Babu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945 CRL.APPEAL NO. 447 OF 2008** **AGAINST THE JUDGMENT DATED 28.09.2007 IN SC 220/2006 OF I ADDITIONAL SESSIONS COURT, ERNAKULAM** ## **APPELLANT/ACCUSED:** **BABU,** **S/O KOCHOMAL,KATHANARUPALLATHU HOUSE, VAYALKKARA, KUNUKARA VILLAGE, ERNAKULAM DISTRICT.** **BY ADVS. SRI.RAJIT SRI.RANJIT BABU** ## **RESPONDENT/COMPLAINANT/STATE:** **STATEOF KERALA** **REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.PUSHPALATH M.K., SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 18.01.2024, THE COURT ON 24.01.2024 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.447 of 2008 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.447 of 2008** **----------------------------------------------------------Dated this the 24[th] day of January, 2024** ## **JUDGMENT** This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). The sole accused in S.C.No.220 of 2006 was convicted for an offence punishable under Section 308 of the Indian Penal Code, 1860 (IPC) by the I Additional Sessions Judge, Ernakulam as per the judgment dated 28.09.2007. He was sentenced to undergo rigorous imprisonment for a period of two years. 2. The facts of the case are the following: PW1, the injured, is the wife of the appellant. There were disputes between them regarding sale of a property and a country boat and fishing net. Due to that enmity, on 01.05.2005 at about 8 'O'clock in the night while PW1 was sitting in the kitchen of her house, the appellant came there and stabbed her using MO1 knife on the left shoulder, below left nipple and left side of her chest. Serious injuries were 3 Crl.Appeal No.447 of 2008 thereby inflicted to her. The appellant did so with the knowledge that by that act death of PW1 would have happened. 3. Following the incident, PW1 was taken first to the nearby Government Hospital from where she was referred and consequently she was taken to the Medical College Hospital, Alappuzha. She was unconscious for three days. PW6, a head Constable, reached the hospital and recorded the statement of PW2, who is her sister and a bystander in the hospital. Based on that statement, Ext.P1, PW6 has registered the crime. Investigation was taken over by PW7 an Assistant Sub Inspector of Police. He prepared scene mahazar and effected recovery of MO1 on the basis of the information revealed by the appellant while in his custody. Ext.P6 is the seizure mahazar. On completing the investigation, PW7 filed the final report. 4. At the trial PWs.1 to 7 were examined and Exts.P1 to P6 were marked. During examination under Section 313(1) (b) of the Code, the appellant denied all the incriminating 4 Crl.Appeal No.447 of 2008 circumstances appeared in evidence. He stated that in terms of the compromise entered into at the instance of the Sub Inspector of Police on the previous day, he went to the house of the PW1 to take her back to his house. PW1 using a knife tried to attack him and in the scuffle both fell down. In that course, PW1 sustained injuries. Thus, the appellant maintains that he was innocent. He did not adduce any evidence. 5. The trial court, after analysing the evidence, held that the charge levelled against the appellant was proved. He was accordingly convicted and sentenced by the trial court which are under challenge in this appeal. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor. 7. The essential contentions raised by the learned counsel for the appellant are the following: - (i) PW7 was not the officer in charge of the police station and hence he was incompetent to file a final report. Therefore, the trial and conviction are illegal; - (ii) The evidence of PWs.1, 2 and 5 are mutually contradictory and therefore cannot be believed. In the absence of any independent evidence, their evidence cannot be based on to 5 Crl.Appeal No.447 of 2008 enter a conviction; - (iii) There is no medical evidence to support the case of the prosecution. Evidence of PW4 and Ext.P2 discharge certificate issued by him do not tally with the evidence tendered by the injured and occurrence witnesses concerning the injuries sustained by PW1. That falsifies the case of the prosecution; and - (iv) The evidence concerning recovery of MO1 knife is totally unreliable. 8. The submissions in regard to the aforesaid points of the learned counsel for the appellant are contradicted by the learned Public Prosecutor. In the view of the learned Public Prosecutor, although evidence regarding treatment of PW1 and her wound certificate are not available, the rest of the evidence is sufficient to prove the charge beyond reasonable doubt. PWs.2 and 5 are natural witnesses available in the house and there is no reason to discard their evidence. When direct evidence is sufficient, lack of medical evidence cannot be a reason to discard the prosecution case altogether. Regarding the competence of PW7 to file the final report and the reliability of recovery effected by him, it is submitted that the contentions of the appellant are untenable. 