IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 1022 of 2008() ------------------------------ CRA.422/2005 of SESSIONS COURT, KOLLAM SC.1024/2001 of ASSISTANT SESSIONS COURT, KOLLAM .................... REVN. PETITIONER(S): REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------- BALAKRISHNA PILLAI JAYAKUMAR, S/O. BALAKRISHNA PILLAI, AGED 40 YEARS, KUMBAZHATHARA VADAKKATHIL VEEDU, VARAVILA MURI, CLAPPANA VILLAGE, KARUNAGAPPALLY. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 1022 OF 2008 ............................................ DATED THIS THE 26th DAY OF NOVEMBER, 2008 ORDER Revision petitioner was concurrently convicted and sentenced for the offence under Section 307 IPC. Prosecution case was that on 4.6.1999, at about 4.30 pm, with the intention to murder PW3, due to the attempt of PW3 to repair the demolished fence, revision petitioner voluntarily inflicted injuries with a chopper on his head and left wrist and thereby committed offence under Section 307 IPC. PW3 was taken to Taluk Headquarters Hospital, Karunagappally by his son PW4. PW1, the Doctor examined him and prepared Ext.P1 wound certificate. PW1 noted a cut injury 12 cms long and 2 cms wide on the left forearm on the doresel side and another cut injury 12 cms long and 2 cms wide with fracture of skull bone, slightly to the right side at the middle of the head. Because of the grievious injury, PW1 referred PW3 to Medical College Hospital, Thiruvananthapuram. PW3 was taken to District Hospital, Kollam from Taluk Headquarters Hospital, Karunagappally and from there Ext.P2 F.I.Statement was recorded at 8.15 pm and based on Ext.P2, FIR was prepared and Crime 124 of 1999 was CRRP 1022/2008 2 registered under Section 447 and 307 IPC. PW8 conducted the investigation and thereafter submitted the final report before Magistrate. Magistrate committed the case to Sessions Court and Sessions Judge made it over the case to Assistant Sessions Court, Kollam as S.C.1024 of 2001. When charge for the offence under Section 304 IPC was framed and read over, petitioner pleaded not guilty. Prosecution examined 11 witnesses and marked 11 exhibits and identified Mos 1 to 3. After questioning the accused, petitioner was called upon to adduce evidence. He did not adduce evidence. Learned Assistant Sessions Judge, thereafter heard the prosecution and the defence and found petitioner guilty. He was convicted for the offence under Section 307 IPC. Petitioner was heard on the question of sentence and was sentenced to rigorous imprisonment for five years and a fine of Rs.5000/- and in default, simple imprisonment for six months. Petitioner challenged the conviction before Sessions Court, Kollam in Crl.A.422 of 2005. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. The argument of the CRRP 1022/2008 3 learned counsel is that courts below did not properly appreciate the evidence and the inconsistencies and contradictions in the evidence were not properly appreciated. It was pointed out that in Ext.P2 F.I.Statement, PW3 had no case that PW4 was present at the scene when he sustained injury and the case was that when PW3 cried after sustaining injury, hearing the cry, PW4 rushed to the spot and then the accused ran away with the weapon of offence and Ext.P2 establish that PW4 was not there at the scene of occurence. It is therefore argued that courts below should have found that PW4 is not an eye witness to the incident and evidence of PW4 is insufficient to corroborate the evidence of PW3. It was argued that case of PW3 in Ext.P2 F.I.Statement was that while PW3 was replanting the stumps of the fence, removed by revision petitioner, there was exchange of words with revision petitioner and then a scuffle and thereafter revision petitioner proceeded to his house to get a chopper and returned back with the chopper and inflicted injuries on his head and left forearm and when PW3 was examined in court, the version was that there was no exchange of words and after revision petitioner had gone to his house to take the chopper, PW3 asked his son PW4 to get a chopper and PW4 returned to the spot with the chopper, but a retired police man took away CRRP 1022/2008 4 the chopper and in the light of this discrepancy and contradictions, courts below were not justified in accepting the interested version of PW3 especially when admittedly PW3 was on inimical terms with revision petitioner on account of dispute regarding the boundary. It was argued that when there is no other evidence to corroborate the evidence of PW3 and evidence of PW3 is contradicting his version in Ext.P2, courts below were not justified in relying on the solitary evidence of PW3 to convict petitioner. Learned counsel then argued that even if evidence of PW3 is accepted, there is no evidence to establish that revision petitioner had an intention to cause murder of PW3 or inflicted an injury which was sufficient in the ordinary course of nature to cause death or with the knowledge that it is likely to cause death and therefore an offence under Section 307 IPC is not proved. It was argued that the injuries sustained by PW3 could be sustained during a scuffle as he was armed with a chopper and so revision petitioner is to be acquitted. 