Jayaprakash @ Pala Prakashan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 1[ST] DAY OF SEPTEMBER 2022 / 10 TH BHADRA,** ## **1944** **CRL.A NO. 2456 OF 2007** **AGAINST THE JUDGMENT IN S.C. 223/2007 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-I), KOTTAYAM APPELLANT/ACCUSED:** JAYAPRAKASH @ PALA PRAKASHAN, S/O.GOPALAN NAIR, KUTTIYANICKAL VEEDU,, KOOROPADA VILLAGE, LAKKATTOR KARA. BY ADV. SRI.SURIN GEORGE IPE ## **RESPONDENT/CLAIMANANT:** STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV, SRI.DENNY DEVASSY, SR.GP THIS CRIMINAL APPEAL HAVING FINALLY HEARD ON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.Appeal.No.2456 of 2007** 2 ## **JUDGMENT** Conviction and sentence imposed against the appellant in S.C.No.223/2007 on the file of Additional District and Sessions Judge, Kottayam is under challenge in this appeal. 2. The respondent herein is the State of Kerala represented by the learned Public Prosecutor. 3. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. 4. The prosecution case in short, is as under: On 04.04.2003 at about 8 p.m. at the public road in Puthukulam near to the shop building owned by Kottamangalam Vinayachandran the accused voluntarily caused grievous hurt to one Sanal Kumar by cutting with a sword with such intention and under such circumstances that if 3 ## **Crl.Appeal.No.2456 of 2007** by that act he had caused the death of the above Sanal Kumar, he would have been guilty of murder and thereby committed the offence punishable under Sections 326 and 307 of I.P.C. 5. On the basis of FIS given by the defacto complainant, Pampady police registered Crime No.86/2003 and investigated the crime. Later on Final Report was filed before the Jurisdictional Magistrate and the case was then committed before the Sessions Court for trial and disposal. Later, the Additional District Judge, Kottayam tried the matter after complying pretrial formalities. During trial, PWs.1 to 14 examined and Exts.P1 to P20 marked on the side of the prosecution. During cross-examination of PW2, Exts.D1, D1(a) and D1(b) documents got marked. 6. Thereafter, the accused was questioned under Section 313(1)(b) of Cr.P.C. and his explanation to the incriminating circumstances 4 ## **Crl.Appeal.No.2456 of 2007** found in the evidence was recorded. But no defence evidence adduced apart from Ext.D3 document marked during the evidence of the prosecution. 7. Thereafter, on appreciation of evidence, the learned Sessions Judge found that the accused herein, committed offences under Section 326 and 307 of IPC. Accordingly, he was sentenced to undergo _1) Rigorous Imprisonment_ _for 3 (three) years with a fine of Rs.5,000/(Rupees five thousand only) in default, to_ _undergo Rigorous Imprisonment for 6 (six) months under Section 326 of I.P.C. 2) Rigorous_ _Imprisonment for 4 (four) years with a fine of_ _Rs.10,000/- (Rupees ten thousand only) in_ _default of payment of fine, to undergo Rigorous_ _Imprisonment for 1 (one) year under Section 307_ _of I.P.C. 3.) If fine amount is collected, pay_ _Rs.10,000/- (Rupees ten thousand only) to PW2 as_ _compensation for rectifying his grievance, if_ ## **Crl.Appeal.No.2456 of 2007** 5 _any, under Section 357(1) of Cr.P.C._ 8. While impeaching veracity of the verdict of the court below, the learned counsel for the appellant pointed out that the learned Sessions Judge went wrong in finding commission of offences under Section 326 and 307 of IPC. It is argued that as per Ext.P8, wound certificate prepared initially at Medical College Hospital, Kottayam at 9:00 p.m, no fracture noted. Subsequently, when the injured was taken to Matha Hospital, Thellakom, Kottayam, it was found that the injured sustained fracture left radius. Since the time gap between the 1[st] examination and the 2[nd] examination is 1:30 hrs, the fracture diagnosed as per Ext.P11 prepared at Matha Hospital, cannot be the basis to find that there was fracture to justify conviction under Section 326 of IPC. Thus the finding of the Sessions Court that the appellant committed offence punishable under Section 307 of IPC also ## **Crl.Appeal.No.2456 of 2007** ## 6 is no justifiable. 9. Whereas, the learned Public Prosecutor submitted that though no fracture stated in Ext.P8, the wound certificate prepared at Medical College Hospital, Kottayam, when the injured was examined by the doctor at Matha Hospital, Thellakam, multiple injuries along with fracture of left radius was diagnosed and treatment thereof was given. The learned Public Prosecutor given emphasis to Ext.P10 treatment records in the format of book to substantiate this contention, supported by the evidence given by PW10. **==> picture [388 x 13] intentionally omitted <==** certificate prepared at the first instance, the following injuries are noted: _1. 6x3x1 cm incised wound anterior lateral aspect of left arm._ _2. 15x10x4 cm incised wound anterior aspect of left arm._ _3. 6x4x2 cm incised wound anterior aspect of left arm._ _4. 