Jagal v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID FRIDAY, THE 18TH DAY OF AUGUST 2017/27TH SRAVANA, 1939 CRL.A.No. 2015 of 2004 (A) --------------------------AGAINST THE JUDGMENT IN SC 279/2003 of ADDL.SESSIONS COURT (ADHOC) I, KOTTAYAM APPELLANT(S)/ACCUSED:: --------------------------- JAGAL, S/O. P.J. MARKOSE, PUTHENPARAMBIL VEEDU, MALLUSSERI KARA, PERUMBAIKKADU, RESIDING AT MALANKARA QUARTERA, NO.G-19, MUTTAMBALAM KARA, MUTTAMBALAM VILLAGE. BY ADVS.SRI.GEORGE BOBAN SRI.LIJI.J.VADAKEDOM RESPONDENT(S)/STATE:: --------------------- STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.UBAID, J. ~~~~~~~~~~ Crl.A No.2015 of 2004** # **~~~~~~~~~~~ Dated this the 18[th] August, 2017** ## **J U D G M E N T** The appellant herein challenges the conviction and sentence against him under Section 307 I.P.C in S.C 279/2003 of the Court of Session, Kottayam. 2. The prosecution case is that at about 8 p.m on 22.9.2002, at the telephone booth run by the wife of the de facto complainant John, the accused assaulted him and inflicted serious injuries on his body with a knife in an attempt on his life. On the basis of the First Information Statement given by the de facto complainant John, the Police registered the crime. During investigation, the weapon of offence was recovered by the Sub Inspector under Section 27 of the Evidence Act. After closing the investigation, the Sub Inspector submitted final report in court. On committal, the case came up before the Court of Session from where it was made over to the learned Additional Sessions Judge (Adhoc)I, Kottayam for trial . 3. The Police submitted final report in this case case under Sections 341, 323 and 307 I.P.C. The accused **2** appeared before the trial court and pleaded not guilty to the charge framed against him under Sections 341, 323 and 307 I.P.C. The prosecution examined eight witnesses in the trial court and proved Exts.P1 to P11 documents. The MO1 to MO3 properties were also identified. MO1 is the weapon of offence identified by the material witnesses. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and projected a defence of total denial. He did not adduce any evidence in defence. 4. On an appreciation of the evidence, the trial court found the accused not guilty under Sections 341 and 323 I.P.C and accordingly he was acquitted of those offences. However, the accused was found guilty under Section 307 I.P.C. On conviction, he was sentenced to undergo rigorous imprisonment for four years and to pay a fine of 4000/- by₹ judgment dated 30.11.2004. Aggrieved by the judgment of conviction, the accused has come up in appeal. 5. Before discussing the evidence as regards the assault made by the accused, let me examine whether the conviction in this case under Section 307 I.P.C can be **3** sustained. PW1 is the de facto complainant who sustained injuries in the incident, and PW8 is the Doctor, who proved the Ext.P11 wound certificate issued by the Doctor who actually examined and treated the injured at the hospital. PW8 is not the Doctor, who treated the patient at the hospital, and so his evidence regarding the things noted by the other Doctor cannot be given much weight. However, he proved the wound certificate containing the description of the injuries noted by the Doctor on the body of PW1. The injuries noted in Ext.P3 wound certificate are (1) an incised wound over the left chest wall just medial to the left nipple 2x0.5 cms cutting the muscles and (2) an incised wound over the left iliac crest 2x0.5 cms cutting the muscles and reaching the bone. The Doctor stated that the injury No.1 may cause death in the ordinary circumstances. Being not the Doctor who examined the injuries and noted the features of the injuries, this evidence cannot be accepted by the court without clear medical materials supporting the versions. The Doctor did not explain how the injury No.1 is fatal in nature. By nature the injuries are simple, and no **4** injury, by nature, is grievous. The wound certificate will not show that any vital organ of the injured was cut. The learned counsel cited a decision of the Hon'ble Supreme Court in **Sarju Prasad v. State of Bihar** [1965 KHC 566] where the Hon'ble supreme Court reversed the findings under Section 307 I.P.C in a case where no vital organ of the injured was cut with the weapon of offence. Anyway, in this case I find that in the absence of proper supporting materials including medical materials, the versions of PW8 who had not actually seen and examined the injuries at the hospital cannot be accepted to find a case under Section 307 I.P.C. The evidence given by the victim also does not contain the essentials of the offence. What is at the best proved is infliction of simple injury with the MO1 weapon of offence which is identified by the material witnesses. Thus, I find that what is at the best proved is the offence under Section 324 I.P.C 6. Of course there is only the evidence of PW1 to prove the incident. The other witnesses examined by the prosecution turned hostile. PW3 and PW4 are not actually **5** incident witnesses. According to PW1, when these two witnesses came at Telephone booth the accused also came there. When the accused misbehaved towards PW4, PW1 questioned this, and just then the accused left the place. After PW3 and PW4 left the place, the accused again came at the telephone booth, picked up a quarrel with the PW1, and during this, he took the MO1 knife and inflicted injuries on his body. These are the versions of PW1 in the Ext.P1 F.I Statement also. Thus, he is substantially consistent with the versions in the complaint, and in cross-examination, the defence could not bring out anything to discredit the versions of PW1. The MO1 knife was recovered by PW7 at the instance of the accused under Section 27 of the Evidence Act. The said recovery stands proved by PW7. I find no reason to reject his evidence. Just because there is no independent evidence, the evidence given by the Police Officer cannot be suspected or rejected. The weapon recovered by him was well identified by the victim. 7. PW1 has given clear evidence and it is blemishless, that the injuries were inflicted by the accused **6** in this case with MO1 knife. MO1 knife is a dangerous weapon. By nature, the injuries are simple. I find no reason to disbelieve PW1. The only eye-witness turned hostile during trial. The incident happened at the telephone booth of the wife of the complainant. Of course, it is true that his wife is not examined as a witness. If at all examined, the defence would say that she is interested. Even without such supporting evidence, I find that the evidence of PW1 is quite convincing and satisfactory, proving the offence under Section 324 I.P.C. 8. The sentence imposed by the court below is rigorous imprisonment for four years under Section 307 I.P.C. This court finds that the conviction and sentence under Section 307 I.P.C cannot be sustained and at the best, the accused is punishable only under Section 324 I.P.C. On a consideration of all the relevant circumstances including the age of the accused, the nature of the injuries and the circumstance in which the incident happened, I feel that a sentence of rigorous imprisonment for three months will be the adequate sentence in this case. **7** In the result, this appeal is allowed in part. The appellant is found not guilty of the offence under Section 307 I.P.C and accordingly the conviction and sentence against him in S.C 2769/2003 of the court below under Section 307 I.P.C will stand set aside. However, he is found guilty in appeal for the lesser offence under Section 324 I.P.C and he is convicted thereunder. The appellant is sentenced to undergo rigorous imprisonment for three months under Section 324 I.P.C. He will get the benefit of set off as already ordered by the trial court. Sd/- **P.UBAID JUDGE** ma **/** True copy/ P.S to Judge