IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 CRL.A.No. 588 of 2003() ----------------------- SC347./2002 of THIRD ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT NO.I THRISSUR .................... APPELLANTS/ACCUSED NOS. 1, 2 AND 3: -------------- 1. UNNIKRISHNAN, S/O.KRISHNAN, THADANGIL HOUSE, URAKAM, THRISSUR DISTRICT. 2. RAMESH, S/O.UNNI, PEDIKKATTUPARAMBIL HOUSE, 3. ANIL, S/0. GOVINDAN, CHERUVATHUR PARAMBIL HOUSE, URAKAM, THIRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.TONY MATHEW RESPONDENT/COMPLIANANT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. K.S.SIVAKUMAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/06 /2011 , THE COURT ON 15/06/2011 DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl.A. No. 588 of 2003 ----------------------------------------------- Dated this 15th day of June, 2011. JUDGMENT Appellants (A1 to A3) were charge-sheeted along with three others (A4 to A6 ) for offences under section 143, 147, 148, 324, 307 read with 149 Indian Penal Code. ('IPC' for short). After trial, accused 4 to 6 were acquitted of all the offences. Appellants were convicted under section 324, 307 read with 34 IPC but nothing is specifically stated in the order whether they were acquitted of other offences under section 143, 147, 148 and 149 of IPC. 2. Appellants (accused nos.1, 2 and 3) were sentenced to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.10,000/- each and in default to undergo rigorous imprisonment for one year for the offence under Section 307 read with 34 IPC. Appellants were also sentenced to undergo rigorous imprisonment for one year under Section 324 read with section 34 IPC. The sentenced were ordered to run [Crl.A.No.588/2003] 2 concurrently. The fine amount if realised, Rs.25,000/- was ordered to be paid to PW1. Set off was allowed. 3. According to prosecution, on 22.6.2000 at about 8.45 pm accused nos.1 to 6 formed themselves into unlawful assembly with common object of committing murder of PW1 and in prosecution of the said common object, they committed rioting, armed with deadly weapons like sword and iron pipe. Third accused beat PW2 on his hand with an iron rod-MO3, accused nos.1,2, 4 and 5 cut PW1 on the head, legs and other parts of body and attempted to commit murder. The 6th accused aided other accused in commission of offence and thereby, committed offence under section143, 147, 148 and 149 of IPC. 4. PW1 to PW10 were examined Ext.P1 to P19, MO1 to MO3 were marked on the side of prosecution. Accused did not adduce any evidence, but pleaded innocence while they were questioned under section 313 Code of Criminal Procedure. First accused stated that he was implicated because of political enmity. Trial court relied upon the evidence of namely, PWs.1 [Crl.A.No.588/2003] 3 and 2, who are the injured in this case. It was found that their evidence was supported by medical evidence, given by PW7 and the wound certificate Ext.P5 and Ext.P6. It was also found that the recovery of weapons MO1 to 3 was effected by investigating officer PW10 pursuant to disclosure statement made by first accused-Ext.P10. MO1 to MO3 were seized under Ext.P3 mahazar. 5. Trial court also found that there is reliable evidence to prove the involvement of first and second accused and that they are armed with swords. It was held that PW1 sustained serious injuries (17 injuries) as could be seen from Ext.P6 wound certificate. From the above facts, it was concluded that accused nos.1 to 3 had requisite intention under section 300 IPC and convicted all of them under section 307 read with 34 IPC. It is relevant to note that in paragraph 16 of the judgment, nothing is stated about the overt act committed by third accused or how he is connected with the injuries referred to in Ext.P6. Without any factual finding to support the requisite intention under section 300 IPC, such intention was also found [Crl.A.No.588/2003] 4 against third accused. Trial court did not even refer to, in paragraph 16 anything about involvement of third accused or the overt act committed by him, which would disclose the intention under section 300 IPC. 6. On hearing both sides and on going through the records, I find that involvement of third accused on the incident can be considered first. The common object of unlawful assembly is stated to be to commit murder of PW1. It is with the said common object that accused are stated to have acted against PW1. But PW1 did not state in his evidence in chief examination that third accused committed any overt act against him. PW1 has no case that any weapon was used by third accused against him or that third accused inflicted any injury on him. 7. It is also curious to note that though PW1 stated that third accused was carrying MO3-iron pipe in his hand, in cross examination, it was stated that third accused beat him with a sword and also that the beatings fell on his chest and back. Even prosecution does not have a case that third accused [Crl.A.No.588/2003] 5 attacked PW1 by using MO3 or any sword. In the charge submitted by police, the only overt act alleged against third accused is beating PW2 on his hand. In such circumstances, going by the evidence of PW1 himself, it is difficult to hold that third accused committed any overt act against PW1. PW2 also does not have a case that PW1 was attacked by third accused using any weapon. In such circumstances, the finding entered in this case against third accused, about the intention to commit murder, cannot be sustained. 