IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 CRL.A.No. 999 of 2003(A) ----------------------------------- [S.C. NO.100/2001 DTD. 20/06/2003 OF THE ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT NO.I, MANJERI, C.P.NO.50/2000 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR] ................ APPELLANT/ACCUSED: ---------------------------------- ULIKUNNUMMAL PURAYIL MOOSA ALIAS VETTAN MOOSA, S/O. ABBAS, ANANDAVOOR AMSOM DESOM, KAITHAKKARA. BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE. RESPONDENT/COMPLAINANT: -------------------------------------------- STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI. NOUSHAD THOTTATHIL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. P.S.GOPINATHAN, J. ------------------------------------ Crl.A.No.999 of 2003 ---------------------------------------------- Dated this the 29th day of November, 2011 JUDGMENT The appellant was convicted by the Additional Sessions Judge (Ad hoc-I), Manjeri in S.C.No.100/2001, for offence under Section 307 of I.P.C and sentenced to rigorous imprisonment for 5 years and a fine of Rs.5,000/- with a default sentence of simple imprisonment for one year. Assailing the above conviction and sentence, this appeal is preferred. 2. The Circle Inspector of Police, Valancheri, who was examined as PW11 Prosecuted the appellant alleging the above offence with a plea that at 11.am on 22/2/1997, while CW1 Abdul Azeez, CW2 Marakkar and PW12 Abdul Rahiman were standing along the margin of the Kaithakkara-Muthikkattu road, the appellant attempted to commit murder by hitting down them with a jeep bearing Registration No.KRM.897, driven by the appellant. Though Crl.A.No.999 of 2003 2 CW1 was hit by jeep and thrown on CW2 and as a result CW1 sustained injuries, CW2 escaped hit by running away. CW1 was rushed to the Taluk Head Quarters Hospital, Tirur where PW1 was working as an Assistant Surgeon. Ext.P1 is the wound certificate issued by PW1. Intimation was conveyed to the Station Officer, Kalpakanchery Police Station, from where PW4 Head Constable rushed to the hospital and Ext.P4 First Information Statement was recorded. PW3, the Sub Inspector of Police, on getting Ext.P4 from PW4, registered a case as Crime No.32/1997 for offence under Section 307 for which Ext.P3 First Information Report was prepared. Part of the investigation was conducted by PW10 Assistant Sub Inspector, who recorded the statement of the witnesses and prepared Ext.P6 Scene Mahazar wherein PW6 is an attester. The jeep was seized for which Ext.P7 Seizure Mahazar was prepared wherein PW7 is an attester. A plan of the scene of occurrence was got prepared through PW5 Village Officer. After completing Crl.A.No.999 of 2003 3 investigation, charge sheet was submitted by PW11 before the Judicial Magistrate of the First Class, Tirur where the case was numbered as C.P.No.50/2000. On finding that the offence alleged is exclusively triable by a Court of Session, the case was committed to the Court of Session, Mancheri. From there, it was made over to the Assistant Sessions Judge. 3. Responding to the process issued, the appellant entered appearance. After hearing either side, the Assistant Sessions Judge framed charge for the above said offence. When it was read over and explained, the appellant pleaded not guilty. Hence he was sent for trial. Before starting the examination of the witnesses, the case was withdrawn by the Sessions Judge and made over to the Additional Sessions Judge. On the side of the prosecution, PWs 1 to 12 were examined and Exts.P1 to P11 were marked. During the cross examination of PW12, Ext.D1, a portion of the C.D statement was marked. The appellant took a defence of Crl.A.No.999 of 2003 4 total denial. Though, he was called upon to enter on his defence, no defence evidence was let in. The learned Additional Sessions Judge on appraisal of the evidence, arrived at the conclusion as mentioned earlier, consequent to which, the impugned conviction and sentence were passed. 4. I have heard the learned counsel appearing for the appellant as well as the learned Government Pleader. Perused the impugned judgment and the evidence on record. 5. PW1, the Assistant Surgeon would depose that CW1 was brought to the hospital with injuries sustained in an attempt to commit murder by hitting down with a jeep bearing Registration No.KRM.897. PW1 had noted a contusion of 2 cm on the left cheek and an abrasion of 2x2 in front of the left leg. His evidence is corroborated b Ext.P1 wound certificate. 6. PW2, the Assistant Motor Vehicle Inspector, Crl.A.No.999 of 2003 5 inspected the jeep bearing No.KRM.897 and issued Ext.P2 report. He would depose that the jeep had no damage and there was no mechanical defect. This witness was examined to rule out the defence that the incident occurred because of the mechanical defect of the jeep. The evidence of PW2 that the jeep had no mechanical defect, which is corroborated by Ext.P2, remains unimpeached. 