IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 CRL.A.No. 1951 of 2003() --------------------------------- SC.184/2001 of III ADDL. SESSIONS JUDGE (ADHOC), FAST TRACK COURT, THRISSUR ........................................................................ APPELLANT(S): ACCUSED ------------------------------------- FRANCIS @ KATHI KANNAN @ KANNAN S/O. KANNAMPUZHA VEETTIL OUSEPH, VENDUR, AMBALLUR, TRICHUR DISTRICT. BY ADVS. SRI.A.C.DEVY SRI.UNNIKRISHNAN V. RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV.SRI.C.M.NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- CRL.A.No.1951 OF 2003 -------------------------- Dated this the 16th day of June, 2009 J U D G M E N T ~~~~~~~~~~~ This is an appeal preferred against the conviction and sentence in S.C.No.184/2001 of the Additional Sessions Judge (Ad Hoc) Fast Track Court - I, Thrissur. The appellant was charge sheeted by police for offence u/s.324 and 307 of Indian Penal Code. The court below found him guilty u/s.324 of I.P.C. and sentenced him to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.5,000/- and that amount to be disbursed to the complainant PW6. It is against that decision the accused has come up in appeal. 2. It is the case of the prosecution that on 13.2.1999 at about 4 P.M. at the margin of NH 47 road and in front of Vattakkuzhi weigh bridge in Amballur village the accused voluntarily caused hurt to PW2 by beating with wooden stick and hitting with a granite stone with such intention and knowledge that it may cause death. 3. In the Trial court, PWs 1 to 16 were examined and Exts.P1 to P27 and D1 to D1(d) and M.O.(1) to (6) were marked. CRL.A.No.1951 OF 2003 2 4. The points that arise for determination are, (i) Whether the court below was justified in convicting the accused u/s.324 of I.P.C.? (ii) Whether the punishment imposed is proper and if so what is the quantum ? 5. Points (i) and (ii) :- According to the prosecution, at about 4 P.M. on 13.2.1999, the accused had attacked the defacto complainant PW6 with wooden material resulting in injuries to him. The witnesses who were sighted to support the case of the prosecution did not support it. The only evidence which supports the case of the prosecution is that of PW6 and PW7. PW6 is the defacto complainant and PW7 is one of the eye-witness. Pws1 to 5 here sighted to prove the incident, had turned hostile to the prosecution, of which PW 1 was the person who had given the first information statement. A perusal of the first information statement would indicate that there is something to connect the accused with the crime. The learned counsel for the appellant strongly contended before me that, before the CRL.A.No.1951 OF 2003 3 examination of PW6 he has been tutored and such evidence, in the absence of absolute corroboration can not be accepted. It has come out in evidence of PW 6 that, he was given the opportunity to go through the statement before entering the box. It has to be stated that there is no serious improvement of the version by PW6. Let me first consider, whether PW 6's evidence is reliable to find out the guilt of the accused. PW6 had narrated how the incident took place. According to him, he had gone to enquire about one Viswanathan and when he reached the place of incident, he asked about Viswanathan and the answer was that Swaminathan was in his pocket and on hearing that he stood up and came to the place where the complainant stood and pushed him, then the complainant had beaten him. According to PW6, thereafter the accused had gone inside the weigh bridge and took the material object which is marked as M.O.1 and had beaten him. He would also state that his finger was bitten by him and he was also hit on the head by some stones and therefore as a result of this, he had CRL.A.No.1951 OF 2003 4 sustained the injuries. He had identified the stick used as M.O.1 and the stones as M.O.2 series. He has been cross examined at length by the learned counsel for the defence. There was some discrepancies regarding the size of the stone, that is alleged to be used. Similarly, it has also come out in evidence that he was not in a position to tell the doctor, who examined him first, that who had inflicted the injury. It is also suggested in the cross examination that, he had been tutored by the prosecution to give evidence. It has to be remembered that the F.I. statement of the complainant was taken only after three days and the investigating officer would submit that he was not in a state of mind to give the statement before three days. In this case, one thing is evident that the incident had taken place. It is amply proved by the factum that both of them sustained injuries and that the accused had also gone and got himself admitted in the hospital and later left the hospital without the knowledge of anybody. So a major point regarding the availability of the accused at the place of occurrence is proved in CRL.A.No.1951 OF 2003 5 this case. It is seen from the medical evidence available that the accused had sustained lacerated wounds on the frontal region, skull and incised wound on the right knee, contusion on the sternum and abrasion on the right side of thigh. The doctor who had been examined in this case as PW11, had noted the injuries. According to the doctor, he was conscious at the time of admission and he did not have any fracture. According to the doctor, he can not say that the complainant did not answer anything because he was intoxicated. 6. PW7 is one Anil. He deposed in clear terms that PW6 came to the spot and at that time the accused had attacked him. It is also his version that the accused told the complainant that Swaminathan was in his pocket. Thereafter, the complainant was beaten by the accused and vice versa also. It is also his version that thereafter the accused went inside the weigh bridge and M.O.1 is used and there was a tussle between the two and the complainant got hold of the stick. According to PW7, the accused had beaten the complainant on his head twice or thrice CRL.A.No.1951 OF 2003 6 and thereafter the accused left the place of incident. He had been also cross examined at length and on material point there is no contradictions. So the evidence of PW7 also supports the case of the prosecution. It is true that PWs 1 to 5 had turned hostile but atleast PW1 had admitted the signature in the F.I. statement. The court below found that the intention of murder has not been established in this case and it also found that the injury is not of a serious nature. Therefore, the court has exonerated the accused on the guilt u/s.307 of I.P.C. 7. In order to attract the offence u/s.324 of I.P.C. one has to use an instrument which is likely to cause death. Here, the instrument is a wooden stick which is having a length of 168 cms and circumference of 14.5 cms. If one makes a severe blow on the opponent, or any parts of the body, one can not rule out the possibility of it resulting in the death. Here the injury sustained are on the frontal portion of the head, on the skull, on the chest, on the thigh and these are all capable of resulting in very serious consequences. So, I can not find fault with the court below for CRL.A.No.1951 OF 2003 7 having arrived at a finding that M.O.1 is quite capable of causing death and therefore, the statutory necessity is proved in this case. So from over all discussion of the entire material, I am convinced that the court below was justified in accepting evidence of PWs 6 and 7 coupled with the medical evidence of PW11 and injury sustained to hold that atleast the accused has committed the offence u/s.324 of IPC. 8. Now let me consider about the sentence. The trial court had granted an imprisonment of 2 years and a fine of Rs.5,000/- in this case u/s.324 of I.P.C. The accused has stated that he is burdened with the duty to look after his family and it has also to be stated that, when he pushed the complainant, the complainant had beaten him and so the victim is also partly instrumental for the incident. Of course, whether the necessity was there to beat him with a stick, which had resulted in the conviction of the accused u/s.324 of I.P.C. It is also proved that the complainant was also intoxicated at that time. So taking into consideration all these materials, I feel that justice can be met CRL.A.No.1951 OF 2003 8 by setting aside the sentence of imprisonment and impose a fine of Rs.10,000/- on the accused and in default to undergo simple imprisonment for a period of 2 months. 9. In the result, the criminal appeal is disposed of as follows:- 1. The finding of guilt u/s.324 of I.P.C. is confirmed. 2. The sentence is modified and the accused is sentenced to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for 2 months. When the amount is realised Rs.9,000/- can be disbursed to PW6 as compensation u/s.357(1) of Criminal Procedure Code. Accordingly, the appeal is disposed of. M.N.KRISHNAN, JUDGE ami.