IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.THANKAPPAN THURSDAY, THE 9TH AUGUST 2007 / 18TH SRAVANA 1929 CRL.A.No. 508 of 2006() ----------------------- SC.207/2004 & 1659/2004 of ADDL. DISTRICT & SESSIONS COURT (FAST TRACK COUORT -I) THIRUVANANTHAPURAM CP.8/2003& 90/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL ................... APPELLANT: 1ST ACCUSED ---------------------- BINU, S/O. BABU, THIRUVATHIRAVILA VEEDU, KATTADIMUKKU, AZHOOR DESOM, AZHOOR VILLAGE. BY ADVS. SRI.M.DINESH SRI.BASANT BALAJI RESPONDENT: COMPLAINANT ------------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. THOMAS JOHN AMBOOKKAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/08/2007 ALONG WITH CRL. APPEAL NO.682 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN CRL. M.A.NO. 2349 OF 2006 IN CRL. APPEAL NO.1128 508 OF 2006. DISMISSED 9.8.2007 Sd/- (K.THANKAPPAN, JUDGE) K.THANKAPPAN, J. ---------------------------------------------- CRL. APPEAL NOS. 508 OF 2006 & 682 OF 2007 ---------------------------------------------- Dated this the 9th day of August, 2007 JUDGMENT The appellant in Crl. Appeal No. 508 of 2006 is the accused in S.C. Nos.207 of 2004 on the file of the Additional District and Sessions (Fast Track Court-I), Thiruvananthapuram and the appellant in Crl. Appeal No.682 of 2007 is the accused in S.C. No.1659 of 2004 before the same court. Crl. Appeal No.508 of 2006 is filed by the first accused and Crl. Appeal No.682 of 2007 is filed by the second accused. Both the accused faced trial for the offence punishable under Section 302 read with Section 34 I.P.C. 2. The prosecution case against the appellants - accused was that on 19.12.2001 at about 6.30 p.m. while deceased Vijayan, the security guard of Chirayinkeezhu Taluk Head Quarters Hospital was on duty at the main gate of the hospital, the first and second accused went to the main gate and attempted to enter the hospital. The further case of the prosecution CRL.A.NOS.508/06 & 682/07 2 was that when deceased Vijayan obstructed the accused from entering the hospital as the visiting time was over, with the common intention of causing the death of deceased Vijayan the second accused slapped him on the left cheek and the first accused kicked him on his chest and when the deceased fell down, the first accused fisted him on his right cheek and right side of back and that deceased Vijayan succumbed to the injuries at 9 p.m. on the same day while he was undergoing treatment at the Medical College Hospital, Thiruvananthapuram. To prove the case against the accused, the prosecution examined PWs.1 to 19 and produced Exts.P1 to P24 and MOs.I to IV. No witness was examined on the side of the defence, but Exts.D1 to D8 were produced. On closing the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. Both the accused denied the allegations levelled against him and stated that they were arrested from their house by the Sub Inspector of Police. After considering the evidence adduced by the prosecution, the trial court found both the accused not guilty under Section 302 read with Section 34 I.P.C. But, the trial court found them guilty under Sections 323 and 325 read with Section 34 I.P.C., convicted them thereunder and sentenced them to undergo rigorous imprisonment for one year each and to pay a fine of Rs.1000/- each and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months each under Section 323 CRL.A.NOS.508/06 & 682/07 3 read with Section 34 I.P.C. Both the accused were also sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.10,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a further period of one and a half years each under Section 325 read with Section 34 I.P.C.. The substantive sentences were ordered to run concurrently. Set off was also allowed under Section 428 Cr.P.C. It was further ordered that out of the fine amount, Rs.20,000/- shall be paid to the legal heirs of deceased Vijayan as compensation under Section 357(1) Cr.P.C . The above conviction and sentences are challenged in these appeals. 3. Crl. Appeal No.682 of 2007 is filed through the jail authorities as the second accused is in jail and hence he is defended by a State Brief. This Court heard the learned counsel appearing for the appellants as well as the learned Public Prosecutor. 4. Learned counsel appearing for the appellants raised the following contentions: (i) the trial court committed serious error in accepting the evidence of PWs.2, 3 and 5 to find that the appellants committed the offences alleged against them, (ii) the prosecution failed to prove that the death of deceased Vijayan was on account of the injuries CRL.A.NOS.508/06 & 682/07 4 sustained by him, (iii) the evidence adduced by the prosecution would not prove that the appellants committed the offences voluntarily and with some motive and (iv) the sentences awarded against the appellants are excessive. 