IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 27TH MARCH, 2009 / 6TH CHAITHRA, 1931 CRL.A.No. 280 of 2009 (D) (SC.172/2008 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM) .................... APPELLANT: ------------------ DINESAN, C.NO.3400, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SRI.D.AJITHKUMAR[STATE BRIEF] RESPONDENT: -------------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED. THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 280 of 2009 --------------------------------------------- Dated this the 27th day of March, 2009 J U D G M E N T This appeal is preferred by the sole accused in S.C.No.172 of 2008 on the file of the Court of Sessions, Kottayam Division, as he is aggrieved by the order of conviction and sentence passed against him under Section 324 of the Indian Penal Code. 2. The prosecution case is that on 5.1.2008 at 2 p.m. at the place Kizhakkumcheri Thekkemuriyil on the verandah of Bhavana Hair Cutting Saloon, the accused stabbed with scissors on the abdomen of PW1 and caused hurt to him and thereby attempted to commit culpable homicide of him and thus committed the offence punishable under Section 308 of I.P.C. On the basis of the above allegation, Crime No.21 of 2008 was registered in the Vaikom Police Station for the offence under Section 308 of I.P.C. 3. After the investigation, a final report was laid before the Judicial First Class Magistrate Court, Vaikom where C.P.No.16 of 2008 was instituted and by the order dated 25.8.2008, in the above committal proceedings, the trial court committed the case to the Sessions Court from where the case is made over to the trial court for disposal. When the Crl.A. NO.280 of 2009 :-2-: accused was produced from jail, at his request for legal assistance, an Advocate was appointed from the Legal Services Authority and thus, after hearing the prosecution as well as the accused, a formal charge was framed under Section 308 of I.P.C. which was read over and explained to the accused and he pleaded not guilty. Consequently, further trial was taken place during which Pws.1 to 7 were examined and Exts.P1 to P3 were marked from the side of the prosecution. MO1 is identified and marked as material object. On questioning him under Section 313 of Cr.P.C., he denied the incriminating circumstances. According to the accused, he was implicated in a false case foisted at the instance of PW1 as he is on inimical terms with the accused connected with sale of land. According to the accused, he learned from the local people that PW1 sustained injury by falling on an iron rod on the tip of a slab. Thus, he denied the prosecution allegation. No evidence was adduced from the side of the defence. Finally, the trial court found that the accused voluntarily caused hurt to PW1 with MO1 scissors and also found that the accused had no intention or knowledge that by his act, death would have been caused to PW1. Therefore, according to the court below, the prosecution could not prove that the accused Crl.A. NO.280 of 2009 :-3-: attempted to commit culpable homicide of PW1. Thus, the trial court concluded that what the prosecution could prove against the accused is only the offence under Section 324 I.P.C. and accordingly, found that the accused is not guilty of the offence under Section 308 I.P.C., but only under Section 324 I.P.C. Consequently, after hearing the accused, he is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.5000/- and in default to undergo simple imprisonment for three months. It was also directed that if the fine is realised, it would be given as a compensation to PW1. It is the above finding and order of conviction and sentence challenged in this appeal. 4. As the appeal is preferred from the jail, Sri.D.Ajith Kumar is appointed as State Brief to prosecute the appeal for and on behalf of the appellant. Thus, I have heard Sri.Ajith Kumar, learned counsel for the appellant appearing as State Brief and also Sri.Puzhakkara Muhammed, the learned Public Prosecutor. 5. The prosecution mainly depends upon the evidence of Pws.1 and 3 and the medical evidence consists of oral deposition of PW4 and Ext.P2 wound certificate. PW1 is the Crl.A. NO.280 of 2009 :-4-: injured. Out of Pws.2 and 3 who are cited as eye witnesses, PW2 turned hostile. PW1, the injured gave Ext.P1 First Information Statement which was recorded by PW5, the Head Constable attached to Vaikkom Police Station on 7.1.2008 and registered Crime No.21 of 2008. Ext.P1 (a) is the First Information Report prepared by PW5 on the basis of Ext.P1 First Information Statement. PW4, the Civil surgeon attached to the Community Health Centre, Vaikom issued Ext.P2 wound certificate. PW7 is the then Sub Inspector of