7. CWs 1 and 2 are reported abroad. Therefore, they were not examined. The only eye witness to the incident is PW12. The learned Additional Sessions Judge, while discussing the evidence had observed that PW12 is not discredited. It was further observed that the uncontroverted evidence of PW12 would substantiate the prosecution case beyond any shadow of doubt. Such being the materials on record, I had critically scrutinized the evidence of PW12 through which I was taken by the learned counsel for the appellant. PW12 would depose that between 10 and 11 am on 22/2/1997, while PW12 along with CWs 1 and 2 was Crl.A.No.999 of 2003 6 standing at the junction, they saw the appellant driving from behind. The appellant was a problem maker and was on bitter terms with PW12. CW2 jumped aside. CW1 was knocked down by the jeep. CW1 was thrown and fell on CW2. CW1 sustained injuries. The appellant stopped the jeep a little ahead touching the compound wall and then drove away. According to PW12, the appellant drove the jeep against them with the intention to commit murder. Going by Exts.P6 and P5 plan and sketch, it is seen that the road from Aloor has an elbow bent towards Muttikkadu and that CWs 1, 2 and PW12 were standing at the road margin, at the curve. The road at the place of occurrence was having a width 3.14 metre with road margin 40 cms and 155 cms on the western and eastern sides. The spot of occurrence is noted as 35 cms towards west from the western tar end. There is no suggestion to PW10, the Assistant Sub Inspector, who prepared Ext.P6 or to PW6, who attested Ext.P6, that the spot of occurrence noted in Crl.A.No.999 of 2003 7 Ext.P7 is not correct. Therefore, I find that the spot of occurrence is extreme end of the road margin. 8. Analysing the evidence of PW12 with reference to the spot of occurrence, it is evident that the attempt was to commit murder is not liable to be rejected as a false story. Now it is pertinent to note that the appellant has no case that either because of any mechanical defect or by any negligence in driving, the jeep went off the road. On the other hand, the conduct of the appellant in stopping the vehicle just rubbing the compound wall and the appellant abusing PW12 and other two witnesses would show that it was a deliberate attempt to commit murder as found by the learned Additional Sessions Judge. The evidence of PW12 would show that, even on earlier two occasions PW12 was targeted while the appellant driving another vehicle. Of course, PW12 had not made any complaint on that occasion. According to the learned counsel for the appellant, therefore, his evidence on that respect is not believable. Crl.A.No.999 of 2003 8 That argument is not relevant because now also, he had not made any complaint. 9. The learned counsel for the appellant also would argue that CW1 sustained only minor injuries. Therefore, the allegation of the prosecution that it was an attempt to commit murder is not believable. It is to be noted that the gravity of the injury is not the criteria to decide the intention of the assailant. The manner of the action and his talk thereon are relevant. The very specific case of PW12 is that the appellant drove the jeep to the road margin, where he was standing along with CWs 1 and 2, with the intention to commit murder. The appellant has no good explanation for driving the jeep to the extreme road margin. In this view of the matter, I find no reason to disbelieve PW12. It is legitimate to presume that the vehicle was driven to the extreme side of the road rubbing to the compound wall with intent to hit them down or sandwich them and commit murder. Attempt to commit murder is evident. The learned Crl.A.No.999 of 2003 9 Additional Sessions Judge elaborately discussed the evidence and had come to the conclusion of guilt. On a re-appraisal, I do not find any reason to disagree with the learned Additional Sessions Judge. I find that conviction under challenge is based upon sufficient materials and it is unassailable. 10. Though there is no mention in the appeal memorandum, the learned counsel for the appellant would argue that the charge was framed by the Assistant Sessions Judge and thereafter, the case was withdrawn by the Sessions Judge and made over to the Additional Sessions Judge. According to the learned counsel, when charge was framed the trial started and thereafter the Sessions Judge should not have withdrawn the case and made over it to the Additional Sessions Judge. However, I am not going to the merits of that contention because there is no case for the appellant that the Additional Sessions Judge, who tried the case and delivered the impugned judgment lacked inherent Crl.A.No.999 of 2003 10 jurisdiction. The appellant also had not challenged the order of the Sessions Judge withdrawing the case from the Assistant Sessions Judge and making over to the Additional Sessions Judge. Therefore, raising that contention in appeal at the time of arguments lacks bonafides. In view of Section 465 of the Code of Criminal Procedure, no finding sentence or order passed by a court of competent jurisdiction is liable to be interfered by reason of any error, omission or irregularity in the proceedings before or during trial unless failure of justice has occasioned. Here, there is no case of any failure of justice because of such withdrawal of the case from the Assistant Sessions Judge to Additional Sessions Judge. Therefore, the argument of the learned counsel for the appellant on that ground is devoid of any merit. 11. Having due regard to the facts and circumstances of the case, I find that sentence of rigorous imprisonment for five years is a little bit harsh and that a sentence of Crl.A.No.999 of 2003 11 rigorous imprisonment for three years would meet the ends of justice. In the result, this appeal is allowed in part. While confirming the conviction, the substantive sentence is reduced to rigorous imprisonment for three years. The fine imposed is sustained. Trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE su/-