5. The trial court mainly relied on the evidence of PWs.2, 3 and 5. PW.5 was the Pharmacist attached to the Chirayinkeezhu Taluk Head Quarters Hospital during the relevant time. He stated at on 19.12.2001 at about 6.30 p.m. while he was engaged in the Pharmacy, he heard some commotion at the gate and then he saw two persons quarrelling with deceased Vijayan and he identified the two persons as the first and second accused. This witness further stated that he saw the two accused persons slapping and kicking deceased Vijayan and that on seeing them beating and kicking deceased Vijayan, he went over to them and tried to stop them. He further stated that the by standers also came to the scene of occurrence whereupon the accused left the place and deceased Vijayan went after them and that later he saw some people bringing deceased Vijayan to the hospital. This witness further stated that at that time deceased Vijayan was having difficulty in breathing, he was treated by the doctors and then taken to the Medical College Hospital, Thiruvananthapuram where he died. He also stated that while going to the Medical College Hospital, deceased Vijayan was conscious and that he was seen talking to his wife. CRL.A.NOS.508/06 & 682/07 5 6. The evidence of PW.5 is corroborated by the evidence of PWs.2 and 3. PW.2 was an employee of the hospital. His duty was to issue pass to the visitors of the hospital. He stated that he was on duty at the main gate on the date of the incident and that deceased Vijayan was the security at the main gate. This witness further stated that at about 6.30 p.m. he saw two persons trying to enter the main gate and deceased Vijayan obstructing them. This witness also stated that he was not aware of the names of the accused. Even though this witness was declared hostile by the prosecution, he had stated that he identified the accused at the police station and also the dress worn by the accused. This witness had properly identified the appellants as the persons who had quarrelled with deceased Vijayan. PW.3 was working as Second Grade Attender in Chirayinkeezhu Taluk Head Quarters Hospital during the relevant time. Though this witness was declared hostile by the prosecution as she did not support the statement given by her under Section 161 Cr.P.C., she gave evidence in support of the evidence given by PWs.2 and 5. All these three witnesses identified the appellants, both in the court as well as at the police station, as the persons who had beaten and kicked deceased Vijayan on the date of the incident. CRL.A.NOS.508/06 & 682/07 6 7. PW.8 was the doctor who issued Ext.P14 case sheet in respect of the wife of the second accused. This would prove that the wife of the second accused was admitted in the hospital. The evidence of this witness would also show the reason for the attempt made by the second accused to enter the hospital. The identity of the accused is, therefore, proved beyond reasonable doubt. 8. PW.1 was the Assistant Surgeon of the hospital during the relevant time. This witness stated that deceased Vijayan had informed him about the attack on him by the accused and that though he did not do anything at that moment, about ten minutes later deceased Vijayan was brought to him and that on examining it was found that deceased Vijayan was in a critical condition. He further stated that after giving first aid, deceased Vijayan was sent to the Medical College Hospital, Thiruvananthapuram and then he gave Ext.P1 first information statement to PW.16, the then Sub Inspector of Police, Chirayinkeezhu. This witness did not fully support the prosecution case and hence he was declared hostile. Though this witness stated in Ext.P1 that he had witnessed the occurrence, he deviated from this statement when examined in court. PWs.6 and 7, the wife and son respectively of deceased Vijayan stated that they came to the place of incident on getting information regarding the CRL.A.NOS.508/06 & 682/07 7 incident and that they had accompanied deceased Vijayan to the Medical College Hospital, Thiruvananthapuram. PW.6 also stated that deceased Vijayan was a heart patient and was undergoing treatment. 