IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 CRL.A.No. 1472 of 2003(C) ------------------------------------- SC.NO.217/1999 OF ADDL.SESSIONS COURT (ADHOC-I), ALAPPUZHA. .................... APPELLANT/ ACCUSED: ----------------------------------- KUNJACHAN, S/O. MADHAVAN, THANDANVILA LAKSHAM VEEDU, CHUNAKARA VADAKKUM MURI, CHUNAKARA P.O. BY ADV. MR.K.SASIKUMAR. RESPONDENT: ---------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.N.KRISHNAN, J. ........................................... CRL.A.NO.1472 OF 2003 ............................................. Dated this the 21th day of August, 2009 J U D G M E N T This is an appeal preferred against the conviction and sentence passed in S.C.No.217/1999 of the Additional Sessions Judge, Fast Track Court, (Adhoc-I), Alappuzha. The accused was charge sheeted by the police for the offences under Sections 324,308 and 452 of the IPC. The court found the accused guilty under Section 452 and 324 of the IPC and sentenced him to undergo two years imprisonment and to pay a fine of Rs.2,000/= under Section 324 and 3 years imprisonment and Rs.3,000/= under Section 452 and the sentence of imprisonment was directed to run concurrently and the default sentence was directed to run consecutively. An amount of Rs.4,000/= was ordered to be paid to PW1 as compensation. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether there are sufficient materials to hold the accused guilty under Sections 324 and 452 of the IPC (2) in : 2 : CRL.A.NO.1472 OF 2003 case of guilt, what is the proper sentence. 3. It is the case of the prosecution that on 30.3.1999 while PW1 was sitting in her house talking with her brother Janardhanan, the accused trespassed into the house and asked her to give amount to him and when she questioned the same, with a wooden stick he was having, had beaten her on the forehead above the eyebrow which resulted in injuries to her. Therefore, it is alleged that he has committed the offence under Sections 324, 452 and 308 of the IPC. 4. The court below after trial found that Section 308 of the IPC is not proved and found the accused guilty under Sections 324 and 452. The court also did not believe the evidence of PW2- her husband to arrive at a decision. A perusal of the evidence of PW1 would show that her husband had come only after the alleged incident and he had seen the accused going from the house by pushing him. Unfortunately, brother of the complainant - Janardhanan is not alive. The law was set in motion by filing Ext.P1 statement. It is stated in Ext.P1 that the accused had come : 3 : CRL.A.NO.1472 OF 2003 into the house while she was talking with Janardhanan and demanded amount and when she asked what was the amount due, he accused her and thereafter had beaten her with a stick in his hand resulting injuries to her. It is submitted that the accused had possessed some property of her relative and when it was sold, no amount was paid to him and that had created a friction between her and the accused. 5. Ext.P2 is the wound certificate. On the same day at 7.30 p.m she was admitted in a hospital with a lacerated injury on the right occipital region of 8x1/2 cm dimension, a lacerated injury right eyebrow 2 x 1/2 cm and contusion on the right molar region. The said wound certificate is proved by examining the doctor - PW3. He had stated that the injury can be caused with a stick like MO1. But he had not stated anything about the seriousness of the injury and classified it as a skull deep injury. So, the factum that PW1 had sustained injuries on 30.3.1999 is proved by the medical evidence. Now, the evidence available to connect the accused with the crime is that of PW1. She had stated in the : 4 : CRL.A.NO.1472 OF 2003 chief examination in line with Ext.P1 statement and had stated that the accused had trespassed into the house and had beaten her and had caused injuries. According to her, she had been beaten thrice; one while she was sitting, the other when she was attempting to raise and the third one when she was lying down. According to her, husband had come when he heard the hue and cry of her. She had been cross examined at length and the evidence makes it clear that threatening to kill was not there and it is not properly substantiated. Some minor contradictions here and there had been brought out in the evidence. It has to be remembered that the incident takes place in the year 1999 and she was examined before the court in the year 2003. So one may not be able to picturise what had exactly happened on a day which had taken place long back. The lady is not very educated and therefore it is always possible to have minor contradictions here and there. It is a well settled preposition that when a witness gives evidence in a tailoring style, it can be classified as a tutored evidence whereas when there are some contradictions and : 5 : CRL.A.NO.1472 OF 2003 embellishment, it will make the evidence very natural and trust worthy. Time and again it has to be remembered that when an injured tenders evidence before a court of law, the interest of a person would be to convict a person who had really done harm to him or her. They will not allow a culprit to escape and to punish an innocent. The incident had taken place at about 5.30 p.m when there was proper light. She was speaking with her brother Janardhanan sitting on a stool. It was at that time, the accused had come there with a stick and he demanded money. When she refused to pay the amount, he had beaten her. The suggestion given by the accused is that there was some fight between the complainant and one Bhargavi and that the complainant had a feeling that the accused had supported her. What was the reason for the accused to go into the house of the complainant and does some act is a matter to be considered. The evidence of PW1 except some minor contradictions here and there speaks about the factum of the entry of the accused into the house and subsequently, giving her blow with the stick available. When an injury is : 6 : CRL.A.NO.1472 OF 2003 caused by virtue of an instrument it will attract an offence under Section 324 and Section 452 will be attracted when a person enters into a house with the intention to cause some harm. It has to be stated that if one wants to ask for money alone, one need not carry a wooden stick. So, it is clear that the intention was to do something more than mere demand of money. So, an over all analysis of the materials I cannot find fault with the learned Sessions Judge for having arrived at a decision that the accused has committed the guilt under Sections 324 and 452 of the IPC. 6. Now turning to the question of sentence. The learned counsel for the appellant very strongly contends before me that the accused is now aged 71 years and he is a physically disabled man and sentencing him to undergo imprisonment will create problem for him and the other members of his family and therefore a maximum leniency should be shown. From the 313 statement available before me, I find that the accused should be 71 years by this time. When questioned under Section 313, it is seen that the wife of the accused had undergone a brain surgery and she is : 7 : CRL.A.NO.1472 OF 2003 undergoing treatment and he is the person to look after them. Considering the peculiar facts, I feel the sentence of imprisonment can be reduced to one which he had already undergone as a pre-trial prisoner and justice can be meted out to the complainant by directing the accused to pay more compensation. I make it clear that it is on account of the age of the accused and the attending circumstances, I am inclined to take a lenient view. 7. Therefore, the sentence is modified and the imprisonment part is reduced to one which he had already undergone and he is directed to pay a fine of Rs. 5,000/= under Section 324 and Rs.15,000/= under Section 452 of the IPC. Of this amount, Rs.18,000/= shall be disbursed to the complainant as compensation under Section 357(1) of the Cr.P.C. 8. In the result, the criminal appeal is disposed of as follows: 1. The finding of guilt under Sections 324 and 452 is confirmed. 2. Sentence is modified and the sentence of : 8 : CRL.A.NO.1472 OF 2003 imprisonment is reduced to the period of under trial custody he had undergone. He is sentenced to pay a fine of Rs.5,000/= under Section 324 IPC and Rs,.15,000/= under Section 452 IPC and in default to undergo S.I for two months each for the default consecutively. On realisation of the fine amount, the amount of Rs.18,000/= shall be disbursed to PW1 as compensation under Section 357(1) Cr.P.C M.N.KRISHNAN, JUDGE cl : 9 : CRL.A.NO.1472 OF 2003 M.N.KRISHNAN, JUDGE cl : 10 : CRL.A.NO.1472 OF 2003