10x5x2 cm incised wound left aspect_ 7 ## **Crl.Appeal.No.2456 of 2007** _right leg._ 11. PW9, Dr.Tigy Thomas was examined to prove Ext.P8. During his examination, he fully supported Ext.P8. It is true that during examination of PW9, nothing extracted to establish fracture as noted in Ext.P11. In order to prove Exts.P11 and P10, the wound certificate as well as the treatment records issued from Matha Hospital, Thellakom, PW10, Dr.S.Jayachandran got examined. He also deposed in detail regarding the injuries including fracture and the treatment given to PW2/the injured. Ext.P10 would go to show that the injured when admitted on the date of occurrence on 04.04.2003 at 10:30 p.m. at Matha Hospital, PW10 noted the following injuries in Ext.P10: - _(1) Incised wound on lateral aspect of right leg._ - _(2) Bone deep incised wound left forearm, midline 3[rd] fracture radius and multiple tendon injury._ - _(3) Incised wound on left cubical fossa cutting bronchial artery and medial_ 8 ## **Crl.Appeal.No.2456 of 2007** _nerve._ _(4) Incised wound on left shoulder._ 12. The injured was treated at Matha Hospital from 04.04.2003 to 09.04.2003 and the treatment was confined to ORIF (open reduction and internal fixation) on radius along with the repair of FPL, ICRB, EDC etc and POP slab application. Since there is omission in noting fracture in Ext.P8, the same by itself is not a ground to hold that the injured not sustained fracture in this case, since fracture was diagnosed when he was immediately taken to Matha Hospital, Thellakom for better treatment soon after the examination of him by PW9, the doctor at Medical College Hospital, Kottayam at 9:00 p.m, after diagnosing four lengthy injuries as noted in Ext.P8 extracted herein above. Therefore, the argument addressed by the learned counsel for the appellant that no offence under Section 326 is made out in this case for want of noting fracture in Ext.P8 cannot be sustained. **Crl.Appeal.No.2456 of 2007** **==> picture [7 x 9] intentionally omitted <==** 13. Coming to Section 307 also, it is argued by the learned counsel for the appellant that, since there is no injuries on the vital parts of the body, the intention of the accused to do away the injured could not be inferred and, therefore, the Sessions Court went wrong in finding commission of offence under Section 307 of IPC also. In this connection, the learned counsel has placed a decision of the Apex Court in _**Sadakat Kotwar and Another v. The State of Jharkhand**_ **[LL 2021 SC 643]** . It is argued by the learned counsel for the appellant that in the said decision paragraph 4, the Apex Court held as under: _As observed and held by this Court in catena of decisions nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used, part of the body chosen for assault and the nature of the injury caused. Considering the case on hand on the aforesaid principles, when the deadly weapon - dagger has been used, there was a stab injury on_ ## **Crl.Appeal.No.2456 of 2007** ## 10 _the stomach and near the chest which can be said to be on the vital part of the body and the nature of injuries caused, it is rightly held that the appellants have committed the offence under Section 307 IPC._ 14. Before discussing the ingredients to constitute offences under sections 307 and 326 of IPC, it is apposite to appraise the evidence adduced by the prosecution in this case to prove the said offences. In this case, though PW1, who had given Ext.P1, FIS not fully supported the occurrence, he had admitted Ext.P1 and also supported the prosecution case on the point that he had found the injured, who was examined as PW2 at the place of occurrence, soon after the occurrence. The evidence of the PW2, the injured during his chief examination is that while PW2 was walking along with the PW1 and when both of them reached near the shop of Mathai, PW5, the accused came across and he slammed him and there was natural light and the light available in ## **Crl.Appeal.No.2456 of 2007** 11 front of the shop of PW5, at the place of occurrence. Then after uttering to kill PW2, the injured, the accused caused injuries on his left hand as well as left leg using a sword stick. When PW2 cried aloud, the accused ran away. On hearing the cry of PW2, Keecheri Gopi, Thankachan and Vijayakumar (PW3) rushed to the spot and he was taken to Medical College Hospital in a jeep. Though he was subjected to cross-examination, nothing established to disbelieve him in the matter of occurrence though some immaterial contradictions extracted. 15. It is pointed out by the learned counsel for the appellant that PW2's evidence to the effect that the accused attempted to cause fatal injuries on vital part cannot be believed, as the same not stated before the police, and, therefore, the intention to commit murder cannot be found. 16. It has been observed by the learned ## **Crl.Appeal.No.2456 of 2007** 12 Sessions Judge that in chief examination and in the police statement as well as in the additional police statement, such a version is absent. Therefore, it was found by the learned Sessions Judge that, it could not be ruled out that it is a material improvement on the side of PW2. 