Akhil, Jinu Mohandas, Jyothy, Nidheesh Kumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 23RD DAY OF MAY 2017/2ND JYAISHTA, 1939 CRL.A.No. 1028 of 2014 () -------------------------- AGAINST THE ORDER/JUDGMENT IN CP 13/2013 of JUDL. MAGI. OF FIRST CLASS-III, KOTTAYAM AGAINST THE ORDER/JUDGMENT IN SC 218/2013 of ADDL. D.C. & SESSIONS COURT - IV, KOTTAYAM DATED 27-09-2014 CRIME NO. 67/2013 OF KUMARAKOM POLICE STATION , KOTTAYAM APPELLANT(S)/ACCUSED 1-4: ------------------------ 1. AKHIL,AGED 24 YEARS, S/O RAJU, KARUPPANTETHARA HOUSE, THEKKUMBHAGOM AKRA, KUMARAKOM VILLAGE 2. JINU MOHANDAS, AGED 24 YEARS, S/O MOHANDAS, CHAMACHERRY HOUSE, KUMARAKOM KARA, KUMARAKOM VILLAGE 3. JYOTHY, AGED 20 YEARS, S/O KUNJUMON, PUTHUVAL HOUSE, KIZHAKKUMBHAGOM KARA, KUMARAKOM VILLAGE 4. NIDHEESH KUMAR, AGED 25 YEARS, S/O RAJU, VITHUVETTIL HOUSE, THEKKUMBHAGOM KARA, KUMARAKOM VILLAGE ## BY ADV. SRI.NIREESH MATHEW RESPONDENT(S)/COMPLAINANT: -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031 Addl. 2. VISHNUPRAKASH S/O VELAPPAN, PUTHENPURAYIL VEEDU, CHAKRAMPADI BHAGOM, KUMARAKOM VILLAGE, KOTTAYAM DISTRICT. Addl. 3. BINEESHMON, S/O KUNJUMON, MALIYAKKELCHIRAL VEEDU, VADAKKUMBHAGOM KARA, KUMARAKOM VILLAGE, KOTTAYAM DISTRICT. RADDL.2 & 3 BY ADV. SRI.BABU JOSE R BY GOVERNMENT PLEADER M.R.DHAINL THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-032017, THE COURT ON 23/5/2017DELIVERED THE FOLLOWING: ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.Appeal .No.1028 of 2014** - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of May, 2017 ## **JUDGMENT** The accused in SC No.218/2013 of the Additional Sessions Judge-IV, Kottayam, who are aggrieved by the conviction and sentence imposed by the court below in Crime No.67/2013 of Kumarakom police station are the appellants. 2. The prosecution alleged that, due to previous enmity between the accused and PW2, on 5/2/2013 at 10.30 p.m. the accused trespassed into the courtyard of house bearing No.XIV/205 of Kumarakom Grama Panchayath and attacked PW2 and PW3. The first accused had beaten PW3 and when PWs2 & 3 intervened, they were hit by accused 2 to 4. PW2 had sustained injuries on his head. He escaped from the spot and was chased by all other accused. He was intercepted at the nearby junction wherein, he was allegedly beaten by the second accused with iron rod and the remaining accused facilitated commission of offence. He was rushed to the hospital and FIR was laid. Crime was registered and after investigation, charge sheet was laid against all the accused for offences punishable under sections 324,308,506(1),447,427 read with section 34 IPC. The court below, on an evaluation of the oral testimony of PWs 5 to 7 and Exts.P1 to P6 marshalled by the prosecution, found the accused Crl.Appeal No. 1028/2014 2 guilty, convicted and sentenced for offences punishable under sections 447,323,324 and section 506(1) read with section 34 IPC. They were acquitted for offences punishable under sections 308 and 427 IPC. Separate sentences were slapped on them for offences found against them. The accused challenges the conviction and sentence in the present appeal. 4. Heard the learned counsel for the appellants, learned Public Prosecutor and the learned counsel for the additional respondents who were impleaded as respondents Nos 2 & 3, who are the injured. 5. Learned counsel for the accused assailed the conviction and sentence on a premise that the materials marshaled by the prosecution did not substantiate the allegation. It was contended that the prosecution failed to prove the allegation beyond reasonable doubt, that wound certificate of PW3 was not produced and that the weapon allegedly used for commission of offence was also not produced. It was further contended that there were serious lapses in the investigation and the materials laid before the court below did not substantiate the prosecution allegation. 6. The prosecution essentially relied on the oral testimonies of PW2, PW3 and PW5. PW2 was the defacto complainant who was also the injured. He deposed consistently in accordance with the prosecution case. It was not demolished in the cross examination also. The prosecution has a definite case that the Crl.Appeal No. 1028/2014 3 incident happened at two different places as a chain of incident. The first phase of the incident took place at the courtyard of house No.XIV/205. PW2 and PW3, yet another injured, deposed consistently in accordance with the prosecution case. It was stated by them that the first accused had beaten PW3 using an iron rod, which was facilitated by accused 2 to 4. They caused bodily injuries on PW2 and PW3. Thereafter, PW2 escaped from the spot and he was intercepted and beaten by all the accused at the nearby junction. The overt acts of each of the accused is consistently and cogently spoken by PW2. 