Police, Vaikom Police Station who conducted the investigation and prepared Ext.P3 scene mahazar. PW6 is the attesting witness to that mahazar. After the investigation, PW7 filed a final report. PW1, the injured , when he was examined in the court, had deposed that on 5.1.2008 at 2 p.m. the incident had taken place outside the barber shop of the accused when he went to the said shop to cut his hair. According to PW1, when he was about to return after the cutting of hair, the accused asked him to give some money as loan, but he replied negatively and the accused repeated the demand and he again repeated the same reply and requested the accused to allow him to go out. According to PW1, at that point of time, the accused went inside the barber Crl.A. NO.280 of 2009 :-5-: shop, took scissors and stabbed him in the abdomen twice. Thus, PW1 deposed that on receiving the injury, he ran away to the nearby petty shop from where he went to Vaikkom hospital in an autorickshaw and subsequently he was removed to the Kottayam Medical College Hospital. According to him, thereafter he had undergone an operation and thereafter, he was on rest for four months. Ext.P1 was proved through him and he identified MO1 as the scissors used by the accused to inflict injury on him. PW2, who was an employee of the barber shop of the accused, turned hostile stating that he did not witness the incident. PW3 deposed that he witnessed the incident. According to him, the incident happened after 1 p.m. on the veranda of the barbershop of the accused. According to him, he witnessed the incident when he looked back on hearing some sound behind. Thus, according to PW3, he saw the accused stabbing on the abdomen of PW1 with scissors. He said that the accused used MO1 scissors for inflicting the injury. PW4, the Doctor stated that on 5.1.2008 at 3 p.m., he examined PW1 and issued Ext.P2 wound certificate. According to him, he noticed the incise wound of 1 cm. long on left side of the abdomen, 5 cm. from mid line and 7 cm. from lower costal margin. The cause of injury alleged to Crl.A. NO.280 of 2009 :-6-: have spoken to by him is that on 5.1.2008 at 1 p.m. when PW1 went to cut hair in the barbershop of Arattukulangara Dinesan, there was an oral altercation and the said Dinesan stabbed on the abdomen with scissors. According to PW4, the injury would have been caused as alleged. PW4 is also of the opinion that the injury should have been caused with MO1 shown to him. PW7 deposed that he seized MO1 scissors from the barbershop of the accused as shown by PW2. Thus, on the basis of the said evidence, the trial court came to a conclusion that the accused had committed the offence under Section 324 I.P.C. though the charge was for offence under Section 308 I.P.C. 6. Learned counsel for the appellant submits that the evidence adduced by the prosecution is not sufficient to canvass the conviction against the appellant/accused. The evidence of PW1, the injured and the evidence of PW3 are consisting of full of contradictions, infirmities and discrepancies. It is pointed out that according to PW1, the incident was at 2 p.m., but according to PW3, it was after 1 p.m. It is also pointed out that in Ext.P2, the time noted as 1 p.m. Regarding the actual place of occurrence also, according to the learned counsel, there is no consistent version for the prosecution witnesses. Thus, Crl.A. NO.280 of 2009 :-7-: according to the learned counsel, there is no sufficient material and evidence in support of the finding of the trial court and therefore, the conviction and sentence ordered by the court below is liable to be set aside. 7. On the other hand, the learned Public Prosecutor submits that the prosecution case is fully established through the substantial evidence of PW1, the injured as well as another eye witness, PW3 and also the medical evidence consists of the oral testimony of PW4 and Ext.P2 wound certificate. The Public Prosecutor submits that though the charge was for the offence under Section 308 of I.P.C., the trial court, after an elaborate consideration of the entire materials and the evidence came to a conclusion that the prosecution has succeeded only in establishing the offence under Section 324 of I.P.C. and such finding is purely based upon the materials and on merit and therefore, no interference is warranted. 