6 Crl.Appeal No.447 of 2008 9. The incident happened on 01.05.2005 inside the house of PW1. That fact as also that PW1 sustained injuries are not in dispute. During Section 313 examination the appellant candidly admitted those facts. It was the case of the appellant that PW1 tried to attack him using a knife and in his attempt to escape a scuffle ensued and both fell down. PW1 sustained injuries in that course. Therefore, the question is whether the version of PWs.1, 2 and 5 that the appellant voluntarily attacked PW1 using the knife can be believed or not. 10. Presence of PWs.2 and 5 in the house has been sufficiently proved. PW2 is the sister and PW5 is the daughter of PW1. All of them deposed that PW2 came to that house in the morning. Their version regarding availability of PW2 in the house cannot be disbelieved, especially when she accompanied PW1 to the hospital and on recording her statement, Ext.P1, at the hospital the crime was registered. The question, therefore, is on account of the inconsistencies and contradictions brought out in their evidence, they are liable to be disbelieved. 7 Crl.Appeal No.447 of 2008 11. The material contradictions brought out during their examination are relating through which door the appellant came inside the house, the number of stabs inflicted to PW1 and the motive. 12. When the incident is admitted, the discrepancy in the evidence of PWs.2 and 5 as to along which door the appellant came inside has no much relevance. Ext.P4 is the scene mahazar. From the description in it, it can be seen that the house is a temporary shed separated into three rooms using woven cadjan leaves. The house has two doors, one from the front western side and the other to the kitchen. The doors are just hanging plastic sheets. PW2 contradicted her statement to the police that the appellant came in through the kitchen door. PW5 stated that the appellant entered inside through the western door. The said discrepancy cannot affect their credibility since their consistent version is that they while sitting together in another room noticed the presence of the appellant in the kitchen on hearing his uttering. 8 Crl.Appeal No.447 of 2008 13. The learned counsel highlighted the version of the ocular witnesses that there were seven stabs, and termed it a subsequent embellishment making their evidence doubtful. I am unable to agree with the said submission. From the narration in the F.I.statement itself, it is evident that the appellant stabbed PW1 several times. The appellant stabbed at the back, left side of chest and over chest of PW1 several times. PW5 also deposed in similar terms. From the version of PW1 it is quite evident at which parts of her body she received the stabs and sustained injuries. It is true that in Ext.P1 or the statements during investigation, those witnesses did not state specifically the number of stabs as seven. But on a closer analysis of their evidence, that aspect cannot be considered as a contradiction for, from the very beginning, the version of the witnesses has been that the appellant stabbed several times on different parts of PW1 inflicting her injuries. 14. No medical evidence is available to corroborate the evidence of PW1. PWs.2 and 5 stated regarding the nature of injuries. PW4 is not the Doctor who examined PW1 first or 9 Crl.Appeal No.447 of 2008 treated her. PW4 had issued Ext.P2 discharge certificate. All the injuries are not recorded in it. The incident was on 01.05.2005. PW4 issued Ext.P2 certificate on 29.07.2005. That too, on the basis of the records in the hospital. Therefore, the contents of Ext.P2 do not help the prosecution to prove the details of injuries sustained by PW1. The certificate together with the oral testimony of PW4 helps only to substantiate that PW1 was treated in the Medical College hospital for the injuries she had sustained in the incident in question. It is also evident that PW1 had a serious injury at the left side of her chest which could be caused with MO1 and that the injury was fatal in nature. When the nature of the medical evidence tendered by the prosecution is of such a nature, can that be a reason to discard other evidence. 15. When the direct evidence tendered by the prosecution is reliable and sufficient to prove the allegation of infliction of injury to the victim, lack of or discrepancy in the medical evidence is not a reason to discard the case of the prosecution altogether. 10 Crl.Appeal No.447 of 2008 16. As stated, evidence of PWs.1, 2 and 5 regarding attack by the appellant on PW1 is reliable. It may be noted that PW3, a neighbour, reached the place immediately after the incident and he was told by the injured and others that the appellant attacked the injured. That evidence is concerning an act forming part of the transaction and is relevant under Section 6 of the Indian Evidence Act, 1872. So, the evidence of PW3 also renders corroboration to the oral testimony of PWs.1, 2 and 5. When their evidence is cogent and consistent as to the fact that the appellant came and voluntarily attacked PW1, I find no substance in the plea of the learned counsel to discard their evidence as unreliable. To wit, it is proved that the injuries of PW1 were inflicted by the appellant voluntarily. 