IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 25TH MARCH, 2010 / 4TH CHAITHRA, 1932 CRL.A.No. 1001 of 2009(A) ----------------------------- (SC.392/2008 of the Court of Ivth Additional Sessions Judge (ADHOC-II), Thodupuzha) .................... APPELLANT(S): ----------------- MADHAVAN,C.NO.3831,CENTRAL PRISON, TRIVANDRUM. BY ADV. RAFEEKH.K(STATE BRIEF) RESPONDENT(S): ------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 1001 of 2009 A --------------------------------------------- Dated this the 25th day of March, 2010 J U D G M E N T Challenging the conviction and sentence imposed against the appellant vide judgment dated 20.3.2009 in S.C.No.392 of 2008 of the Court of IVth Additional Sessions Judge (ADHOC-II), Thodupuzha, the appellant/accused preferred this appeal. By the impugned judgment, the accused is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- and in default of payment of fine, he is directed to undergo simple imprisonment for a further period of three months under Section 308 of I.P.C. 2. The prosecution case is that on 22.4.2008 at 8 p.m. at the road margin of Pathumuri-Kanjiram Kavala Panchayat road and on the northern side of the building belonging to one Madhavan Poonthedathuparambil bearing No.KP.3/333, the accused due to enmity against Crl.A.NO. 1001 of 2009 :-2-: PW1, with the intention to commit culpable homicide hit him with an iron road on the abdomen above the navel pit causing injury to PW1 and when the accused tried again to hit PW1 with the same iron rod, PW1 tried to block that hit and in that attempt, the iron rod hit on his left hand causing injury to PW1 and if PW1 had not blocked the hit, the hit would have caused his death. On the basis of the above allegation, Crime No.141 of 2008 was registered in the Kumili Police Station and after investigation, a report was laid in the court of the Judicial First Class Magistrate-II, Peerumade wherein C.P.No.21 of 2008 was instituted and subsequently, the learned Magistrate committed the case as per his order dated 25.7.2008 in C.P.No.21 of 2008, thereupon, the present case was instituted in the Sessions Court, Thodupuzha from where it was made over to the trial court for disposal. 3. The appellant/accused was arrested on 24.4.2008 from which date onwards he is under custody. On Crl.A.NO. 1001 of 2009 :-3-: producing the accused before the trial court, after hearing the prosecution as well as the accused, a formal charge was framed against the accused under Section 308 I.P.C. which was read over and explained to him and he denied the charge and pleaded not guilty. Thereafter, the prosecution adduced evidence consisting of the oral testimonies of Pws.1 to 10 and the documentary evidence, Exts.P1 to P8. MO1 material object was also produced and identified. Neither oral nor documentary evidence was adduced by the defence. During the examination of the accused under Section 313 of Cr.P.C., the evidence and incriminating circumstances that emerged during the prosecution evidence were put to the accused and he denied the same and took a stand of total denial. It is, on the basis of the above materials and evidence, the trial court found the accused guilty under Section 308 of I.P.C. and imposed the above sentence. 4. The appellant/accused, who is undergoing the imprisonment pursuant to the judgment of the trial court Crl.A.NO. 1001 of 2009 :-4-: preferred a jail appeal upon which Mr.K.Rafeekh, appointed as State Brief to prosecute the appeal on behalf of the appellant. From the records and the endorsements contained in the file, though it appears that the copies of the records were served on the State Brief much before 19.11.2009, the learned counsel is not in a position to argue the matter effectively and therefore, this Court is constrained to depend upon the Prosecutor to analyse the evidence and the circumstances involved in the case. The responsibility and the duties of this Court persuaded further especially, in the light of the fact that during the trial also, the accused was defended by not a lawyer of his choice, but an Advocate appointed as State Brief, and hence, I have gone through the materials and evidence on record very carefully and meticulously. 5. In the appeal memorandum from the jail, the appellant has taken several grounds out of which the main contention raised is to the effect that except the interested Crl.A.NO. 1001 of 2009 :-5-: the versions of PW1, there is no independent witness to substantiate the prosecution allegation. It is stated that the two witnesses cited by the prosecution viz., Pws.2 and 4, are the neighbours of PW1 and they are highly interested in convicting the accused and helping the injured PW1. It is also the contention of the appellant that MO1 material object was not recovered from the possession of the accused, but the same was seized as produced by PW4. Thus, according to the appellant, the prosecution has not succeeded in establishing the case against the accused and therefore, he is entitled to a clear acquittal. 6. On the other hand, the learned Public Prosecutor submitted that the evidence of Pws.1,2 and 4 are sufficient to establish the incident whereby PW1 sustained injury. The medical evidence consists of the deposition of PW3 and PW9 supported by Ext.P2 wound certificate and Ext.P5 discharge certificate are sufficient to corroborate the evidence of prosecution witnesses with respect to the incident. Crl.A.NO. 1001 of 2009 :-6-: Therefore, according to the learned Public Prosecutor, no interference is warranted. 7. I have carefully considered the rival pleadings and arguments and also the evidence and materials on record. I have repeatedly gone through the impugned judgment of the trial court. 