IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 CRL.A.No. 2087 of 2003() ------------------------ AGAINST THE ORDER DATED 19/11/2003 IN SC.391/2000 & SC.130/2000 of ADDL. SESSIONS COURT (ADHOC), FAST TRACK COURT, THRISSUR CP.65/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, CHALAKUDY .................... APPELLANTS/ACCUSED NOS 1 TO 3:- ----------------------------------------- 1. AKKAI SHAJI @ SAJEEVAN, S/O. RAJAN, KIZHAKUDAN HOUSE, PARIYARAM VILLAGE, KONNAKUZHI DESOM, MUKUNDAPURAM TALUK 2. SURENDRAN S/O. RAMAN, THOTTILAN HOUSE,AMBALLUR VILLAGE, KALAKALLU DESOM, MUKUNDAPURAM TALUK 3. JAYESH S/O. CHANDRAN, PARANGADAN HOUSE, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. MR. P.VIJAYA BHANU MR. TONY MATHEW MR. VIPIN NARAYAN RESPONDENT/COMPLAINANT:- ----------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A. NO. 2087/2003 : 2 : ORDER ON CRL. M.A. NO. 13531/2003 IN CRL.A. NO. 2087/2003 DISMISSED 11.11.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ------------------------------------------------------------- Crl. A. No. 2087 of 2003 ------------------------------------------------------------ Dated this the 11th day of November, 2009. JUDGMENT In this appeal filed by accused Nos. 1 to 3 in S.C. No. 130 of 2000 on the file of the Additional Sessions Court (Adhoc), Fast Track - II, Thrissur, they challenge the conviction entered and the sentence passed against them for offences punishable under Sections 143, 148, 341, 323 and 307 r/w Section 149 IPC. 2. The above Sessions case was tried along with S.C. No. 391 of 2000 where the case of one more accused who was absconding, was subsequently committed and clubbed along with S.C. No. 130 of 2000 for the purpose of joint trial. 3. The case of the prosecution can be summarised as follows:- The appellants herein (A1 to A3) were allegedly engaged in the sale of illicit liquor against which there was Crl. Appeal No. 2087/2003 : 2 : a move by the local people including PW14. On account of the enemity towards those persons including PW14, on 19.08.1998 at 2.30 p.m., the seven accused persons formed themselves into an unlawful assembly, the common object of which was to commit offences punishable under Sections 143, 148, 341, 323 and 307 and in furtherance of the common object of the said assembly and armed with MO1 chopper, the accused assaulted PWs 1 and 14 who sustained injuries as a result of the act of cutting by A1 with MO1 chopper at a place called Konnakuzhy within the limits of Vettilappara Police Station. The accused have thereby committed the aforementioned offences. 4. On the accused pleading not guilty to the charge framed against them by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 23 witnesses as P.Ws 1 to 23 and got marked 11 documents as Exts. P1 to P11 and one material Crl. Appeal No. 2087/2003 : 3 : object as MO1. 5. After the close of the prosecution evidence, the 7 accused persons were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. 6. Since this was not a case of no evidence for the prosecution, the court below did not record an order of acquittal under Section 232 Cr.P.C. The accused examined two witnesses as DWs 1 and 2 and got marked two documents as Exts.D1 and D2 when called upon to enter on their defence. 7. The Addl. Sessions Judge, after trial, as per judgment dated 19.11.2003 acquitted accused Nos. 4 to 6 in S.C. No. 130 of 2000 and acquitted the sole accused in S.C. No. 391 of 2000 but convicted the appellants namely A1 to A3 in S.C. No. 130 of 2000 for the offences referred to Crl. Appeal No. 2087/2003 : 4 : above. For the said conviction, each of the appellants was sentenced to imprisonment for different terms with a direction that the sentences shall run concurrently. It is the said judgment which is assailed in this appeal by A1 to A3. 8. During the pendency of this appeal, the 2nd appellant who was the 2nd accused in S.C. No. 130 of 2000 died. Since the sentence imposed is one of imprisonment only, this appeal so far as it relates to A2 shall stand abated. The surviving question is as to whether the conviction entered and the sentence passed against accused Nos. 1 and 3 are sustainable or not. 9. The point:- PWs 1 and 14 are the only injured persons and Exts.P3 and P11 are the wound certificates pertaining to them. Going by the injuries sustained by PW1 as discernible from Ext.P3 wound certificate proved by PW13 doctor, they are simple injuries notwithstanding the fact that PW1 did not support the prosecution. As for PW14, the injuries sustained by him are referred to in Ext.P11 wound certificate prepared by one Dr. Balaji Nayak who was not examined for the reason that he was Crl. Appeal No. 2087/2003 : 5 : not available. Hence PW23, another doctor who was alleged to be familiar with his handwriting was examined to mark Ext.P11 wound certificate. PW23 admittedly did not prepare the wound certificate nor did he examine PW14. The injuries noted in Ext.P11 wound certificate are the following:- 1.Cut injury over (L) parietal region, Bone deep. 2.Cut injury over (L) shoulder, Deltoid 4 x 0.5 cm. 3.Cut injury over (R) Scapular area 3 x 0.5 cm. - Bleeding 4.Cut injury over (R) shoulder 4 x 0.5 cm. 5.Cut injury over Ant Chest Wall (2 nos.) 3 x 0.5 cm. 6.Cut injury over chin size 4 x 1 cm. 7.Laceration over (R) big toe. 8.Abrasion over (R) forearm. 10. What is surprising to find is that no question was asked in the chief examination of PW23 doctor as to what is the nature of aforesaid injuries. PW23 also did not depose that any of those injuries, if left untreated, would have been sufficient to cause the Crl. Appeal No. 2087/2003 : 6 : death of PW14. PW14, the injured also did not say that he engendered a fear of death while sustaining the injuries or that the blows with MO1 chopper were aimed at him in such a way as to cause his death. In the face of this evidence by PW14 and PW23, the doctor, it cannot be said that the offence under Section 307 has been made out. The injuries referred to in Ext.P11 wound certificate by themselves are only minor injuries, none of which is even likely to cause death. Under these circumstances, the offence if at all that can be made out against PW14, could only amount to volountarily causing hurt by a dangerable weapon and is punishable under Section 324 IPC. Accordingly, the conviction under Section 307 IPC is dislodged and altered to one under Section 324 IPC. Accused Nos. 1 and 3 shall be deemed to have convicted by the court below for offences punishable under Sections 143, 148, 341, 323 and 324 r/w Section 149 IPC. 11. Pending this appeal, PW14 died a natural death on 13.01.2004 as revealed by the death certificate produced by the appellants. The legal heirs of PW14 have subsequently Crl. Appeal No. 2087/2003 : 7 : compounded the offences with A1 and A3, the surviving appellants as evidenced by a joint statement filed as Crl. M.A. No. 10352 of 2009. The composition is recorded though not for the offence punishable under Section 307 IPC. The composition shall be deemed to be for offences punishable under Sections 143, 148, 341, 323 and 324 r/w Section 149 IPC. Since the offences punishable under Sections 341, 323 and 324 are compoundable, the unlawful assembly shall be deemed to have been formed only for the purpose of committing those offences which have been compounded. Hence, the surviving appellants, namely, accused Nos. 1 and 3 shall be deemed to have been acquitted of offences punishable under Sections 143, 148, 341, 323 and 324 r/w Section 149 IPC in view of Section 320 (8) Cr.P.C. This appeal is disposed of as above. Dated this the 11th day of November, 2009. V. RAMKUMAR, JUDGE. rv Crl. Appeal No. 2087/2003 : 8 :