17. Further, sustenance of injuries at the body parts as deposed by PW1 by a fall following a scuffle is quite remote also. The injuries were on the chest, left side of chest and shoulder. The injury on the left side of the chest was so serious as deposed by PW4. In the said circumstances, lack of 11 Crl.Appeal No.447 of 2008 evidence from the Doctor, who examined PW1 first and the wound certificate do not affect the credibility of the prosecution case. 18. PW1 is categoric about the reason for the attack. She refused to accede to the demand of the appellant to sell their common property and a country boat and net. It is her version that there have been quarrels between them for quite a long period. On the previous day, there was a mediation at the instance of the Sub Inspector of Police. It is submitted by the learned counsel for the appellant that on the basis of the understanding in the mediation, the appellant came to take PW1 back to her house and therefore there was no possibility at all for a voluntary attack. When PW1 categorically stated that despite insistence by the Sub Inspector, she was reluctant to go to the house of the appellant, the said submission of the learned counsel cannot be accepted. The motive alleged by the prosecution is thus proved. 19. PW7 deposed that he arrested the appellant on 02.05.2005 and based on his statement that he hid the knife 12 Crl.Appeal No.447 of 2008 near the house of Rajappan of Attukalparambu in Kunnukara Village, recovery of MO1 was effected. He took the appellant to that place and as pointed out by the appellant, MO1 knife was recovered. Ext.P6 is the mahazar. No witness is available to state about the seizure. But the version of PW7 does not have any infirmity. 20. The contention of the learned counsel for the appellant is that the evidence is insufficient to show that the knife was really concealed or hidden. PW7 deposed that the knife was seen placed beneath the fence in a concealed position. The public road was on the other side of the fence. From the said narration, it cannot be said that the knife was kept in an open place. When the evidence regarding recovery of MO1 is thus cogent and reliable, and PWs.1, 2 and 5 identified MO1 as the weapon of offence that fortifies the direct evidence about the occurrence. True, those witnesses did not state the features of the knife before the police. The version of PWs.2 and 5 is that they tried to grab the knife from the appellant during and immediately after the incident, 13 Crl.Appeal No.447 of 2008 but they failed. They asserted that the appellant ran away along with the knife. From that evidence, their identification of MO1 as the weapon of offence does not leave any room for doubt. Thus, it is established that the appellant inflicted injuries to PW1 using MO1. 21. Both PWs.6 and 7 admitted that a Sub Inspector was there in the Chengamanad Police Station during the relevant period. Section 173(2) of the Code says that as soon as the investigation is completed, the officer-in-charge of the police station shall forward the final report to the Magistrate. Section 2(o) defines an 'officer-in-charge of a police station’. It is an inclusive definition. Going by the definition, when the officer-incharge of the police station is absent from the Station House, the police officer present in the Station House, who is next in rank, shall discharge the duties of the officer-in-charge. 22. A Sub Inspector was the officer in charge of Chengamanad Police Station during the relevant time. But, if he was absent in the Police Station at a given time, a subordinate officer certainly could have discharged the duties 14 Crl.Appeal No.447 of 2008 of the officer-in-charge. This Court in **Vijayan v. State of Kerala [ILR 2013 (3) Ker.772]** held that the definition of officer-in-charge of a police station in Section 2(o) of the Code has an expansive meaning. The Apex Court in **Nirmal Singh** **Kahlon and others v. State of Punjab and others [(2009) 1 SCC 441]** held that the definition of officer-incharge of a police station has an expansive meaning and must receive a liberal interpretation. When PW7 conducted the investigation and submitted a final report, it cannot be said that the same is totally illegal. 23. The Apex Court in **State of Karnataka v. Yarappa Reddy [(1999) 8 SCC 715]** held that even if the investigation is illegal or even suspicious, the rest of evidence must be scrutinised independently of the impact of it. The Apex Court reminded that, otherwise, criminal trials will plummet to the level of the investigating officer ruling the roost. Viewed so, the alleged incompetence of PW7 to file a final report shall not affect the admissible evidence tendered by the prosecution before the court. 15 Crl.Appeal No.447 of 2008 24. As stated, the prosecution has succeeded in proving beyond doubt that the appellant voluntarily attacked PW1 and inflicted serious injuries using MO1, which by nature is a dangerous weapon. When PW4 stated that the injury at the left chest of PW1 could have resulted in her death, the conviction of the appellant for an offence under Section 308 of the IPC cannot be said to be wrong. Hence, I hold that there is no reason to interfere with the conviction of the appellant. The sentence imposed is rigorous imprisonment for a period of two years. Considering the nature of the offence and circumstances of the accused, the sentence imposed is quite appropriate. The appeal therefore fails. It is accordingly dismissed. The appellant is directed to surrender before the trial court within one month to undergo sentence. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr