IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 15TH FEBRUARY 2008 / 26TH MAGHA 1929 CRL.A.No. 485 of 2003 SC.117/2000 of ADDL. SESSIONS COURT (ADHOC), THRISSUR CP.30/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... APPELLANTS: ACCUSED 1. ANANDAN, AGED 29 YEARS S/O. AYYAPPAN, KUNATHUPADI HOUSE, CHITTANDA VILLAGE, THALAPPILLY TALUK. 2. MOHANAN S/O. RAMAN, PANDHALANGAD DESOM, CHITTANDA VILLAGE. BY ADV. SRI.DEVAN RAMACHANDRAN RESPONDENTS: RESPONDENTS 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. THE CIRCLE INSPECTOR OF POLICE, WADAKKANCHERRY. BY PUBLIC PROSECUTOR C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON 15/02/2008 DELIVERED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.485 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of February 2008 JUDGMENT Appellants who have been convicted and sentenced to undergo rigorous imprisonment for four years each under Section 307 read with Section 34 IPC have preferred this appeal challenging the above order passed by the 3rd Additional Sessions Judge (Adhoc), Fast Track Court No.1, Thrissur. 2. The prosecution case may be briefly noticed. 3. At about 12.30 a.m. on December 31, 1998 (in the early hours of January 1, 1999) PWs1 to 3 and some of their friends were coming back after attending a music programme in the U.P. School ground at Chittanda. When they had entered the public road from the school ground, appellant No.2/accused No.2 caught hold of the shirt collar of PW1 and asked him and all others in general whether they were workers of Communist Party of India. Some altercations followed. At that time, accused No.2 asked accused No.1 to finish off PW1. Immediately accused No.1 took out M.O.1, chopper and slashed it on the left Crl.A.No.485 OF 2003 :: 2 :: side of the head of PW1 resulting in an incised wound 8 cms x 0.5 cm on the scalp and a fracture on the outer aspect of the skull. PW2 was also attacked with the chopper. He sustained an incised wound of 1 cm x 0.5 cm on the right wrist. According to PW1, when he raised alarm some people came to the scene. He further stated that PW2 sustained the injury on his wrist when he tried to ward off the attack with the chopper. PW1 and 2 were taken to the Government Hospital at Wadakkanchery in an auto by Babu, Sajeevan, etc. The prosecution alleged that the accused had attacked PW1 and 2 because of political rivalry. PWs 1 and 2 were formerly workers of C.P.I.(M). But they shifted their loyalty and joined C.P.I. It was because of this rivalry that the accused who belonged to C.P.I.(M) had attacked and inflicted the injuries. 4. Prosecution had examined PWs 1 to 8. Exts.P1 to P13 and M.O.1 and 2 were marked on its side. There was no oral or documentary evidence on the side of the accused. 5. On a careful and meticulous examination of the oral and documentary evidence on record, the learned Sessions Judge Crl.A.No.485 OF 2003 :: 3 :: found that the prosecution had satisfactorily established that the accused had committed the offences alleged against them and accordingly they were found guilty under Section 307 read with Section 34 IPC and convicted and sentenced thereunder. 6. It is contended by learned counsel for the appellants that the court below was not at all justified in placing reliance on the interested testimonies of PWs 1 to 5 who were supporters/workers of C.P.I. He further contends that the material contradictions in the prosecution case had been totally overlooked by the trial court. The weapon allegedly used by the assailants was not properly identified. Recovery of the weapon was effected after more than five months. No blood stain was found on the alleged weapon. It is also contended by the learned counsel that the versions given by the PWs1 to 3 about the alleged incident were contradictory to each other. 7. As mentioned earlier, the alleged incident had taken place at about 12.30 in the night. The specific case of PWs 1 and 2 who had sustained the injuries and also PW3, the eye witnesses who had been accompanying PWs1 and 2 was that the Crl.A.No.485 OF 2003 :: 4 :: incident had taken place on the public road just outside the school ground where a music programme had been held. These witnesses stated that the incident took place when they had just come out of the ground and entered the public road. There were several tube lights at that place which were put up for the purpose of the programme. It was in that light the three witnesses had clearly identified their assailants. 8. PW1 had asserted that accused No.2 had caught hold of his shirt collar and after confronting them, accused No.2 asked them whether they belonged to C.P.I. This resulted in some push and pull. At that time, accused No.2 shouted ‘kill him’ and it was then accused 1 had taken out M.O.1 chopper and inflicted the wound on the left side of the head of PW1. An attempt was made to inflict wound on the body of PW2. But when PW2 tried to ward it off, he sustained an injury on his right wrist. PW2 had narrated the above incident in an almost identical manner. PW3 the independent eye witness had also spoken about the incident and had specifically referred to the overt acts of the two accused. It is true that there are some minor discrepancies in Crl.A.No.485 OF 2003 :: 5 :: the versions given by these three witnesses, which are quite probable and unavoidable. 