IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 14TH JANUARY 2011 / 24TH POUSHA 1932 CRL.A.No. 1376 of 2010() ------------------------ SC.239/2009 of ADDL. SESSIONS COURT (ADHOC-I), THALASSERY .................... APPELLANT: -------------- C.MURUKAN,S/O.SELVARAJ NADAR, C.NO.8470, CENTRAL PRISON, KANNUR. BY ADV. SRI.ADEEP ANWAR (STATE BRIEF) RESPONDENT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. HEMA, J ---------------------- Crl.Appeal.No.1376 OF 2010 ----------------------------------- Dated 14th January, 2011 J U D G M E N T This appeal arises from the conviction and sentence passed against appellant under section 308 of Indian Penal Code ('IPC' for short) to undergo rigorous imprisonment for three years and also to pay fine of Rs.20,000/- in default simple imprisonment for six months for his conviction under section 308 IPC. Fine if realised, Rs.15,000/- was ordered to be paid to PW6 - the injured as compensation. Set off was allowed. 2. According to prosecution, appellant and PW6- the injured were staying in the same room in a lodge. Both of them are coolie workers. There was some quarrel between them since appellant refused to pay half of the rent to be paid in advance in December, 2008. Since PW6 was insisting for payment, appellant was inimical towards him. On 12.12.2008 at about 6.45pm, while PW6 was resting in his room, accused went to the room and inflicted injuries on him with a chopper, MO1. The cut was aimed at neck and appellant evaded and therefore he sustained injuries Crl.A. No.1376/10 2 on shoulder and other parts of the body. 3. The act was done by the appellant, allegedly with the knowledge that it would cause death and accused allegedly committed offence under section 308 of IPC. On hearing the cries, PW1 the person residing in the next room came running. PW6 was taken to the hospital. On the First Information Statement made by him, a crime was registered and after investigation, a charge was laid against appellant under section 308 IPC. 4. To prove prosecution case, prosecution examined PW1 to PW9, marked Ext.P1 series to Ext.P9 and MO1. Accused did not adduce any evidence. While questioned under section 313 of Code of Criminal Procedure, he contended that he knew PW6 and they used to go for coolie work together. But they had not resided in the same room. He did not commit the offence. Accused and appellant were good friends. But he is implicated in this case, for no reason. 5. The trial court, on an analysis of the evidence, found that evidence of PW6 is believable. The court rejected all the contentions raised by appellant and convicted him for offence under section 308 of IPC. The trial court also found that evidence Crl.A. No.1376/10 3 of PW6 is supported by medical evidence. 6. This appeal was filed from jail. Appellant was undefended and hence, Adv. Mr. Adeep Anwar was appointed as State Brief. Heard both sides. Perused records. Learned counsel for appellant argued that PW1 is not an eye witness to occurrence. There is only evidence of PW6, but it is not consistent with the First Information Statement given by PW6. It was pointed out that as per First Information Statement, accused cut him immediately on opening the door of the room where as in the evidence, PW6 had no such case. At page no.7 of deposition of PW6, he alleged that appellant had cut him with a chopper, which was kept in the room. Therefore, appellant is to be acquitted, it is submitted. 7. Learned public prosecutor argued that evidence of PW6 is convincing and it is supported by other evidence also. On hearing both sides and on going through the records, I find that PW6 has given evidence consistent with the prosecution case. He deposed that he was residing in the same room in a lodge along with accused and they were sharing the room rent. He had requested appellant to give rent for December, 2008 in advance. Therefore, he developed enmity towards him and on the date of Crl.A. No.1376/10 4 occurrence, on 12.12.2008 between 6.30 and 7 pm, when he was available in the room, accused cut him with a chopper towards his neck. 8. PW6 deposed that he warded off the cut and it fell on the shoulder. He was again cut and he sustained injuries on the head, fingers etc. When he cried, PW1, who is residing in the next room came running and appellant abandoned chopper in the room and left the place. PW6 was taken to the hospital and he gave First Information Statement from hospital. 9. Though PW6 was cross examined, nothing material was brought out from his evidence to discredit his version. Though some inconsistencies in the First Information Statement were pointed out, I find that PW6 who is the maker of the statement was not confronted with the same. First Information statement is not substantive evidence and it can be used only for corroboration of contradiction, as a former statement. In the absence of confronting PW4 with the contradiction in the F.I. Statement, the argument raised on the inconsistencies, if any cannot be looked into. (Vide Utpal Das v. State of West Bengal 2010 (6) SCC 493) 9. It is relevant to note that PW6 was taken to the hospital and he was examined at 7.55 pm, within few minutes of the Crl.A. No.1376/10 5 incident. He was examined by PW5, doctor and appellant told doctor that he was cut by Murukan (appellant) with a chopper. Incise wounds were found on the body of PW6. The nature of injuries noted on the body of PW6 tallied with the possibility of causing the same with MO1. Doctor also stated those injuries can be caused with MO1- chopper. 10. On an analysis of the evidence as a whole, there is nothing on record to show that why PW6 should falsely implicate appellant if he is innocent as contended. The fact that PW6 sustained certain injuries on his body as revealed from medical evidence cannot be disputed. There is nothing on record to show that PW6 had any reason to exonerate the actual culprit and foist a false case against appellant on perjure against him. As per the statement of appellant, PW6 and himself are good friends. It is also to be noted that within a few minutes of the incident, PW6 has implicated appellant while he was examined by the doctor. As stated by trial court, I too find a ring of truth in what PW6 stated in court. 11. It is true that PW1 is not an eye witness to occurrence. Prosecution itself has no case that there was an eye witness. PW1 deposed that appellant and PW6 were residing in the room Crl.A. No.1376/10 6 adjacent to the room occupied by PW1 in the same lodge and both of them were residing in the same room. He stated that PW6 was found in the room, blood stained and appellant was also found outside the room. There is nothing in evidence to show that appellant had in any manner helped PW6 to go to the doctor or to give any medical aid. 12. Though PW1 turned hostile, his evidence is corroborated the evidence of PW6 to certain extent as stated above. Taking all these facts into consideration, I find there is absolutely no reason to interfere with the conviction entered against appellant. The sentence awarded in this case is only for three years imprisonment and pay fine of Rs.20,000/-. Considering facts of the case and the circumstances of the accused and the victim, I do not find that sentence is excessive or disproportionate to the gravity of offence. There is no reason to interfere with the sentence. This appeal is dismissed. Sd/- K. HEMA, JUDGE. Sou. // True copy // P.A. to Judge.