IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 CRL.A.No. 717 of 2003() ----------------------------------- SC.57/2000 of ADDL. SESSIONS COURT, THODUPUZHA CP.13/1997 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI .................... APPELLANT(S): ACCUSED --------------------- 1. JOY S/O. THOMAS, MUNDAKAPADAVIL VEEDU, POTHUPARA KARA, KUNCHITHANNI VILLAGE. 2. JOHNSON S/O. THOMAS, PUTHUR VEEDU, 7TH KOOPU BHAGAM, KEERITHODU KARA, KANJIKUZHY VILLAGE. BY ADV. MR .A.J.JOSE(AEDAIODI) RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, ADMALY THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR MR.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.717 OF 2003 ------------------------------ Dated this the 3rd day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge (Adhoc-II), Thodupuzha in S.C.No.57/2000. The accused two in numbers were charge sheeted for the offences under Sections 307 and 324 and the trial court found them guilty under Section 307 of the I.P.C and convicted and sentenced them to undergo S.I for a period of one year and a fine of Rs.10,000/= and default sentence of one month. The fine if recovered was ordered to be disbursed to the defacto complainant. It is against that decision, the present appeal is filed by the accused. The points that arises for determination in the appeal are (1) whether there are sufficient materials to prove the guilt of the accused in the case under Section 307 of the I.P.C (2) whether the conviction and sentence requires interference by this court. 2. Points 1 and 2: 2 CRL.A.NO.717/03 It is the case of the prosecution that on 20.3.1997 at about 12.50 p.m while PW2 was on the eastern side of the Panniyar river on account of the previous enmity, A1 came and stabbed him with a knife on the right side of the chest, right side of hip, A2 came proclaiming to kill CW2 and he hit him with a stone on his forehead thereby the accused 1 and 2 have intentionally attempted to murder CW2 and voluntarily caused grievous hurt. The case of the defence appears to be that it was the complainant along with Abilash and others who had attacked A1 and the injuries sustained by the complainant at the most may be on account of the tussle that had taken place. It is also submitted by them that there was a counter case which is pending before the very same court. PW2 is the injured in the case. Pw2 had deposed before the court that a day prior to 20.3.1997 there was a quarrel between his father-in-law and the first accused. The accused was coming on the date of the incident namely 20.3.1997 from a toddy shop. The complainant asked about the reason for the quarrel and at that time, the first accused had taken the knife from his waist and stabbed him on his chest and thereafter on the 3 CRL.A.NO.717/03 thigh. A2 also came with hue and cry to kill PW2 and with a stone had hit on his head which resulted in the sustainment of the injuries. According to him, CWs 1 and 3 had done the first aid and he was taken to the government Hosptial at Adimali and thereafter to the Medical Trust at Ernakulam. He had been cross examined at length. It is suggested that the father-in- law was not in good terms on account of the fact that the marriage was not with his full approval. It is suggested that he is a person who has got a black belt in carate and that PW3 is one of his disciples. It has been denied by him. According to the defence version, the attack was made by the complainant against him and others and it is suggested that there is a case pending as CC.461/1997 which is admitted by the defacto complainant. He had categorically denied the suggestion that there was mutual fight between him and A1 and that he has never beaten A1 with stick. He had also spoken about the various treatments he had undergone and he had also denied the suggestion in the cross examination for A2 that he had gone with Abilash for purchase of household articles. PW3 is Abilash. He has deposed before the court that he had seen that 4 CRL.A.NO.717/03 PW2 and A4 were quarreling and that A2 came to the place with a hue and cry to kill Pw2. He had identified the accused and also the material objects. It is deposed by him that A1 had stabbed the complainant with a knife and A2 had hit him with a stone. In the cross examination it was suggested that he is a disciple but he had denied the same. He had categorically stated that there was no tussle between CW2 and A1 but there was only a wordily quarrel. He had denied the suggestion that he was in possession of MO1 knife. It is suggested to him that A1 had not attempted to inflict injury on CW2 but had only attempted to resist CW2. Regarding the stone, he deposed that it is the stone from a river. The next witness is PW10. PW10 knows both the accused and the complainant. He had stated before the court that the incident