Ganesh Kumar Kalasiyil Veedu (Ajay Nivas) v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **CRL.A.No.145 OF 2010** **AGAINST THE ORDER/JUDGMENT IN SC 31/2006 DATED 06-01-2010 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD** ## **APPELLANT/ACCUSED :-** **GANESH KUMAR KALASIYIL VEEDU (AJAY NIVAS), SREEKRISHNAPURAM, PALAKKAD DISTRICT.** ## **BY ADV. SRI.M.G.KARTHIKEYAN** ## **RESPONDENT/COMPLAINANT :-** **STATE OF KERALA C.I. OF POLICE, CHERUPLASSERY POLICE STATION, PALAKKAD DISTRICT, REPRESENTED BY THE, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **BY M.S.BREEZ -SR.P.P** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-03-2019, THE COURT ON 13-11-2019 DELIVERED THE FOLLOWING:** **CRL.A.No.145 OF 2010** **2** **ANNIE JOHN, J ====================== Crl.Appeal No. 145 of 2010 =============================== Dated this the 13[th] day of November, 2019** ## **JUDGMENT** The appellant is the accused in S.C.No.31/2006 on the file of the Additional Sessions Judge, Adhoc-III (Fast Track Court No.III), Palakkad. The prosecution case is that accused had enmity towards PW.1 Sulaiman. On 12.12.2003 at about 9.15 p.m, he went to the house No.II/310 of Sreekrishnapuram Panchayath in which PW.1 was residing with his family. His intention was to kill PW.1. He had concealed a knife under his waist. While the PW1 and the accused were talking together, by sitting at the front room of the house. Then, the accused took **CRL.A.No.145 OF 2010** **3** the knife from his waist and stabbed PW.1 on the left shoulder, left ear and on the forehead and also on the left elbow and made attempt to murder him. So the appellant has committed the offences under Sections 452 and 307 Indian Penal Code. After completing the investigation, the final report is laid before the Judicial First Class Magistrate Court, Ottappalam and subsequently it was committed to the Sessions Court for trial and disposal. 2. On the side of the prosecution PWs 1 to 10 were examined and Exhibits P1 to P14 were marked. M.Os 1 to 8 were also marked. No witnesses were examined on the side of the defence. The appellant was questioned under Section 313 Cr.P.C. 3. After hearing both sides, the Court below has found the appellant guilty for the offences under Section 452 and 324 of the Indian Penal Code and convicted there under. He is sentenced to undergo rigorous imprisonment for a period of one **CRL.A.No.145 OF 2010** **4** year and to pay a fine of Rs.5,000/- and in default of fine to undergo rigorous imprisonment for a period of two months for the offences punishable under Section 324 IPC. He is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of one month for the offence punishable under Section 452 IPC. Aggrieved by the said judgment, the conviction and sentences passed against the appellant, this appeal has been preferred. 4. According to the appellant, the lower Court has seriously erred in placing reliance on the testimony of PWs.1 and 2. The court below ought to have found that the evidence of PW.1 is not fully corroborated by any other evidence. The Court below ought to have appreciated the theory of private defence. The appellant was having some injuries on his body at the time of his arrest. **CRL.A.No.145 OF 2010** **5** These injuries were not explained by the prosecution. The non explanation of injuries on the accused is fatal to the prosecution case. On these ground urged at the time of hearing, that the appeal may be allowed by setting aside the conviction and sentence imposed by the Additional Sessions Judge, Adhoc-III (Fast Track Court-III), Palakkad in S.C.No.31/2006 by judgment dated 06.01.2010. 5. The prosecution has charged the offences under Sections 452 and 324 of Indian Penal Code and the lower Court below has to find the appellant guilty under the same offences. The PW1 is the injured in this case. According, to his case, the incident happened on 12.12.2003 at about 9.00 p.m at his own house. It is the case of the PW1 that one Vasu @ Sindhu was his friend and PW1 had acted as a mediator in the dispute relating to the property of Vasu. The accused is the brotherin-law of Vasu. The accused came to his residence **CRL.A.No.145 OF 2010** **6** stating that he had to talk about the dispute relating to the property of Vasu. While himself and the accused were sitting in front room of the house, the accused suddenly stood up and approached him and asked him whether he would send lawyer notice to his sister. Then, he took a knife from his waist and tried to stab PW1, then he bent down and he blow with the knife which struck on his left shoulder. PW.1 then pushed the appellant. He fell down. On the top of that PW.1 also fell down. Then, the appellant again stabbed him on the forehead and left hand. However, the wife and children of PW1 came there. Then, the appellant told him that he would kill him. The reason which was stated by PW1 that the appellant assaulted him because he had sent a lawyer notice to his sister regarding the dispute relating to the property of Vasu. He has narrated these facts while he was giving Ext.P1 First Information Statement to the police at the hospital. **CRL.A.No.145 OF 2010** **7** According to him. the appellant had abandoned the knife outside his residence. During examination, he has identified MO1, knife produced by the appellant. 