3. Learned Public Prosecutor submitted that both Assistant Sessions Judge and Sessions Judge appreciated the evidence in the proper perspective and exercising the revisional powers, there is no reason to reappreciate the evidence. It was argued that PW3 is the injured and there is no reason to disbelieve his CRRP 1022/2008 5 version as to how he sustained injuries and even though defence had a case that PW3 was the aggressor, revision petitioner did not sustain any injury and therefore defence case was rightly rejected by the courts below and there is no reason to interfere with the conviction or sentence. 4. Evidence of PW1 corroborated by Ext.P1 wound certificate establish that at 5.30 pm on 4.6.1999, PW1 the Surgeon examined PW3 at Taluk Headquarters Hospital, Karunagappally and at that time, it was disclosed to PW1 that PW3 sustained the injuries noted in Ext.P1 and the injuries were inflicted with a chopper. The name of the assailant was not shown in Ext.P1, evidently because it was not disclosed to PW1 by PW3 at that time, Ext.P1 F.I.Statement was recorded by Head Constable at 8.15 pm on the very same day, after PW3 was taken from Taluk Headquarters Hospital to District Hospital, Kollam. In Ext.P2 F.I.Statement, PW3 unambiguously disclosed that he sustained the injuries in the hands of revision petitioner. The details of the incident was also narrated in Ext.P2 F.I.Statement. Therefore failure to name the assailant in Ext.P1 wound certificate is not fatal to the prosecution case as it is mentioned in Ext.P2. From the evidence of PW1, it is conclusively proved that PW3 sustained a cut injury 12 cms long and 2 cms wide with CRRP 1022/2008 6 fracture of skull on the right side of the middle of head and also a cut injury 6 cms long and 2 cms wide, on the left forearm on the doresel side. It is also proved by the evidence of PW1 that those injuries could be inflicted with a weapon like MO1 chopper. 5. The question then is whether the injuries were inflicted by revision petitioner and if so whether they were inflicted as alleged by prosecution. As rightly argued by learned counsel appearing for revision petitioner, though PW4 claimed that he was an eye witness to the incident and it was accepted by the courts below, in the light of the assertion of PW3 in Ext.P2, PW4 could not have been present there at the time when PW3 sustained the injury. If in fact PW4 was present near PW3, when he sustained injury as spoken to by PW3 and corroborated by PW4 in Ext.P2 F.I.Statement, PW3 would not have stated that PW4 reached there when he cried and that too on hearing the cry. If the version given in Ext.P2 is the correct and true version of the incident, PW4 could have reached there only after PW3 sustained injuries PW4 had developed the case further stating that finding that PW3 was being attacked by the revision petitioner, he intervened and in the scuffle, PW4 also fell down. But even PW3 has no such case. Therefore on the materials, it CRRP 1022/2008 7 can only be found that PW4 was not an eye witness to the incident as he could have reached there only after PW3 sustained the injuries. 6. PW5, the other independent witness examined by the prosecution deposed that he did not see the incident. Therefore what is available is only the evidence of PW3. Being the injured, PW3 is definitely the most competent person to disclose how he sustained injury. According to PW3, he sustained injury from the hands of the revision petitioner. Though PW3 had slightly exaggerated the case, from the version given in Ext.P2 with regard to the presence of PW4 at the time of the incident at the scene of occurrence, on that ground the entire evidence of PW3 cannot be disbelieved. It is not the law that even if a witness deposed part of the facts which are not correct, or it is shown that he exaggerated the facts, for that reason his entire evidence is to be disbelieved. It is for the court to swift the admissible and the acceptable portion of the evidence and reject what is not inadmissible or unreliable. If that be so and the evidence of PW3 is appreciated in the proper perspective, it could definitely be found that he sustained injuries from the hands of revision petitioner. It is pertinent to note that when revision petitioner was questioned under Section 313 of Code of CRRP 1022/2008 8 Criminal Procedure, his case was that PW3, along with PW4 came to his house with a chopper and at that time revision petitioner caught hold of the chopper and waived it implying that the injury could have been sustained by PW3 at that time. But even according to revision petitioner, he did not sustain any injury whatsoever, even an abrasion. If in fact, PW3 is the aggressor as claimed by revision petitioner and armed with the chopper and accompanied by PW4, PW3 had gone to the house of revision petitioner to attack him with a chopper, definitely PW3 would have sustained some injury. Even when PW1 was cross examined, the Doctor was not asked whether the injuries found on PW3 and recorded in Ext.P1 could have been caused by a scuffle or by falling with the chopper in the hands of the fallen victim. Moreover to cause such a fracture on the skull, that too at the middle of the head with a dimension of 12 cms long and 2 cms wide, sufficient force must necessarily be exerted and therefore the injury sustained on the skull of PW3 could not have been sustained either in the scuffle for a chopper or in a fall with the chopper, as canvassed by the learned counsel. Even though PW3 in cross examination stated that before revision petitioner returned back with a chopper, he had asked PW4 to get a chopper from the house and PW4 had returned back with a CRRP 1022/2008 9 chopper, which was taken away by a retired police constable, in the nature of the offence, and injuries sustained by PW3, the injury could not have been sustained as canvassed by the revision petitioner it cannot be accepted. From the evidence, it could only be found that revision petitioner voluntarily inflicted those injuries with the intention to cause those injuries. 