IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 CRL.A.No. 2447 of 2007() ------------------------ SC.99/2004 of ADDL. SESSIONS COURT, (ADHOC), PALAKKAD .................... APPELLANT: APPELLANT:ACCUSED: ----------------------------- P.M. SANKARAN, S/O. MANU, C.NO.6227, CENTRAL PRISON, VIYYUR, THRISSUR-10. BY ADV. SMT.M.SINDHU THANKAM RESPONDENTS: ------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.Appeal. No.2447 of 2007 ------------------------------------- Dated this the 9th day of June, 2008 The appellant challenges the verdict of guilty, conviction and sentence imposed on him in a prosecution under Section 308 I.P.C. He has been sentenced to undergo R.I for a period of 3 years and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo R.I for a further period of 6 months. 2. The prosecution alleges that the appellant had inflicted a stab injury on PW1 at about 11 a.m on 16.12.03. Political animosity and an exchange of words etc. earlier on the same date were the alleged motives. PW1 belongs to the B.J.P and the petitioner is opposed to the said party, it is alleged. When Pws 1, 2 and 3 - all friends and persons belonging to the B.J.P, were engaged in the activity of affixing B.J.P postures, the accused allegedly stated that they are “ambalam vizhungikal” (those who swallow temples) and there was an exchange of words on this court. The accused allegedly went away from that scene. He later came back with M.O 1 knife and he allegedly stabbed PW1 with such knife. PW1 suffered injury and he was rushed to the local hospital where the doctor examined him at 12 noon on 16.12.03. At the hospital his statement-Ext.P1 was recorded by Crl.Appeal. No.2447 of 2007 2 PW9 Head constable. On the basis of Ext.P1, Ext.P7 F.I.R was registered at the police station. The same was sent to the Magistrate and the learned Magistrate received the same at 11 a.m on 17.12.03. Investigation was commenced. In the course of investigation, Pws 2 and 3 eye witnesses were examined. PW4- another eye witness, was also examined. He turned hostile. PW5- the doctor had issued Ext.P3 wound certificate. PW6 had produced before the police M.O 2 shirt, which PW1 was wearing at the relevant time and Ext.P4 seizure mahazar was prepared for such seizure. PW7 is an attester to Ext.P5 seizure mahazar under which M.O 1 knife was produced by PW2 before the police and the same was seized. PW9 Head constable had recorded Ext.P1. PW8 Village officer perused Ext.P6 scene plan. His superior, an Assistant Sub Inspector, who had subsequently retired and was afflicted with cancer, could not be examined in court. He was the Investigating Officer Ext.P2 scene mahazar attested by PW4 was prepared by the Investigating Officer. Ext.P7 F.I.R was prepared on the basis of Ext.P1. Exts.P4 and P5 seizure mahazars for seizure of M.Os 2 and 1 were prepared by the Investigating Officer. He submitted Ext.P8 report furnishing to the court the address and details of the accused. Crl.Appeal. No.2447 of 2007 3 3. Investigation was completed and final report was filed before the learned Magistrate. Cognizance was taken. The case was committed to the Court of Session. The accused denied the charges levelled against him and thereupon the prosecution examined Pws 1 to 9 and proved Exts.P1 to P8. Pws 3 and 4 did not support the prosecution case in full. 4. In the course of cross examination of Pws 1 to 4 and in the course of 313 examination, the accused took the stand that false allegations were being raised against him by Pws 1 and 2 on account of political animosity. He was not the aggressor, but he was only the victim of aggression, it was contended. No defence evidence was adduced. 5. The learned Sessions Judge on an anxious consideration of all the relevant inputs came to the conclusion that it was safe to accept and act upon the oral evidence of Pws 1 and 2. Their evidence is corroborated by the contemporaneous F.I statement-Ext.P1 lodged at 4 p.m as also the statement given to the doctor at 12 noon on the same date, the incident having taken place at 11 a.m earlier. The learned Judge further observed that the evidence of PW5-doctor and the contents of Ext.P3 wound certificate do also broadly support the version of Pws 1 Crl.Appeal. No.2447 of 2007 4 and 2. PW3 though he had turned hostile, it was found that his evidence does also support the case of the prosecution broadly. It was accordingly that the learned Judge proceeded to pass the impugned judgment. 6. Arguments have been advanced before me by the learned counsel for the appellant. The counsel first of all submits that no reliance should have been placed on the oral evidence of Pws 1 and 2. They are both B.J.P workers; they are friends; they are interested in each other. Admittedly they were involved in an earlier incident against the accused. In these circumstances, their evidence must be scrutinised with very great care and caution, contends the learned counsel for the appellant. 7. The learned counsel further contends that Pws 3 and 4 have turned hostile to the prosecution. PW3 has, of course, supported the prosecution case in part. But PW4 has not supported such evidence at all. The learned counsel then submits that there was availability of many other witnesses even going by the prosecution version. These independent witnesses have not been examined at all. The prosecution is maliciously choosing to place before court only the evidence of Pws 1 to 3. There are political activists and comrades in arms. It would be idle to Crl.Appeal. No.2447 of 2007 5 expect truth from them if actually the incident had taken place in the manner alleged by the accused. The learned counsel, in these circumstances, prays that the oral evidence of Pws 1 to 3 may be discarded. 