CRL.A NO. 847 OF 2006

``` CRL.A NO. 847 OF 2006 ``` ``` 1 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945 CRL.A NO. 847 OF 2006 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 280/1999 OF ADDITIONAL SESSIONS COURT ``` # **`(ADHOC-III), THALASSERY`** ## **`APPELLANTS/ACCUSED NOS.1 & 2:`** ``` 1VADAKKECHEKKANDIYIL BABU, S/O. KELAPPAN, CHOKLI AMSOM, OLAVILAM DESOM. 2THAYPADIYIL SATHEESAN, S/O. ACHU, CHOKLI AMSOM, OLAVILAM DESOM. ``` ``` BY ADV SRI.S.RAJEEV ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.98/96 OF CHOKLI POLICE STATION.) ``` ``` SR PP SRI C N PRABHAKARAN ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 847 OF 2006 ``` ``` 2 ``` ## **`JUDGMENT`** ``` Altogether eight persons were charge sheeted by the police for the offence punishable under Sections 143, 147, 148, 341, 324, 326, 307 r/w Section 149 IPC. The case as against accused No.3, who absconded, was split up and proceeded against the remaining accused. The trial court found that accused Nos. 4 to 8 are not guilty for the charges levelled against them and acquitted as against all charges, but, found guilty for the offence punishable under Section 307 IPC against the accused No.1 and convicted thereunder and sentenced to undergo rigorous imprisonment for three years and a fine amount of Rs.10,000/- for the said offence with default sentence and accused No.2 was found guilty for the offence under Section 326 IPC and convicted thereunder and sentenced to undergo three years rigorous imprisonment and a fine amount of Rs.10,000/- for the said offence with default sentence, against which, the accused Nos. 1 and 2 came up in appeal. ``` ``` CRL.A NO. 847 OF 2006 ``` ``` 3 ``` ``` 2. The alleged incident happened on 27/05/1996 in and around 12 noon. PW3 received several injuries including an incised wound over the temporal parietal region having the measurement of 6x1 cm. The specific overt act and the origination of the abovesaid injury is alleged against accused No.1 by the user of a sword, which was not detected or let in evidence. Yet another person had also received certain injuries covered by Ext.P2 wound certificate. Ext.P1 wound certificate is drawn pertaining to PW3, the victim. PW1 is the doctor who had drawn the abovesaid wound certificates, Exts.P1 and P2. It is on the same day of alleged incident, ie., within two hours from the alleged incident, the FIS was given. FIS got marked as Ext.P4 and FIR registered based on the FIS was separately marked as Ext.P11. The difference in the time as noted in the FIR with that of the FIS, Ext.P11, may not have much relevance as it may be due to lack of due diligence and may not be a sufficient ground to eschew the evidentiary value of Ext.P4-FIS or P11-FIR, especially when it is ``` ``` CRL.A NO. 847 OF 2006 ``` ``` 4 ``` ``` received by the concerned Magistrate on the next day 12 noon. There is no inordinate delay, much less any delay in registering the FIR and receipt of the same on the next day by 12 noon by the concerned Magistrate would sufficiently indicate that it is not a case of belated FIR. As such, the decision relied on by the learned counsel for the appellant rendered by a Full Bench of this Court in Biju v. State of Kerala (2012 (4) KHC 370) will not give much assistance to their case. On the otherhand, the oral evidence tendered by PW3, the victim, stood corroborated by the oral version given by PW1, the doctor, who had drawn Exts.P1 and P2 wound certificates. There is disclosure of the name of accused Nos. 1 and 2 in the FIS as well as in the FIR, which were seen registered and given without causing any delay. The wound certificate was also drawn on the very same day, ie. within two hours, wherein also the name of assailant was disclosed and recorded by the doctor, PW1, who had drawn the wound certificate. Hence, the medical evidence and the FIS ``` ``` CRL.A NO. 847 OF 2006 ``` ``` 5 ``` ``` and FIR give sufficient corroboration to the oral testimony of PW3. As such, there is no merits in the submission made by the appellant that the two independent eyewitnesses were not examined by the prosecution. It is not in the multiplicity of the witnesses who have been examined, but the credibility and veracity of the witness examined that matters. As such, I could not find any merits in the abovesaid contention, especially when PW4, yet another witness was examined in whose house