6. PW1 also identified MO2 dhothi which he was wearing at the time of incident. According to him, the appellant had left his chappal and pen at his residence before he left place of occurrence. He also identified MOs.3 and 4 Chappal and the pen. There was a searching cross examination of PW1, to bring out omissions and contradictions. Eventhough, he was cross examined in length nothing was brought out to disbelieve the evidence of PW1. Immediately after the incident, PW1 was taken to the hospital, examined by PW9 doctor at Al-Shifa Hospital, Perinthalmanna. PW9 has issued Ext.P12 wound certificate. As per the certificate, PW1 was examined by the doctor at 10.45 p.m on 12.12.03 at the hospital. The evidence of PW9 along with Ext.P12 certificate shows that PW1 had **CRL.A.No.145 OF 2010** **8** sustained serious injuries as follows:- - (1) Cut wound over the forehead of the size 3 x 1 c.m. - (2) Incised wound on the left shoulder of the size 3 x 4 c.m. - (3) Incised wound on the left scapular region 4 x 6 c.m. - (4) Incised wound on the left upper arm of the size 2 x 0.5 c.m. - (5) Incised wound on the left temporal region of the size 3 x 0.5 c.m. 7 **.** On the strength of evidence of PW9 along with Ext.P12 wound certificate, it is proved that victim has sustained a serious injuries including the incised wounds. So the evidence of PW1 is substantiated on production of the Ext.P12 certificate. 8. PW2 is the son of PW1. He has also given evidence to the effect that the incident was occurred on 12.12.03 at about 9 p.m. According to him, the appellant came to the house to see his father and both of them were sitting together inside the drawing room of the house and talking with each other. Then, he went inside the house. While he was eating the **CRL.A.No.145 OF 2010** **9** food, he heard some sound from the drawing room. When he went there, he saw his father and the accused together lying on the floor. There was bleeding from the forehead and the left shoulder of his father. The appellant was standing there brandishing the knife towards PW1. Then due to timely intervention, the appellant had abandoned the knife outside the house and left the place. PW2 also identified MO1 knife. 9. In fact, he has supported the prosecution to the extend that he has seen that PW1 and appellant were sitting together and talking inside the drawing room. PW3 was present at the time of seizing the knife from the courtyards of the house belongs to PW1. PW6 is the A.S.I who recorded Ext.P1 statement regarding the incident given by PW1. 10. During cross examination, no omissions or contradictions were brought out from the evidence of PW1 through PW6. PW10 is the Circle Inspector, who conducted the material part of the investigation of the case. He has given evidence to the effect that he inspected the scene of the incident and prepared **CRL.A.No.145 OF 2010** **10** Ext.P2 scene mahazar. He has also found the knife lying outside the residence of PW1, that is, on the side of the road. According to him, he has seized the knife as per Ext.P2 mahazar. PW1 and Pw2 have deposed that the appellant has abandoned the knife outside the premises of the PW1. 11. Now, the learned counsel for the appellant has argued that on 12.12.2003 he was attacked by PW1 and some others at the side of a river. But no evidence was adduced by the appellant, to prove this fact. 12. Another important aspect pointed out by the learned counsel for the appellant is that at the time of arrest appellant was having some injuries and these injuries were not explained by the prosecution. In this connection, he has cited _**Asokan v. State of**_ _**Kerala [2017(2)KHC 669]**_ wherein it was held that no explanation about the injuries on accused is an important circumstance and the omission of the same assumes importance when evidence consists of interested or inimical witnesses. **CRL.A.No.145 OF 2010** **11** 13. Now at the time of arrest by PW7, the appellant had sustained some minor injuries on his body. It is important to note that the incident was occurred on 12.12.2003 but the appellant was arrested only on 15.12.2003 and the injuries were found on the body of the appellant at the time of arrest were on his left ring finger, left side of the forehead, right small finger and right palm. So three days after the alleged incident, appellant was arrested by PW7 and the appellant has not adduced any evidence to prove that his injuries were caused to the appellant by PW1 in a separate incident as alleged by him. 14. During cross examination of PW7, a suggestion was given to him that the appellant was taken into custody on 12.12.03 but this fact has been denied by the PW7. When the appellant was produced before the jurisdictional Magistrate, he had not made any complaint regarding the illegal custody from 12.12.2003 onwards. Moreover, the injuries found on the body of the appellant was only minor in nature. The said injuries could have been very well caused **CRL.A.No.145 OF 2010** **12** during the scuffle which took place at the time of the incident after PW1 fell down on the appellant or it might have caused due to any other cause. 