9. It may be remembered that the assailants had carried out the attack all on a sudden and everything had been finished within a few seconds. But the material part of the prosecution case was that the PWs1 and 2 had sustained the injuries in the attack carried out by the accused. The injured were immediately taken to the nearest hospital where PW7 had examined them. It is seen from Exts.P5 and P7 wound certificates that the doctor had seen the injured at 1 a.m., within half an hour of the alleged incident. In both these certificates, PWs 1 and 2 had clearly mentioned the names of the two accused and had stated that the accused had inflicted the injuries on them. Of course, in Exts.P5 and P7, the doctor had recorded that the injured had told him that the two accused had inflicted injuries with sword stick. But the Police had recovered a chopper (M.O.1) from the residence of the wife of accused No.1, pursuant to the statement given by him. M.O.1 has been described as a chopper in the court records. As rightly noticed by the learned Sessions Judge, the Crl.A.No.485 OF 2003 :: 6 :: blade of the said weapon had got a length of 40 cm. and its handle had a length of about 20 cm. The width of the blade was about 5 cms. So obviously, the weapon had a total length of 2 feet. Even assuming that PW1 and 2 had described it as a sword stick (vadivalu), it cannot be stated as a material contradiction or flaw in the prosecution case. The crucial aspect was that PWs 1 to 3, especially PW1 and 2 had correctly identified M.O.1 in the court. 10. It is true that when M.O.1 was examined by the Chemical Examiner, he had not detected any blood stain on it. But it has to be remembered that M.O.1 was examined more than 8½ months after the alleged incident. Further, it was recovered from the residence of the wife of accused No.1 on June 15, 1999, the date when he was arrested. Till that time, he had been absconding. As mentioned earlier, the weapon was recovered on the basis of the information furnished by the accused under Section 27 of the Evidence Act. Recovery was witnessed by PW5, who had also signed in Ext.P3, seizure mahazar. In short, the prosecution, in my view, had Crl.A.No.485 OF 2003 :: 7 :: satisfactorily established its case that M.O.1 was the weapon used by the accused to inflict the injuries on PWs1 and 2. The prosecution had successfully proved the charge against the accused. The weapon used for the assault was also properly identified. 11. Yet another contention raised by the appellants is that all the material witnesses namely, PWs1 to 5 were either supporters or workers of C.P.I. I do not find any reason to disbelieve the testimonies of these witnesses for the sole reason that they belonged to the rival political party of the appellants. PWs 1 and 2 fairly admitted that they belonged to C.P.I. Similarly, PWs3 to 5 also admitted that they were sympathizers of C.P.I. Even if we eschew the evidence of PWs 3 to 5, the evidence of PW1 and 2 coupled with Exts.P5 and P7, wound certificates and evidence of PW7, the doctor, would undoubtedly show that the prosecution had succeeded in proving its case. At the risk of repetition, it may be stated that PW1 and 2 had reached the hospital in less than half an hour and the doctor had examined them promptly. In the certificates, PW7 had recorded Crl.A.No.485 OF 2003 :: 8 :: that the two victims (PW1 and 2) had categorically mentioned the names of the two accused. In that view of the matter, I do not find any reason to disbelieve PWs 1, 2 and 7. 12. Having carefully perused the depositions of the witnesses and the material documents produced by the prosecution in support of its case, I am satisfied that court below was justified in holding the appellants guilty under Section 307 read with Section 34 IPC. PW1 had sustained a fracture on the left side of his skull. The other injury sustained by him was an incised wound having a size of 8 cms x 0.5 cms on the skull. PW2 had managed to escape with an incised wound on his wrist when he warded off the attack. Therefore, the court below in my view was justified in accepting the prosecution version that the accused had committed the offence punishable under Section 307 read with Section 34 IPC. Therefore, the order of conviction is confirmed. 13. However, having regard to the fact that the alleged incident had taken place more than 11 years ago and the injuries sustained by the two victims were not that serious, I am satisfied Crl.A.No.485 OF 2003 :: 9 :: that the sentence can be modified and reduced. Therefore, in modification of the sentence imposed on the appellants, they are directed to undergo rigorous imprisonment for two years each under Section 307 read with Section 34 IPC. Appellants will be entitled to set off the period of detention already undergone by them. The appeal is allowed in part to the above extent. (A.K.BASHEER, JUDGE) jes Crl.A.No.485 OF 2003 :: 10 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.485 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Dated 15th Feb. 2008