8. It is also pertinent to note that though PW1 stated that MO3 iron pipe was carried by third accused, in cross examination, he stated that all the accused were carrying sword in their hands. He also stated in cross examination that it was with a sword that third accused had “beaten” him. PW2 also did not say that third accused committed any act against PW1. According to him, only first and second accused attacked PW1. PW2 deposed that third accused had beaten him with an iron rod and he also identified third accused while examined in court. [Crl.A.No.588/2003] 6 9. PW2 is the person who gave first information statement before the police. A reading of Ext.P1-first information statement shows that PW2 started narrating the incident by stating that he sustained injuries on his hand by an attack by “Shinoj”. But Ext.P1 is corrected. The name of “Shinoj' is struck off and in the place name Anil (A3) is seen written. The correction is not initialled. It is true that it can be argued that it can only be a mistake, but the evidence in this case shows that PW2 has implicated one Babu in the offence initially and made specific allegations against him that he used a sword and attacked PW1. 10. But, on investigation, it was found that the allegations against Babu were not correct and the said Babu was deleted from the array of accused. In such circumstances, the possibility of PW2 making a mistake in implicating third accused cannot be ruled out. Anyway, it is difficult to rely upon the evidence of PW2 alone regarding the involvement of third accused in this case especially since evidence of PW1 is inconsistent with evidence of PW2, particularly in respect of the [Crl.A.No.588/2003] 7 overt act committed by third accused and the weapon used by third accused. 11. Therefore, a doubt is cast on the involvement of third accused in the incident and prosecution failed to prove beyond reasonable doubt that third accused committed any overt act as alleged by prosecution. In this context, it is also relevant to note that PW3 stated in evidence that he saw sword in the hands of all the accused. He identified and referred to third accused also. He stated that he did not remember, who was carrying MO3. This evidence also goes against the evidence of PW2 who stated that he was beaten by third accused with MO3. 12. Now coming to the evidence relating to first and second accused, I will go back to evidence of PW1 to 3. PW1 who is the man injured deposed that on 22.6.2000 at about 8.45 p.m. the incident happened near a mosque, while he was going to the house. The first accused cut him on his head and he also cut him with MO1 sword on his knees. The 2nd accused cut him with MO2 on both his hands and he fell down. He identified first and second accused and also the weapons used [Crl.A.No.588/2003] 8 by them. He sustained injuries. He lost his left thumb and he cannot unfold his right palm. He cannot do any work. 13. PW2 also gave evidence that first and second accused cut PW1 with swords. He also identified accused nos. 1 and 2 and identified the weapons used by them as MO1 and MO2. PWs 1 and 2 stated that PW1 was taken to the hospital immediately. PW3 deposed that on 22.6.2000 at about 8.30 – 8.45 p.m. he was having food in his house and he heard a cry and went to the courtyard. Then he saw one Aboobacker, who came running, told that PW1 was cut and asked him to go running. On reaching the scene, he saw three of the accused carrying swords in their hands and first and second accused left in an autorickshaw. 14. PW3 also stated that PW1 was found lying injured and he was taken to the hospital. He identified accused nos. 1 and 2 and also MOs. 1 and 2 as the weapons carried by them. Though PWs 1 to 3 were cross-examined there is nothing to disbelieve their evidence relating to the involvement of first and second accused in the incident. It is proved by their evidence [Crl.A.No.588/2003] 9 first and second accused cut PW1 on his head and both the hands by using MOs 1 and 2 and they were found carrying MOs. 1 and 2, while PW2 came to the scene immediately after the incident. 