8. The learned counsel for the appellant further contends that though as per the version of PW1 at least 3 injuries must have been found on the person of PW1, there is only one injury and that is described as a cut injury without giving any dimensions. According to the counsel for the appellant that injury must in all probability had been suffered when Pws 1 to 3 attacked the accused when he was sitting in his autorickshaw and some projecting surface of the autorickshaw came into contact with the body of PW1 with some force. Counsel relies on the fact that in Ext.P3 wound certificate it is not alleged that there was any violence using any weapon. The counsel further submits that the doctor was not shown M.O 1 knife by the investigator and there is nothing to conclude that the injury suffered by the victim described in Ext.P3 could be the result of using a weapon like M.O 1. The counsel further contends that the Investigating Officer has not been examined and this has resulted in prejudice against the accused. Finally the counsel contends that in any view of the Crl.Appeal. No.2447 of 2007 6 matter only an offence under Section 324 I.P.C is revealed and conviction under Section 308 I.P.C is not justified at all. Lastly the counsel submits that in any view of the matter the sentence imposed is excessive and deserves to be reduced. 9. I have considered all the relevant inputs. Pws 1 and 2 as also PW3 are admittedly B.J.P workers. The incident took place as a sequel to an earlier incident which had taken place, wherein the appellant is alleged to have insulted Pws 1 to 3 by making derogative remarks about their political party. It is also true that no other eye witness, who is not interested in the dispute, has been examined. 10. But all these do not persuade me to throw overboard the evidence of Pws 1 and 2 in an omnibus manner. Their evidence is supported by the prompt statement made in Ext.P1 F.I statement. Such version of theirs is considerably corroborated by the statement made to the doctor-PW5 recorded in Ext.P3. The mere fact that the use of the weapon is not specifically mentioned to PW5 or even the fact that the assailant is not named in the wound certificate is not according to me sufficient reason to generate any doubt against the version of Pws 1 and 2. It is not without relevance to note that in the 313 examination the Crl.Appeal. No.2447 of 2007 7 accused had no case that he was attached by Pws 1 to 3. Significantly he is not shown to have any injury on his person. The fact that the medical officer PW5 has not described all the relevant measurements of the injury in Ext.P3 is according to me not sufficient to generate any reasonable doubt in favour of the appellant. That the Investigating Officer who was retired and laid up and could not be examined cannot also deliver to the appellant any undeserved advantage. 11. Taking the totality of circumstances into consideration, I take the view that the evidence relied on by the prosecution is sufficient to persuade a court to conclude and confirm the conclusion that the injury described in Ext.P3 was suffered by PW1 at the hands of the accused. There is absolutely no circumstances to show that in that incident which took place the appellant was the victim and Pws 1 to 3 the aggressors. 12. The non examination of the Investigating Officer who was laid up is also not sufficient, in the facts and circumstances of this case, to generate any reasonable doubt against the version of the prosecution. 13. Coming to the question about the section of offence made out, the nature of the weapon as also the injury must Crl.Appeal. No.2447 of 2007 8 convey to the court eloquently the intentions of the accused. In Section 308 I.P.C the intentions of the accused are of crucial importance. It would be idle expect oral evidence about the intentions entertained by an accused person. But the nature of injury suffered, the situs where the injury is inflicted, the nature of the weapon used are all indications which can and do reveal the true intention of the accused. The description of M.O 1 as also the injury described in Ext.P3 do clearly show that the conviction under Section 308 I.P.C is justified and does not warrant any interference. 14. Coming to the question of sentence, I do note that the appellant is not shown to have any criminal antecedents. At least in respect of the incident which allegedly triggered off the earlier incident it can be seen that Pws 1 to 3 had gone to the accused only to question a comment made by him. I do further note that the appellant has remained in custody from 17.12.03 to 07.07.04 and from 19.04.07 to this day. Considering the totality of circumstances, I am satisfied that a lenient view can be taken and the sentence imposed can be modified and reduced. 15. In the result : a) This Appeal is allowed in part; Crl.Appeal. No.2447 of 2007 9 b) The verdict of guilty and conviction of the appellant under Section 308 I.P.C are upheld; c) But the sentence imposed on the appellant is modified and reduced. In supersession of the sentence imposed on him by the court below, he is sentenced to undergo R.I for a period of 2 years. The sentence of fine is confirmed. The default sentence is reduced to R.I for a period of 3 months. 16. Communicate copy to the Sessions Court. The Court shall take immediate steps to issue revived warrant of commitment. (R.BASANT, JUDGE) rtr/- Crl.Appeal. No.2447 of 2007 10 R.BASANT,JUDGE =============== Crl.Appeal.NO.2447 OF 2007 ============== JUDGMENT DATED, 9TH JUNE, 2008