9. The Lecturer in Forensic Medicine and Assistant Police Surgeon at Medical College, Thiruvananthapuram was examined as PW.9. This witnesses stated that on the date of the incident, he conducted postmortem examination on the body of deceased Vijayan and issued Ext.P15 postmortem certificate. He stated that he noted the following injuries on the body of deceased Vijayan: 1. Abrasion 1 x 0.2 cm horizontal on the right side of face 1 cm outer to angle of mouth. 2. Lacerated wound 1 x 0.5 x 0.3 cm on the inner aspect of right cheek, corresponding to the position of injury No.1. 3. Fracture of 2nd to 6th rib on the left side of chest 7 cm outer to costochondral junction, with infiltration of blood in 4th and 5th intercostal muscles. 4. Fracture 3 x 5 cm long horizontally placed on the body of sternum, 11 cm below its top." This witness also stated that injury Nos. 1 and 2 could be caused if the deceased was fisted forcefully and that injury Nos.3 and 4 could be caused CRL.A.NOS.508/06 & 682/07 8 if the person lying on the ground was kicked by some persons. PW.9 further stated that the injuries noted on the body could not have been caused by a mere fall. When this witness was questioned as to whether cardiac massage could cause rib fracture, he stated that an extensive fracture like injury No.3 cannot be caused by an external cardiac massage and that the said injury can be caused by a fall from a height with that portion of the body coming into contact with a lengthy hard object. He also stated that injury Nos. 1 to 4 could precipitate heart attack in a patient and also death. This witness opined that occlusive coronary artery disease was the cause of death and that the injuries could have either accelerated or precipitated the death. 10. In the light of the evidence of PWs.2, 3, 5 and 9, the trial court was fully justified in finding that the appellants committed offences punishable under Sections 323 and 325 read with Section 34 I.P.C. The trial court also accepted the evidence of PW.16, the Sub Inspector; of Police, Chirayinkeezhu and PW.17, the Circle Inspector of Police, Kadackavoor and found that the prosecution succeeded in proving that the appellants committed offences punishable under Section 323 and 325 read with Section 34 I.P.C. CRL.A.NOS.508/06 & 682/07 9 11. After considering the contentions of the learned counsel appearing for the appellants, this Court is of the view that the question of discarding the evidence of PWs.2, 3 and 5 does not arise at all as they have given the true picture of the incident before the trial court. With regard to the contention of the learned counsel that the prosecution failed to prove that the appellants had any intention to cause the injuries or the knowledge about the result of such injuries, it is common knowledge that any prudent man will know that kicking a person on the chest would cause serious injuries. The question of provocation also does not arise in this case as deceased Vijayan was only doing his duty. In the above circumstances, the finding of the trial court that the accused - appellants committed offences punishable under Sections 323 and 325 read with Section 34 I.P.C. is confirmed. 12. The next question is regarding the sentences awarded by the trial court. Learned counsel appearing for the appellants submits that the sentences awarded are excessive. The trial court considered this question and awarded the sentences taking into account the fact that a person has been seriously injured by the action of the appellants. However, considering the fact that the accused - appellants are youngsters and that they came to the hospital to see the wife of the second accused and also CRL.A.NOS.508/06 & 682/07 10 taking into account the fact that deceased Vijayan was a heart patient, the sentence awarded by the trial court under Section 325 read with Section 34 I.P.C. can be reduced. Accordingly, the appellants are sentenced to undergo rigorous imprisonment for two and a half years each and to pay a fine of Rs.5000/- each and in default of payment of fine, to undergo simple imprisonment for a further period of four months each under Section 325 read with Section 34 I.P.C. The sentence awarded under Section 323 read with Section 34 I.P.C. is confirmed. The sentences shall run concurrently. The appellants are also entitled to be benefit under Section 428 Cr.P.C. If the fine imposed is realised, an amount of Rs.10,000/- shall be given to the legal heirs of deceased Vijayan as compensation under Section 357(1) Cr.P.C. The Crl. Appeals are accordingly dismissed, subject to the above modification in the sentence. The bail bonds executed by the appellant in Crl. Appeal No.508 of 2006 shall stand cancelled. (K.THANKAPPAN, JUDGE) sp/ CRL.A.NOS.508/06 & 682/07 11 K.THANKAPPAN, J. CRL.A.NOS.508/2006 & 682/2007 JUDGMENT 9TH AUGUST, 2007