the victim took asylum after the alleged incident and disclosed what actually happened and it will come under the purview of res-gestae admissible under Section 6 of the Evidence Act., which also gives sufficient corroboration to the prosecution case. ``` ``` 3. Yet another interesting issue was also raised by the learned counsel for the appellant that there is no identification of accused Nos. 1 and 2 by the victim and no test identification parade was conducted and took reliance on the decision rendered by the Apex Court in Vijayan v. State of Kerala (1999 ``` ``` CRL.A NO. 847 OF 2006 ``` ``` 6 ``` ``` KHC 176). The question of test identification would arise when there is no prior acquaintance with the accused either by the victim or by the occurrence/eyewitness. It is a case wherein the victim has disclosed the identity of the accused Nos.1 and 2 very much at the time when he was attended by PW1, the doctor, and it has found a place in the wound certificate drawn and also found a place ``` ``` in the FIS given and in the FIR. As such, there is no scope for conducting a test identification parade. It is not necessary that the victim should say about the accused in numerous words specifying the address, the place where he belong, the name of father or mother etc.. what is required is the precise disclosure of identity. As such, the decision rendered by the Apex Court in Vijayan’s case (supra) cannot be applied in the present case in hand. ``` ``` 4. The injuries sustained and the specific overt act alleged against accused No.1 includes the injury on the temporal parietal region having the measurement of 6x1 cm. and it is an incised wound and ``` ``` CRL.A NO. 847 OF 2006 ``` ``` 7 ``` ``` doctor says that it is possible by the user of a sharp edged weapon like sword. Though the weapon was not recovered or let in evidence, it would sufficiently show the nature of injury inflicted. Since it is on a vital part of the body and the doctor also affirmed that it may be sufficient to cause death unless timely treatment is given, would sufficiently bring the matter within the sweep of Section 307 IPC. Hence, the conviction rendered by the trial court for the said offence as against accused No.1 deserves no interference. ``` ``` 5. As against accused No.2, the weapon used for commission of offence is a wooden stick and the injury inflicted is not on the vital part, but on the right arm, but with fracture and bone injury to the victim, hence it will attract the offence punishable under Section 326 IPC, deserves no interference by this court as against the conviction rendered against the accused No.2 for the offence punishable under Section 326 IPC. ``` `6. The sentence awarded should reflect a proper` ``` CRL.A NO. 847 OF 2006 ``` ``` 8 ``` ``` balance between the mitigating and aggravating circumstances. There is only a single blow on the vital part of the victim, that is, over the head by the user of a sharp edged weapon like sword. But nature of injury though mentioned is an incised wound having only a measurement of 6x1 cm without showing its depth, no bony injury is reported to the scull or any of the bone in the scull including temporo parietal bone. Being a first time offender, it is fit and proper to substitute the substantive sentence against accused No.1 for the period already undergone at the pre-trial stage, which comes to 45 days and a fine amount of Rs.25,000/- with a default sentence of three months simple imprisonment. Hence, ordered accordingly. The very same treatment can also be extended to accused No.2 who had inflicted only a fracture to the right arm by the user of wooden stick. Necessarily, the pre-trial detention can be adjusted by way of substantive sentence, for the offence under Section 326 IPC. But the sentence of fine would stand enhanced to Rs.25,000/- with a ``` ``` CRL.A NO. 847 OF 2006 ``` ``` 9 ``` ``` default sentence of three months. The accused No.2 passed away. Hence, the amount shall be recovered from the asset left out by the deceased, accused No.2. On recovery of the fine amount, an amount of Rs. 40,000/- shall be released to the victim, PW3, under Section 357 Cr.P.C. and the rest of amount shall be adjusted towards the cost incurred by the State Government in prosecuting the appeal. ``` ``` The appeal will stand allowed in part accordingly. ``` ``` Sd/- P.SOMARAJAN ``` ``` JUDGE ``` msp