15. It is very important to note that he has taken such a defence in the case. He has not proved it by citing any witness on either side. Now the next argument is that one of the appellant witness was examined to support the case of the PW1. In fact, the incident was occurred at the residence of PW1 itself. PW2 has seen PW1 and appellant sitting together inside the drawing room and talking together. Immediately after that he heard some sound from the drawing room, when he went there and found that the PW1 was lying on the floor with bleeding. He has also proved that appellant was present at that moment brandishing with the knife. It is true that normally the incident occurs inside the said house, the inmates of the house would be the eye witnesses. There was no chance for any outsider to see the incident. In this connection the Apex Court has held in _**State of Rajasthan v. Teja Ram [AIR 1999 sc 1776]**_ **CRL.A.No.145 OF 2010** **13** ## which reads as follows : "The over insistence on witnesses having no relation with the victims often results in criminal justice going awry. When any incident happen in a dwelling house the most natural witnesses would be the inmates of that house. It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen any thing. If the Court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question then there is justification for making adverse comments against non-examination of such person as prosecution witness. Otherwise, merely on surmises the Court should not castigate a prosecution for not examining other persons of the locality as prosecution witnesses. Prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also. 16. So from the gist of the said evidence it is to be held that the evidence adduced by PW2 cannot be discarded. Inspite the PW1 sustained very serious injuries including incised wounds and it cannot be said that the PW1 has sustained self inflicted injuries. On the basis of that lower Court has believed the evidence of PW1 and PW2 and found that it is reliable and trustworthy. Moreover, the evidence PW1 regarding the injuries sustained by him is corroborated by the evidence of the PW9 the **CRL.A.No.145 OF 2010** **14** medical expert. 17. In fact, the offence was committed under Section 307 of the Indian Penal Code. The lower Court held that the ingredients has contemplated under Section 307 of the Indian Penal Code is not attracted in this case. It is proved that the appellant came to the residence of the PW1 with a knife handing in his waist. It cannot be said that he had any intention to commit the murder on PW1 and PW1 has sustained injuries except the injury on forehead was not on the vital part of the body also. The said injury was occurred while they were scuffled together on the floor. So all the injuries sustained PW1 is found to be simple in nature. 18. The ground was sought to be inflicted by the appellant is based on dual ground. First ground is that the appellant has sustained injuries but it has not been explained by the prosecution. Secondly, no independent witnesses were cited to prove the incident. I have already held that the appellant was arrested three days after the incident and he has **CRL.A.No.145 OF 2010** **15** sustained only minor injuries on his body. Due to the gap, he might have sustained injuries by other ways or at the time of scuffle along with the PW1. Secondly, the incident was occurred inside the residence of the PW1. So there is no chance for any outsider to see the incident. 19. Under this circumstances, I find that there is no ground to disbelieve the oral testimony of PW1 and PW2. In fact, the prosecution has succeeded in proving the allegations as levelled against the appellant. The oral testimony of PW1, PW2 and PW9 along with Ext.P12 wound certificate is sufficient to prove the prosecution case. Therefore, I find that there is no ground to interfere with the judgment passed by the lower Court below, and it is only to be confirmed. As regards the attraction of Section 452 of the Indian Penal Code, it is quite clear from the evidence of PW1 and PW2, then the appellant had with a criminal intention trespassed into the residence of the PW1. Further, he has produced herein MO1, the knife which was raised by the appellant for **CRL.A.No.145 OF 2010** **16** committing the offence under Section 324 of the Indian Penal Code. 20. Under these circumstances, I do not find any ground to interfere with the order of the lower Court below. So it is only to be confirmed. As regards the sentence is concerned the appellant is sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.5,000/- for the offence punishable under Section 324 IPC and rigorous imprisonment for a period of one year and a fine of Rs.1.000/- for the offence punishable under Sections 452 IPC. In fact, the crime was registered in the year 2003 and also considering that there was some dispute pending between the appellant and the PW1 that the intention of committing the offence is that PW1 has sent a lawyer notice to the sister of the appellant and also there is some dispute regarding the property also. Considering all these facts, I find that the sentences of rigorous imprisonment granted to the appellant is excessive therefore, I am inclined to reduce it to three months each for the **CRL.A.No.145 OF 2010** **17** offences under Sections 324 and 452 IPC. The substantive sentence shall run concurrently, rest of the sentence passed by the Court below regarding the fine is to be upheld. In the result, the appeal is allowed in part and sentence granted to the appellant is hereby reduced to three months each under Sections 324 and 452 IPC (three months under Section 324 IPC and three months under Section 452 IPC). The substantive sentence of imprisonment shall run concurrently. The appellant is entitled to set off under Section 428 Cr.P.C for the period from 15.12.03 to 26.12.03 and from 21.12.09 to 22.12.09 against the substantive sentence of imprisonment imposed on him. Sd/- ## **ANNIE JOHN, JUDGE** ## **SMA**