7. Then the question is what is the offence proved. Learned Assistant Sessions Judge and learned Sessions Judge convicted petitioner for the offence under Section 307 IPC. To sustain a conviction for the offence under Section 307 IPC, there should be conclusive evidence to prove an attempt to cause murder. Under Section 307 IPC, whoever does any act, with such intention or knowledge and under such circumstances that, if he, by that act, cause death, he would be guilty of murder, then he shall be punished for the offence under Section 307 IPC. Therefore prosecution must establish that revision petitioner had either an intention to cause death of PW3 or had the knowledge that under such circumstances if by that act he causes the death, he would be guilty of murder. Though in Ext.P2 F.I.Statement, it was alleged that revision petitioner came back with a chopper, proclaiming that he will not allow PW3 to leave, which could have been made for advancing a plea that there was an intention CRRP 1022/2008 10 to cause murder of PW3 at the time of the evidence, PW3 had no such case. He had only stated that revision petitioner returned back with a chopper proclaiming that PW3 will be made into pieces, which could have been spoken to by revision petitioner as if that was declared by revision petitioner. If that be so, he would not have stated in Ext.P2 F.I.Statement that revision petitioner proclaimed that he will not allow PW3 to live. From the evidence, it cannot be said that revision petitioner had any intention to cause the murder of PW3. Even though PW1 deposed that a fracture was inflicted on the skull of PW3, even PW1 has no case that, that injury was likely to cause death. Therefore it cannot be said that neither the injury on the skull nor the injury on the left forearm was inflicted with the intention to cause death or had any knowledge that by such act, the death of PW3 could be caused and if it is caused, he would be guilty of murder. Therefore courts below were not justified in convicting revision petitioner for the offence under Section 307 IPC as ingredients of the offence was not established. 8. The question then is what is the offence proved. As stated earlier, it was proved that revision petitioner voluntarily caused fracture of skull apart from an incised injury on the left forearm of PW3. It is definitely an injury as provided under CRRP 1022/2008 11 Section 320 IPC. It is also proved that the said injury was inflicted with a dangerous weapon like MO1. Therefore on the evidence, prosecution conclusively established that revision petitioner committed the offence under Section 326 IPC. Even though there is no separate charge for an offence under Section 326 IPC, being a lesser offence compared to an offence under Section 307 IPC, revision petitioner can be convicted for the offence under Section 326 IPC without a specific charge for the said offence. 9. Then the question is what is the sentence to be awarded. Section 326 IPC provides for a sentence of imprisonment for life or imprisonment which could be extended upto 10 years and also fine. Learned counsel submitted that revision petitioner is a close relative of PW3 and the incident occurred because of the property dispute and in such circumstances, leniency is to be shown. When learned Sessions Judge questioned revision petitioner regarding the sentence, what was disclosed by revision petitioner was that he is looking after his mother and he intends to get married and to build his own life. Considering the entire relevant aspects, interest of justice will be met if revision petitioner is sentenced to rigorous imprisonment for one year and a fine of Rs.10,000/- and in default, simple imprisonment for CRRP 1022/2008 12 one month. On realisation of fine, it is to be paid to PW3 as compensation under Section 357(1) (b) of Code of Criminal Procedure. 10. Revision petition is allowed in part. Conviction of petitioner for the offence under Section 307 IPC is set aside. Petitioner is found guilty and is convicted for the offence under Section 326 IPC. He is sentenced to rigorous imprisonment for one year and a fine of Rs.10,000/- and in default, simple imprisonment for one month. On realisation of fine, it is to be paid to PW3 as compensation under Section 357(1) (b) of Code of Criminal Procedure. Assistant Sessions Judge, Kollam is directed to execute the sentence. Revision petitioner is entitled to get set off for the period he has been in custody during the investigation and if any, during the trial or thereafter. M.SASIDHARAN NAMBIAR, JUDGE lgk/-