands and there was exchange of words. He had stated that he had heard the CRL.A.NO.1604 of 2010 :-9-: accused threatening PW2 that he would again repeat the same act. Any how PW1 fairly deposed before the court that he had seen PW2 standing with his left earlobe broken. PW1, unequivocally deposed that the injury was the result of cut with MO1 and it was the accused, who inflicted the injury. According to him, immediately after the occurrence, the accused quit the place by jumping over the compound wall on the southern side. PW1 identified MO1 weapon, Mos.2 and 3, the cloths worn by the victim (PW2), Mos.4 and 5 the cloths worn by the accused. Though PW1 was cross-examined, extensively nothing was brought on record to discredit his version. The other evidence to prove the incident is that of the evidence of PW2- the injured. During the examination of PW2, he had given a clear account regarding the entire incident that had taken place at about 5 p.m. on 29.11.2004. According to PW2, the accused came and asked to supply toddy on credit, which was refused by him. PW2 says that the accused is a person of habit that, if toddy is not given on his demand, he used to take it by force. It is also the version of PW2 that the accused, who could not resist the temptation to drink, had taken toddy from some drunkards in the toddy shop. According to PW2 , when he asked the accused about the shameful act, he was doing and when he directed him to go out, the accused, instead of quitting the place, went to the back side of the shop and thereafter, PW2 heard CRL.A.NO.1604 of 2010 :-10-: the sound of the water flowing from an open water tap and when he rushed to back side, he saw the accused, urinating into the container, in which water was kept for washing hands. The above act of the accused was questioned by PW2. Then, the accused threatened him stating that he would repeat the same and also warned PW2 that if he played with him he would be cut down. Thus, according to PW2, uttering such words, the accused took up a chopper which was kept inside a bag and waved it against his neck in order to inflict cut injury and immediately PW2 swerved his head and the weapon struck against his left earlobe and his cheek whereby the earlobe was cut into two pieces. According to PW2, thereafter PW1 and others came there and attempted to catch hold the accused and in fact, caught hold of him, but, he escaped after throwing away the chopper to the south-eastern corner of the hall room. According to PW2, thereafter, he was taken to the hospital by Aji and Razaak PW2 and CW4. During his examination, he had identified the material objects including MO1. So, in order to prove the occurrence, the prosecution mainly depends upon the evidence of Pws.1 and 2. Their evidence is in tact though they were subjected to lengthy cross-examination. The evidence of PW2, the injured is trustworthy and acceptable as the same is without any infirmities or contradictions. According to me, to prove the occurrence against the accused, the evidence of CRL.A.NO.1604 of 2010 :-11-: PW2, the injured itself is sufficient. In the present case, apart from the evidence of PW2, there is evidence of PW1, who was conducting curry business in the toddy shop and according to PW1, he prepared the curry in his toddy shop and supplied the same in the toddy shop as and when requested. From the evidence of PW1, it can be seen that he had deposed in terms of the prosecution except the overt act of the accused inflicting injury on PW2. According to me, PW1 is a reliable and credible witness, since if he wants to depose any lie before the court, he could have deposed before the court that he had also seen the actual overt act of the accused, but he fairly deposed that he did not witness that part of the incident. PW1 is also subjected to lengthy cross-examination and nothing was brought on record to dispel his version. Thus, according to me, the evidence of Pws.1 and 2 positively prove the incident and the role of the accused as to how PW2 sustained the injury at the hands of the accused. 9. As per Ext.P4 wound certificate, the injuries noted therein are on vital parts and the deposition of PW5 positively proves the fact that the injuries noted in Ext.P4 are fatal and as per the endorsement therein, which is a contemporary document, the injury was inflicted by the accused. As per Ext.P2 scene mahazar, MO1 was recovered by the investigating agency and Mos.2,3,6 CRL.A.NO.1604 of 2010 :-12-: and 7, which are worn by PW2, at the time of incident contained blood stain. Thus, it can be seen that the evidence and materials produced by the prosecution in this case positively prove that PW2 sustained injury, on his vital part, at the hands of the accused connected with the incident that had taken place on 29.11.2004 in the toddy shop of which PW2 is the Manager, which situates on the Aluva-Parur Public Road and the accused inflicted the injuries noted in Ext.P4 . The facts are proved by the prosecution through the evidence of Pws.1 and 2 with respect to the incident and as to how PW2 sustained injuries and the medical evidence coupled with the fact that the accused had used MO1 and the body part of PW2 selected to inflict injury would clearly indicate the intention of the appellant from which it is crystal clear that the accused had attempted to commit murder of PW2. Thus, I am of the view that the trial court is fully justified in holding that the prosecution has succeeded in establishing the offence under Section 307 of I.P.C. against the accused and therefore, no interference is warranted and consequently, the conviction recorded by the trial court under Section 307 of I.P.C. is confirmed. 11. The learned counsel for the appellant submitted that the sentence imposed is exorbitant and unreasonable and the same may be modified. Even though the maximum sentence, which can be imposed under Section 307, is life CRL.A.NO.1604 of 2010 :-13-: sentence, the trial court has imposed only the sentence of four years and a fine of Rs.10,000/-. In the present case, it is borne out from the records that the accused, being infuriated by the questioning of PW2 regarding the shameful act of the accused, inflicted the injury on PW2 and it is also borne out from the records that he is a man used to unauthorizedly enter into the shop and take toddy forceably. Under such circumstances, I am of the view that it is not proper to interfere with the punishment imposed by the trial court. Therefore, there is no scope for any interference with the sentence as well. In the result, there is no merit in the appeal and accordingly, the same is dismissed, confirming the conviction and sentence imposed on the appellant. V.K.MOHANAN, Judge MBS/ CRL.A.NO.1604 of 2010 :-14-: V.K.MOHANAN, J. CRL.R.P.No. 69 OF 2001 ORDER CRL.A.NO.1604 of 2010 :-15-: Dated:23.6.2011