took place near a river and at that time, he along with his friends were talking in front of the shop of one Kunjumon. He saw the accused and the complainant quarreling and at that time, A1 took a knife and stabbed on the chest and thigh of the complainant. He also deposed that the second accused came from the other side of the river with a hue and cry to kill CW2 and had hit on his head 5 CRL.A.NO.717/03 with a stone. He had been severely cross examined by the counsel for the defence. He does not know about any case with reference to the injury sustained by the first accused. According to him, the shop of Kunjumon is about 30 meters and there are no obstructions except the presence of a coconut tree or one or two areaca nut trees. According to him, Johnson was running from the side of the river. He had also stated about that police had questioned him. According to him, the quarrel did not last long for more than 8 to 10 minutes. He had categorically denied the suggestion of the complainant stabbing or hitting the accused. So, the material evidence in this case namely that of the injured and two eye witnesses. PWs 3 and 10 only point out the following. The defacto complainant was walking along the Panniyar river, at that time there was some quarrel between him and the first accused. The first accused took out a knife and stabbed him on the chest and thigh and A2 who is non other than the brother in law of A1, came running from the other side and hit on the hip of CW2 resulting injuries to him. The projected case of the accused is that the aggressors were the defacto 6 CRL.A.NO.717/03 complainant, PW3 and others and that the first accused had been beaten with a stick etc and if at all any injury is sustained by the defacto complainant, it has to be stated as one coming within the act of private defence. It is settled position of law that for a private defence, the force that can be used should be a reasonable force or a force commensurate with the incident. Even if the version of DW1 namely the first accused is accepted for argument sake, there is no evidence to show that the defacto complainant was in possession of any material objects like stick or knife. When it is so, one cannot expect a person to stab that person with a knife that too on the chest and thereafter on the thigh. So, it has to be held that the case of self defence also cannot be accepted. So far as the case and counter case are concerned, it has to be stated that from the place of incident, only MOs 1 and 2 were recovered. They were identified and witnesses had spoken to the effect that MO1 was possessed by A1 and MO2 was possessed by A2. If others have gathered round and had weapons with them and as the present complainant was immediately taken to the hospital, there was no possibility for 7 CRL.A.NO.717/03 anybody to remove the materials, if it was in existence. The non recovery or the inability to point out any other materials also points out that what is spoken to by DW1 is not correct. The investigating agency was only able to find out the pair of chapels. Admittedly, 3 or 4 persons assembled at a place, there was nothing wrong in recovering one pair of chapel. It will not indicate that there was an attack or fight between the two sides. So, the evidence tendered in this case proved the incident. It is also supported by medical evidence. The medical evidence shows about the injury sustained on the chest and thigh of the defacto complainant. From the Government Hospital, Adimali, he was taken to the Medical Trust Hospital, Ernakulam where he had undergone a long treatment. On the contra, it can be seen that the first accused gets admitted in the hospital only 5 days after the alleged incident. His whereabouts were unknown. So, one cannot point out that the defence set up by the accused appears to be true and probable in this case. Learned Sessions Judge had analysed the matters in the correct perspective and arrived at a correct decision. Therefore, I do not find any ground to interfere with 8 CRL.A.NO.717/03 the finding of guilt under Section 307 of the I.P.C. 3. Turning to the sentence, Section 307 of the I.P.C is a very serious offence where the punishment prescribed is up to 10 years. Here is a case where a person had been stabbed on the chest and thigh besides been beatened on the head. so, the apprehension is absolutely correct and the sentence imposed is extremely reasonable and one cannot reduce the punishment in a case under Section 307 of the I.P.C. The court has only ordered a fine of Rs.10,000/= which is also not on the higher side. Therefore, the sentence also does not require any modification. In the result, the criminal appeal fails and the same is dismissed and the trial court is directed to execute the sentence. M.N. KRISHNAN, JUDGE cl 9 CRL.A.NO.717/03 10 CRL.A.NO.717/03