8. According to the prosecution, the appellant as well as the de facto complainant are not so strangers and the accused was known to PW1 right from his childhood. The specific case of the prosecution is that the accused and his companions hired the autorickshaw driven by PW1 after taking liquor and also for the purpose of taking liquor further and thereafter, returned to the house of the accused after dropping the other friends of the accused. When the autorickshaw reached in front of the house of the accused, he alighted from there without paying the hire charge and when PW1 injured, who is the driver of the autorickshaw, demanded for the hire charge, it infuriated the accused and Crl.A.NO. 1001 of 2009 :-7-: he inflicted injuries on the body of PW1 by using MO1 weapon. According to PW1, the accused tried to inflict injuries on PW1 on three times and when he cried out, PW2, who was residing adjacent, came to the spot and at his request, PW4 also came to the spot and they took the injured to the hospital. It was PW4, who has forcibly taken MO1 from the hands of the accused. Thus, PW3, the Doctor before whom the injured was taken, after giving the first aid referred the injured to the Medical College Hospital, Kottayam. PW3 issued Ext.P2 wound certificate. Thus, thereafter, the injured was taken to the Medical College Hospital, Kottayam where he had undergone major operation and through the evidence of PW9, the Doctor attached to the M.C.Hospital and Ext.P5 discharge certificate, the prosecution has established serious injuries sustained by PW1 at the hands of the accused. PW5 is an attestor to Ext.P3 scene mahazar prepared by PW10. PW6 is the attester to Ext.P4 seizure mahazar, which was Crl.A.NO. 1001 of 2009 :-8-: prepared by PW8 the Sub Inspector of Police, for the seizure of MO1 weapon which was recovered, as produced by PW4. It is PW10 the Station House Officer, who prepared Ext.P6 FIR on the basis of Ext.P1 F.I.statement of PW1 as recorded by PW7. Ext.P7 arrest memo and Ext.P8 property list are proved through PW10. 9. It is true that Pws.2 and 4 did not witness the entire incident. PW1, the injured, who is the de facto complainant, received the injury at the hands of the accused, when he demanded the hire charge for the autorickshaw, has categorically stated the entire incident. The defence has no dispute that PW1 knows the accused from his childhood itself. Regarding the identity of the accused, there is no dispute. Going by the evidence of PW1, as rightly observed by the trial court, I too find no contradiction or infirmities. Immediately, after the incident, PW1 was taken to PW3 who gave him the first aid and issued Ext.P2 wound certificate wherein it is recorded the cause of the assault as stated by Crl.A.NO. 1001 of 2009 :-9-: PW1. So, even in the absence of any other evidence, there is no illegality in convicting the accused solely based upon the evidence of the injured PW1 especially when the defence miserably failed to establish any case of enmity between PW1 and the accused. 10. It is also relevant to note that on hearing the cry of PW1, PW2 neighbour of the accused came to the spot firstly and he saw the accused with MO1 weapon. According to PW2, he reached the spot on hearing the cry of a person 'എന കതയ '. According to PW2, when he reached the spot, he saw the accused and PW1 in a fallen down position and the accused was holding MO1 material object. As indicated earlier, as called by PW2, PW4 also rushed to the scene of occurrence and he had also seen the accused holding MO1 with full of blood. It is also relevant to note that PW2 is the neighbour of the accused also. It is, PW4, who has forcibly taken MO1 from the hands of the accused. Pws.1,2 and 4 correctly identified MO1 weapon used by the Crl.A.NO. 1001 of 2009 :-10-: accused. The above evidence of Pws.2 and 4 renders assurance of the version given by PW1 injured. Nothing brought on record though Pws.1,2 and 4 were subjected to lengthy cross-examination to discredit their version. So regarding the incident, the evidence of Pws.1,2 and 4 remain as cogent and acceptable. 11. As stated earlier, PW1 gave the cause of assault to PW3 which will find a place in the wound certificate. When PW3 was examined, he had given the evidence in terms of Ext.P2 wound certificate. PW9, the Doctor attached to the Medical College Hospital gave the evidence and the prosecution proved Ext.P5 discharge certificate with respect to PW1. According to PW9, the injury sustained by PW1 on the kidney and lever were fatal in nature. He had also deposed that if early expert medical treatment had not been given, death might have been resulted. Therefore, the finding of the court below that the accused inflicted fatal stab injury on PW1 by using MO1 and if early expert Crl.A.NO. 1001 of 2009 :-11-: medical treatment is not given to PW1, it might have caused his death, is absolutely correct. It is also borne out from the records, especially as per the evidence of the injured that after inflicting the first vital injury, the accused tried twice to inflict further injuries which was prevented by PW1. In the light of the above facts and circumstances and the evidence and materials referred above, I am of the view that the prosecution has succeeded in establishing the case against the appellant/accused and therefore, no interference is called for with respect to the finding and the conviction arrived on by the court below. 12. With respect to the sentence, counsel appearing for the appellant has submitted that a lenient view may be taken. According to the trial court, when the accused was heard about the question of sentence, he has no repentance even at the time of trial. So the trial court Judge observed that the attitude and approach and demeanour of the accused and the very nature of the crime committed by him Crl.A.NO. 1001 of 2009 :-12-: show that he is a hardened criminal and he deserves no leniency. Going by the prosecution case, it can be seen that the incident has taken place when PW1 demanded for hire charge of autorickshaw. Even according to the prosecution case, the accused hired the autorickshaw for taking liquor. No other enmity is proved by the prosecution against the accused. It is to be noted that even at the time of trial, the accused was at the age of 58. Considering the entire facts and circumstances involved in the case, I am of the view that some modification can be effected with respect to the sentence and according to me, the imprisonment awarded against the accused by the trial court can be reduced from five years to 3½ years and the sentence of fine imposed by the trial court can be maintained. Thus, the sentence of imprisonment imposed against the appellant is reduced and refixed as 3½ years and the sentence of fine awarded by the trial court is confirmed and the appellant/accused is entitled to the benefit of set off under Section 428 of the Cr.P.C. Crl.A.NO. 1001 of 2009 :-13-: In the result, this appeal is dismissed, but subject to the above modification with respect to the sentence. V.K.Mohanan, Judge MBS/ Crl.A.NO. 1001 of 2009 :-14-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T DATED: -2-2010 Crl.A.NO. 1001 of 2009 :-15-: