Crl.Appeal Nos.114 and 472 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946** **CRL.A NO. 114 OF 2006** **AGAINST THE JUDGMENT DATED 15.12.2005 IN SC NO.199 OF 2005 OF THE** **COURT OF SESSION, KOTTAYAM** **APPELLANT/SECOND ACCUSED:** **JIJI, S/O MATHAI, PATTATHANAM HOUSE MANNANAM KARA, ATHIRAMPUZHA VILLAGE.** **BY ADVS. K.S.PRENJITH KUMAR BEA MARY BENNY** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.VIPIN NARAYAN, SR. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON** **11.7.2024, THE COURT ON 17.07.2024, ALONG WITH CRL.A.472/2006, DELIVERED THE FOLLOWING:** 2 ## **Crl.Appeal Nos.114 and 472 of 2006** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 CRL.A NO. 472 OF 2006** **AGAINST THE JUDGMENT DATED 15.12.2005 IN SC NO.199 OF 2005** **OF THE COURT OF SESSION, KOTTAYAM** **APPELLANT/1ST ACCUSED :** **ANTONY @ SIBY, S/O JOSEPH, KARIYIL HOUSE, MANNANAM KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT.** **BY ADVS. MARTIN D.ALUMKARA MOHAN IDICULLA ABRAHAM PUSHPY B.MURICKEN RACHEL P.MATHEW E.S.SIMON** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING** **ON 11/7/2024, THE COURT ON 17.07.2024, ALONG WITH CRL.A.114/2006, DELIVERED THE FOLLOWING:** 3 ## **Crl.Appeal Nos.114 and 472 of 2006** ## **C.S.SUDHA, J.** **---------------------------------Crl.Appeal Nos.114 and 472 of 2006 ------------------------------------------------Dated this the 17th day of July 2024** ## **J U D G M E N T** These appeals under Section 374(2) Cr.P.C. by accused Nos.1 and 2 in S.C.No.199/2005 on the file of the Court of Session, Kottayam, have been filed challenging the conviction entered and sentence passed against them for the offences punishable under Sections 323, 324, 308 read with Section 34 IPC. Crl.Appeal No.114/2006 has been filed by the 2nd accused and Crl.Appeal No.472/2006, by the 1st accused. I shall refer to the appellants as A1 and A2. 2. The prosecution case as stated in the charge sheet/final report is that the first accused (A1) due to his enmity towards PW1 and with the intention of assaulting him, on 19/06/2004 at about 4 ## **Crl.Appeal Nos.114 and 472 of 2006** 07:00 p.m. in front of hotel Surya situated at Mannanam kara, voluntarily caused hurt, by fisting the latter on his face and chest as well as beating him with a fire wood on his back and belly. The second accused (A2) with a soda bottle tried to beat PW1 on his head and cause his death. The blow was warded off by PW1 resulting in the bottle hitting his right middle finger causing an injury. Seeing the incident when PW2 tried to intervene, A1 with a fire wood beat him on his head causing an injury. The attack also resulted in causing contusion on his lower-lip (ക�ഴ� ച��ട�യ�ൽ), left cheek and on both arms. Hence, the accused are alleged to have committed the offences punishable under Sections 323, 324 and 308 read with Section 34 IPC. 3. On the final report being submitted, the jurisdictional magistrate after complying with the statutory formalities, committed the case against the accused to the Sessions Court concerned, which court took the case on file as S.C.No.199/2005. On appearance of the accused before the Court of Session, they 5 ## **Crl.Appeal Nos.114 and 472 of 2006** were furnished with the copies of all the prosecution records. On 14/11/2005, the trial court framed a charge for the offences punishable under Sections 323, 324 and 308 read with Section 34 IPC, which was read over and explained to the accused, to which they pleaded not guilty. 4. The prosecution examined PWs.1 to 7 and got marked Exts.P1 to P11 and MO.1 and MO.2. Ext.D1 was marked on the side of the accused. After the close of the prosecution evidence, the accused were questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence of the prosecution. The accused denied all those circumstances and maintained their innocence. 5. As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., they were asked to enter on their defence and adduce evidence in support thereof. No oral evidence was adduced by the accused. 6. On a consideration of the oral and documentary 6 ## **Crl.Appeal Nos.114 and 472 of 2006** evidence and after hearing both sides, the trial court by the impugned judgment found A1 and A2 guilty under Section 235(2) Cr.P.C. of the offences punishable under Sections 323 and 324 read with Section 34 IPC and hence convicted and sentenced them to undergo rigorous imprisonment for 6 months each and to a fine of ₹500/- each and in default of payment of fine to undergo rigorous imprisonment for a period of one month under Section 323 IPC and one year rigorous imprisonment each and a fine of ₹1,000/- each and in default, to rigorous imprisonment for three months for the offence under Section 324 IPC. A2 has been acquitted under Section 235(1) for the offence punishable under Section 308 IPC. However, A1 has been found guilty for the offence punishable under Section 308 IPC also and hence convicted and sentenced to rigorous imprisonment for four years and to a fine of ₹1,500/- and in default to rigorous imprisonment for six months. Out of the fine amou nt, an amount of ₹2,000/- each has been directed to be paid to PW1 and PW2. Aggrieved, both the accused filed the aforesaid 7 ## **Crl.Appeal Nos.114 and 472 of 2006** appeals. 7. The only point that arises for consideration in these appeal is whether the conviction entered and sentence passed against the accused by the trial court is sustainable or not. 8. Heard Adv.K.S.Prenjith Kumar, the learned counsel appearing for the appellant in Crl.Appeal No.114/2006 and Adv.Vipin Narayan, the learned Senior Public Prosecutor for the respondent. 9. A1 was reported to be no more. Death certificate has also been produced. Section 394 Cr.P.C. deals with abatement of appeals. Sub-section (1) of Section 394 provides that every appeal under Section 377 or 378 shall finally abate on the death of the accused. Section 394(2) states that every other appeal under Chapter XXIX (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. The proviso to Section 394 states that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during 8 ## **Crl.Appeal Nos.114 and 472 of 2006** the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the appellate court for leave to continue the appeal; and if leave is granted, the appeal shall not abate. The present appeal is from a composite order of sentence combining substantive imprisonment with fine. By virtue of sub-section (2) to Section 394 Cr.P.C., the appeal on the death of A1, that is, the appellant in Crl.Appeal No.472/2006, stands abated so far as the sentence of imprisonment is concerned. However, the aforesaid provision also makes it clear that all appeals under Chapter XXIX except an appeal from a sentence of fine shall not abate on the death of the appellant. Thus Crl.Appeal No.472/2006, an appeal against fine, cannot be treated as abated. (See **Ramesan** **v. State of Kerala, (2020) 3 SCC 45** and **E. Muhammed @ Kunhalan v. Sub Inspector of Police, 2022 KHC 5587** ). 9.1. None of the near relatives of the A1 has sought permission to prosecute Crl.Appeal No.422/2006. In the light of the dictums in **Bani Singh v. State of U.P., AIR 1996 SC 2439** and 9 ## **Crl.Appeal Nos.114 and 472 of 2006** **Ramesan** _(Supra)_ , I proceed to consider Crl.Appeal No.472/2006, an appeal against the sentence of fine, on merits after going through the records in the case. 10. It was argued by the learned counsel for A2 that several material inconsistencies have come up in the testimony of PW1 and PW3, the injured witnesses. There is discrepancy regarding the scene of occurrence. Apart from PW1 and PW3, there is no independent witness to support the prosecution case. PW4 and PW5 alleged to be the occurrence witnesses turned hostile and deposed that they had not witnessed the incident and that they had only heard about the incident. It was also pointed out that though the MO.s were alleged to have been seized from scene in the year 2006, the same were produced before the court only in the year 2009. No explanation whatsoever has been given by the prosecution to explain this long delay in producing the material objects before the court. Pointing to these aspects, it was submitted by the learned counsel for A2 that the accused is entitled to the 10 ## **Crl.Appeal Nos.114 and 472 of 2006** benefit of doubt. 11. On going through the testimony of PW1 and PW3, it is true that there are certain inconsistencies in their version. It is also true that there are no independent witnesses to support the prosecution case and PW4 and PW5, the occurrence witnesses have turned hostile and deposed against the prosecution case. Merely because the occurrence witnesses have turned hostile and there are no independent witnesses to support the prosecution case, is no reason to throw out or disbelieve the entire prosecution case, especially when the accused have no case that the injured witnesses were deliberately speaking falsehood due to prior enimity or some such extraneous considerations. No reasons have been brought out to show that the accused have been falsely implicated in this case. The inconsistencies pointed out by the learned counsel on behalf of the second accused have not gone to the root of the prosecution case. I do not find any perversity as such in the findings of the trial court calling for an interference by this Court. 11 ## **Crl.Appeal Nos.114 and 472 of 2006** 12. A2 has been found guilty of the offences punishable under Sections 323 and 324 read with Section 34 IPC for assaulting PW1. There is a specific finding in the impugned judgment that A2 had not assaulted or injured PW3. A1 was convicted for the offences punishable for the offences punishable under Section 323, 324 and 308 read with Section 34 IPC. However, A2 has been acquitted for the offence under Section 308 and convicted only for the offences punishable under Sections 323 and 324 read with Section 34 IPC for having voluntarily caused hurt to PW1 in furtherance of his common intention with A1. The injuries sustained by PW1 as a result of the assault by A2 as stated in Ext.P2 wound certificate are following - _“(1) Lacerated injury tip of ® middle finger 1x0.5 cm._ _(2) Contusion ® thigh laterally 4 in no. placed horizontally 2 cm x 6 cms each._ _(3) Ugly laceration ® upper lateral thigh 4x2 cms._ _(4) Contusion (L) thigh laterally 2 in no. horizontally placed 2x6 cms._ _(5) Multiple minor abrasion over face and both hands.”_ 12 ## **Crl.Appeal Nos.114 and 472 of 2006** In the impugned judgment it is stated that A2 was 31 years at the time of commission of the offence. 20 years have elapsed since the date of occurrence. A2 does not have any criminal antecedents. In the light of the injuries sustained by PW1, the sentence imposed by the trial court appears to be slightly harsh and therefore the same is liable to be modified and I do so. In the result, Crl.Appeal No.472/2006 filed by A1 is dismissed. The sentence of fine imposed against A1 shall stand confirmed. Crl.Appeal No.114/2006 filed by A2 is partly allowed and the conviction and sentence passed by the trial court is modified thus - For the offence punishable under Section 323 IPC, A2 is convicted and sentenced to imprisonment for a day till the rising of the court and to a fine of ₹3,000/- and in default of payment of fine to undergo simple imprisonment for two months. He is also convicted and sentenced to undergo 13 ## **Crl.Appeal Nos.114 and 472 of 2006** simple imprisonment for a day till the rising of the court for the offence under Section 324 IPC and to a fine of ₹4,000/and in default of payment of fine to simple imprisonment for four months. From the fine amount if realised, an amount of ₹6,000/- shall be given to PW1 as compensation under Section 357(3) Cr.P.C. A2 shall appear before the trial court for undergoing the sentence on **17/08/2024** . The sentence regarding imprisonment shall run concurrently. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** ami/