IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 CRL.A.No. 1833 of 2006(C) ------------------------- SC.100/2006 of ADDL. DISTRICT & SESSIONS COURT, FAST TRACK COURT (ADHOC)-II, KOTTAYAM .................... APPELLANTS/ACCUSED:- ---------------------------- 1. SHIBIN, S/O. JACOB, VERIKKAPLACKAL VEEDU, MOONILAVU. 2. SHINOD, S/O. JACOB, VERIKKAPLACKAL VEEDU, MOONILAVU. BY ADV. MR. P.VIJAYA BHANU MR. M.REVIKRISHNAN RESPONDENT/COMPLAINANT:- ---------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MELUKAVU POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. MR. C.M. NAZER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A. NO. 1833/2006 ORDER ON CRL. M.A. NO. 9313/2006 IN CRL.A. NO. 1833/2006 DISMISSED 16.09.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ------------------------------------------------------------- Crl. A. No. 1833 of 2006 ------------------------------------------------------------ Dated this the 16th day of September, 2009. JUDGMENT The appellants who are two brothers, were charge sheeted by the Sub Inspector of Police, Melukavu Police Station for offences punishable under Sections 308 and 324 r/w Section 34 IPC. 2. The case of the prosecution can be summarised as follows:- On 20.11.2005, at about 8.45 p.m., the two accused persons out of their previous enemity towards PW1 Santhosh confronted PW1 and started an altercation with him in the course of which the 1st accused picked up MO1 stick and beat PW1 on the back of his head. When PW1 fell on the veranda, the 2nd accused came and stabbed PW1 on his abdomen and on inner part of thigh with MO2 knife. When PW1 rose up and began to run, he was stabbed on his back by A2 using MO3 knife. The 1st accused beat PW1 on his left side with MO1 stick. PW1 was then chased by the two accused persons Crl. Appeal No. 1833 of 2006 : 2 : and seeing this two persons followed them. Thereupon, the accused took to their heels. The accused have thereby committed the aforementioned offences. 3. On the appellants pleading not guilty to the charge framed against them by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 9 witnesses as P.Ws 1 to 9 and got marked 5 documents as Exts. P1 to P5 and two material objects as MOs.1 and 2. 4. After the close of the prosecution evidence, the appellants were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. 5. The learned Addl. Sessions Judge, after trial, as per judgment dated 18.09.2006 found both the appellants guilty of the offences and sentenced each of them to rigorous imprisonment for five years under Section 308 r/w Section 34 Crl. Appeal No. 1833 of 2006 : 3 : IPC and for the conviction under Section 324 r/w Section 34 IPC each of them was sentenced to pay a fine of Rs.5000/- and on default to pay the fine, to undergo rigorous imprisonment for six months each. The fine amount was directed to be paid to PW1 as compensation under Section 357(1)(a) Cr.P.C. It is the said judgment which is assailed in this appeal. 6. PWs 1, 2, 3 and 5 are the occurrence witnesses. PW4 is the doctor who issued Ext.P2 wound certificate pertaining to PW1. The injuries sustained by PW1 as revealed by Ext.P2 wound certificate are the following:- 1.Stab injury on the upper right side of abdomen 2.5 cm. long x 1 cm. wide penetrating into the abdominal cavity. 2.Stab injury on the left side of lower part of abdomen 2cm. x 1cm. 3.Stab injury on the back left side of scapular region 2cms. x ½ cm. 4.Stab injury on left upper thigh 2.5 cms. x 1.5 cms. 5.A linear contusion whole of left arm PW4 doctor has deposed before court that he conducted surgery on PW1 only to ascertain whether any of the internal Crl. Appeal No. 1833 of 2006 : 4 : organs in the abdominal cavity was damaged. He has confessed that there was no internal injury. PW4 who deposed in chief examination that injury No.1 can cause death, admitted that death could have taken place due to secondary infection which cannot be the proximate consequence of the injury. He clarified further by stating that injury No.1 is not likely to cause death and that all the injuries mentioned above could be caused during the course of a scuffle and if a sharp object came into contact with the corresponding part of the body. In the light of this evidence, it cannot be said that the prosecution had succeeded in proving that an offence punishable under Section 308 was made out. At best, what could be stated is that the accused had voluntarily caused hurt by a dangerous weapon attracting Section 324 IPC. Hence, the conviction recorded under Section 308 IPC is unsustainable and the appellants are found not guilty of the offence punishable under Section 308 IPC. Instead, the said conviction is altered into one punishable under Section 324 r/w Section 34 IPC. Crl. Appeal No. 1833 of 2006 : 5 : 7. Pending this appeal, PW1, the injured has compounded the offences with the appellants. A joint statement has been filed signed by PW1, the injured and the appellants as well as their counsel. The composition is recorded and it will have the effect of acquitting the appellants of the offence punishable under Section 324 IPC in view of Section 320 (8) Cr.P.C. The fine amount, if any, deposited before the trial court shall be refunded to the appellants. This appeal is disposed of as above. Dated this the 16th day of September, 2009. V. RAMKUMAR, JUDGE. rv