8. I have carefully considered the arguments advanced by both counsel for the appellant as well as the learned Public Prosecutor. As indicated earlier, the main evidence of the prosecution to establish the charge against the accused is that of PW1, the injured and PW3 and also the testimony of PW4, the Crl.A. NO.280 of 2009 :-8-: Doctor who examined PW1, the injured and Ext.P2 wound certificate. PW1 has deposed in the court in terms of the prosecution case and though he was subjected to lengthy cross- examination, nothing was brought to discredit their version. The minor discrepancy pointed out by the learned counsel with respect to the time of the alleged incident will, in no way, affect the prosecution case as such. PW3 says that the incident had taken place at 2 p.m., but according to PW1, it was after 1 p.m. The trial court has rightly rejected the plea of the accused and found that the slight variation in time, that occurred in the evidence of Pws.1 and 3, would not affect the prosecution case. It is true that PW2 who was an employee of the barber shop conducted by the accused, when examined, turned hostile. The evidence of PW1 is further corroborated by the evidence of PW4, the Doctor who examined the injured PW1. In Ext.P2, the history of the injury is stated as a result of the attack on PW1 by the accused by using MO1 scissors. PW4 is of the opinion that by using MO1 weapon, the injury noted in Ext.P1 can be caused. It is pointed out that according to Pws.1 and 3, the accused stabbed PW1 two times, but in the wound certificate only one injury is shown. In this juncture, it is also relevant to note that the Crl.A. NO.280 of 2009 :-9-: two stabs were in the same point and so only one injury could be noted by the Doctor. Going by the chief examination as well as the cross examination of PW4, it can be seen that no clarification was sought either by the defence or by the prosecution. However, in Ext.P1 wound certificate, one injury was noted by the Doctor and he had deposed that the same can be caused by using MO1 weapon. It is on the basis of the above materials and evidence, the trial court came to a conclusion that the prosecution has succeeded in establishing the offence under Section 324 of I.P.C. against the accused. Since, according to PW4, the injury noted by him is not a grave one, it was not endangered to the life of PW1 and thus, the trial court found that the prosecution failed in making out a case under Section 308 I.P.C. and therefore, the trial court found that the accused is not guilty of the offence under Section 308 and found guilty under Section 324 I.P.C. In the light of the materials referred above and the discussion, I am of the view that the finding of the trial court is absolutely correct and no interference is warranted. Consequently, the order of conviction is confirmed. 9. Regarding the sentence, learned counsel submits that a lenient view may be taken. It is pointed out that the Crl.A. NO.280 of 2009 :-10-: appellant/accused had met with an accident and practically he is a handicapped person. Considering the overall facts and circumstances involved in the case, I am of the view that certain modification can be brought with respect to the sentence. Accordingly, the sentence of imprisonment ordered by the court below is reduced and refixed as six months simple imprisonment under Section 324 of I.P.C. Since the sentence of fine is only Rs.5000/-, I am not proposed to interfere with the fine amount, but the default sentence is reduced to two months. 10. In the result, the appellant/accused is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.5000/- and in default, he is directed to undergo a further period of two months for the offence under Section 324 of I.P.C. As directed by the court below, if the fine amount is realised, the same shall be given to PW1, as compensation. 11. From the records, it appears that the accused was arrested on 22.1.2008 and released on bail on 22.2.2008. Subsequently, he was arrested on 12.8.2008 and then, he was under custody till the termination of the trial of the case. After the pronouncement of the judgment, he had undergone imprisonment from 15.11.2008 till this date (27.3.2009). As the substantive Crl.A. NO.280 of 2009 :-11-: sentence is reduced from one year to six months and the default sentence is revised and refixed as two months and the set off is allowed under Section 428 of Cr.P.C., the appellant/accused need not be further detained in jail for serving the sentence as per the impugned judgment. Therefore, he is entitled to be released from jail. Accordingly, there will be a direction to release the appellant/accused forthwith if he is not required in any other case. In the result, the appeal is disposed of confirming the conviction, but subject to the above modification with respect to the sentence. V.K.MOHANAN, Judge. Mbs/ Crl.A. NO.280 of 2009 :-12-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO. 280 OF 2009 -------------------------------------------- J U D G M E N T DATED: 27-3-2009 Crl.A. 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