7. PW3, yet another injured had also given oral testimony in accordance with the prosecution case. There is no inter se contradiction between the version spoken by PWs2 and 3 and no material contradictions were also brought out in the course of cross examination. 8. PW5 is an independent witness to the second phase of the incident. According to him, while he was traveling along the main road, he saw the incident. He also corroborated the oral testimony of the injured witnesses. 9. The oral testimony of PWs2,3 & 5 get the support from the wound certificate produced as Ext.P1 dated 5/2/2013. The injured was seen by the doctor at 11.20 p.m. immediately after the incident. The court below has elaborately considered the oral testimony in the background of Ext.P1 and rejected the contention Crl.Appeal No. 1028/2014 4 of the accused that the names of the accused are not mentioned in the wound certificate. Evidently, this is not a material contradiction, since overt acts spoken by the witnesses tally with the injuries seen on the wound certificate. The non mentioning of the names of the accused in the wound certificate is not a material omission. Further, the evidence of the injured gets its corroboration from the FIR, wherein the individual overt acts are mentioned in detail. 10. The court below has discarded the contention of the appellants that the weapon used has not been recovered. Further contention of the accused that the autorickshaw in which the accused had traveled was not produced, was also not found to be a material ground for doubting the version of the eye witnesses, in the light of other clinching evidence. 11. Having considered the available materials in extenso, the court below has arrived at a conclusion that, though the prosecution was not successful in proving the charge under sections 308 and 427 IPC, all other allegations against the accused stood proved. I find no reason to take different view from that of the court below. No irregularity is committed by the court below in the appreciation of the facts and also in the application of law. I find no reason to interfere with the conclusions arrived at by the court below. 12. It was vehemently contended by the learned counsel for 5 Crl.Appeal No. 1028/2014 the appellants that, after the incident the parties have entered into an agreement by which the dispute between the parties were settled. The first appellant has filed an affidavit along with Crl.M.A.No.7392/2016 reiterating the settlement. The injured were impleaded as additional respondents 2 & 3. They have filed Annexures A and B affidavits reiterating the settlement arrived at between the parties and stated that they have no objection in recording the settlement and acquitting the accused. It was also stated that they have decided to compound the offence. 13. The allegations against the accused involved non compoundable offences. Hence, I am not inclined to permit the parties to compound the offence alleged against the accused. However, having considered the fact that there is absolutely nothing on record to show that the accused were involved in any other previous incident and that the parties have completely resolved their dispute, as reiterated by the counsel for the respondent, I feel that while moulding the sentence a lenient view is liable to be taken. This view is supported by the decision of the Hon'ble Supreme Court in **Unnikrishnan v. State of Kerala (2017(2) KLT SN 33)** , wherein the Supreme Court held that even if offence is not compoundable, the court may in view of compromise arrived at between the parties, reduce the sentence while maintaining the conviction. Having considered the fact that the accused are not involved in any other case and also the young Crl.Appeal No. 1028/2014 6 age of the accused, I feel that jail sentence, imposed on them can be avoided. Sentences involving fine will satisfy the interest of justice. Hence, I feel that while confirming the conviction, the sentence is liable to be modified in part. 14. While confirming the conviction, the sentence imposed by the court below is modified by imposing a fine of Rs.500/- payable by each of the accused for offence punishable under section 447 IPC in default of which to undergo 15 days SI , a fine of Rs.500/- for offences punishable under section323 IPC, in default of which each of the accused shall undergo SI for 15 days, a fine of Rs.6,000/payable by each of the accused for offence punishable under section 324 IPC, in default of which each of the accused is to undergo SI for one month and a fine of Rs.1,000/- for offences punishable under section 506 IPC, in default of which each of the accused is to undergo SI for 15 days. 15. The appellants shall remit the fine amount forthwith, in default of which the court below shall initiate appropriate proceedings for recovery of the fine amount. Appeal is allowed in part as above. ## **Sd/-** ## **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge **.** Crl.Appeal No. 1028/2014 7