15. The medical evidence also supports the version given by PWs. 1 and 2. PW7 is the doctor who examined PW1 and Ext.P6 is the certificate issued by him. He noted as many as 17 injuries on PW1 and he deposed that the injuries could be caused by MOs. 1 and 2. He also stated that for the injuries sustained operation was to be conducted. As per Ext.P6, PW1 had incised wound right tempero paretal area measuring 10 x 1x 1cm cms. He also had other similar injuries on him. 16. From the above proved facts, the question which arises for consideration is, what is the offence committed by first and second accused. PW7, the doctor, stated that if the injuries are left unattended those could be fatal. But, he has not noted any injury which is sufficient in the ordinary course of nature to cause death. Though an incised injury is noted on the head, PW7 has no case that any fracture was caused [Crl.A.No.588/2003] 10 corresponding to injury no.1 in Ext.P6. So also, prosecution has no case that any fracture was caused to PW1 on the knees, where the 2nd accused inflicted injuries. 17. However, PW1 sustained several injuries as revealed by Ext.P18. PW1 was admitted in the hospital on 26.6.2000 and discharged only on 15.8.2000. According to PW1, he is unable to do any work. He lost his thumb in the incident. His palm cannot be unfolded. However, there is nothing in the evidence of PWs, 1 and 3 to show that those disabilities are caused by any of the acts committed by first and second accused. It can also be seen that neither PW1 nor PW2 stated that either of accused 1 and 2 inflicted injuries on PW1 except on his head and knees. Though several injuries are found on the body of PW1, first and second accused are answerable only for the injuries on the head and legs. 18. The trial court also held that the offences under Sections 143, 147 and 148 IPC are not made out and the liability cannot be fastened on accused nos. 4 to 6 by application of Section 149 of IPC. In such circumstances, [Crl.A.No.588/2003] 11 prosecution was successful in proving that first and second accused cut PW1 on the head and the knees respectively and inflicted injuries by means of MOs. 1 and 2. The trial court also found that the offence under Sections 143, 147, 148 etc. are also not made out. The trial court however found that the offences were committed in furtherance of common intention. There is no reason to interfere in this finding. 19. It is clear from the evidence of PWs. 1 and 2 and also the medical evidence that PW1, sustained grievous hurt including loss of thumb in the incident. Thus, offence under Section 326 IPC was committed in the course of the incident. Accused 1 and 2 were not only present at the time of incident but they participated in the incident by inflicting injuries on PW1 with weapons like MO.1 and 2. There is ample evidence to show that they shared common intention with the other assailants to commit the offence under Section 326 IPC. The evidence adduced in this case will not prove that there was any intention to commit offence under Section 307 IPC. 20. Therefore, the offence made out against first and [Crl.A.No.588/2003] 12 second accused individually are under Section 324 IPC and they are convicted thereunder. They also committed offence under Section Section 326 read with Section 34 IPC and they are convicted under the Section instead of Section 307 IPC. The conviction under Section 307 read with section 34 IPC is to be set aside and I do so. 21. Learned counsel for appellant submitted that appellants each are prepared to pay compensation of Rs.30,000/- even though they are ordinary labourers. But, the sentence of imprisonment may be reduced, it is submitted. The incident happened as early as in 2000 and 11 years have elapsed. They have undergone the trauma of long pending litigation. Both of them were aged less then 30 at the time of incident. 22. It is also submitted that the sentence imposed on the accused by trial court for offence under Section 324 IPC read with Section 34 of IPC is only rigorous imprisonment for one year. A total amount of only Rs.25,000/- was ordered as compensation to PW1. On hearing both sides and on [Crl.A.No.588/2003] 13 considering the various facts and circumstances pointed out, I find that the sentence of imprisonment can be reduced and accused 1 and 2 can be directed to pay compensation in modification of the sentence passed. In the result, the following order is passed: 1) The conviction and sentence passed against appellants 1 and 2 under Section 324 IPC is confirmed. 2) Appellants 1 and 2 are convicted for offence under Section 326 read with Section 34 IPC, instead of offence under Section 307 IPC. 3) Appellant nos. 1 and 2 each are sentenced to undergo rigorous imprisonment for one year and to pay compensation of Rs.30,000/- each to PW1 under Section 357(3) of Cr.P.C under Section 326 read with Section 34 IPC. If the compensation is not paid, appellants 1 and 2 each shall undergo rigorous imprisonment for one year (vide Vijayan v. Sadanandan (2009) 6 SCC 652). 4) No separate punishment is imposed on appellants 1 and 2 for offence under Section 324 IPC. 5) Appellants 1 to 3 are found not guilty and are acquitted of offences under Sections, 143, 147, 148, 307 read with Section 149 IPC. [Crl.A.No.588/2003] 14 6) Appellant no.3 is found not guilty and acquitted of offences under Sections 324 and 307 read with Section 34 IPC and he is set at liberty forthwith. This appeal is partly allowed. Sd/- K.HEMA, JUDGE. Krs.