17. I have perused the evidence of PW2. It is true that during cross-examination, such a version was given by PW2 and Exts.D1, D1(a), and D1(b) marked during his evidence. Going by D1, D1(a) and D1(b) contradictions, it has to be observed that D1 is pertaining to a subsequent event to the effect that PW2 went on sleep due to oozing of more blood in consequence of the cut injuries. Similarly, he denied his previous statement that people reached there, on knowing the occurrence and he stated that people reached the place of occurrence on hearing his cry. Similarly, he had denied his previous statement 13 ## **Crl.Appeal.No.2456 of 2007** that he had animosity towards the accused. 18. It is the settled law that minor contradictions of immaterial nature are of no significance and the evidence in toto to be read to appraise and decide the fact in issue. Immaterial contradictions would not stand in the way of disbelieving the case of an injured witness in toto as the evidence of PW2 is otherwise, liable to be accepted since the same is attached with truth with seal of injuries he sustained as deposed by PW9 and PW10 and as per Exts.P8 to P11. 19. Apart from the evidence of PWs.9 and 10, the other witnesses also supported the prosecution case and PW2 identified MO1, the sword stick used to assault him in open court, which was recovered as per the disclosure statement given by the accused positing authorship of concealment. Apart from that, PW3 also supported the prosecution in so far as the ## **Crl.Appeal.No.2456 of 2007** ## 14 aftermath of the occurrence on 04.04.2003 at Puthukulam junction. His evidence is that while PW3 along with one Gopinathan was talking in front of the house of Gopinathan, he heard a noise. When they moved to the place of occurrence, PW1 informed that PW2 sustained cut injury and when he lighted torch, the accused was found little away on the western side and, thereafter, he ran away along with the sword stick. He also deposed that PW2 was found injured there and he was taken to hospital. Nothing extracted during cross-examination of PW3 to shake his version. PW4, one Thomas, examined by the prosecution to prove the occurrence turned hostile the prosecution. PW5, an occurrence witness, given evidence that he had taken PW2 to the hospital on knowing that he sustained cut injuries. But he also turned hostile the prosecution regarding other aspects. Prosecution examined PW6 to prove Ext.P5, Scene ## **Crl.Appeal.No.2456 of 2007** 15 Mahazar. He deposed that Circle Inspector prepared the Mahazar and collected sand from the place of occurrence with blood stains. He admitted his signature in the Scene Mahazar also. During cross-examination of PW6 also, nothing extracted to disbelieve his evidence in the matter of preparation of Mahazar. Ext.P6 is the Seizure Mahazar in this case, prepared on 20.02.2007 at 5 p.m while recovering MO1 under Section 27 of the Evidence Act. He supported the recovery after admitting the signature in Ext.P6. Though he was subjected to cross- examination, nothing extracted to disbelieve his version in the matter of recovery also. Ext.P7 is the Mahazar prepared in relation to recovery of MO2 and MO3. PW8, a signatory to Ext.P7, fully supported Ext.P7 and recovery of MO2 and MO3 without ambiguity. Ext.P12 is the Scene Plan showing the place of occurrence and is proved by the evidence of PW11, the then Village Officer, ## **Crl.Appeal.No.2456 of 2007** ## 16 Kooroppada village. 20. Coming to the registration of crime and the investigation, it was PW12, who was the Circle Inspector of Police as on 04.04.2003 at Pampady Police Station, recorded Ext.P1 statement given by PW1 and registered Ext.P13 FIR in Crime No.86/2003. He deposed about the said fact. He also deposed about the search done at the house of the accused as per Ext.P14 Search Memo. He also supported Ext.P15 Search List. The investigation in this case was taken by the Circle Inspector of Police, Pampady with effect from 05.04.2003 and he prepared Ext.P5 Scene Mahazar and recovered MO3 and MO4, the shirt and double dhoti, worn by PW2 at the time of occurrence. PW12 identified those items during his examination. PW14 later investigated this Crime from 17.08.2006 and he recorded Ext.P6(a) disclosure statement of the accused and on the basis of the said disclosure ## **Crl.Appeal.No.2456 of 2007** ## 17 statement detailing the authorship of concealment of MO1, sword stick, following the accused to the place of concealment, MO1 taken by the accused from there was recovered on the basis of the disclosure statement given by the accused at his instance under Section 27 of the Evidence Act. In fact, the recovery evidence in this case is fully established by the evidence of PW14 as well as PW6, the witness to the recovery mahazar, Ext.P6. 21. On analysing the entire evidence, the learned Sessions Judge found that the accused committed offences under Section 326 and 307 of IPC. 22. At this juncture, it is apposite to refer the relevant decisions of the Apex Court dealing with the ingredients to commit an offence under Section 307 and 326 of IPC. Section 307 of IPC reads as follows: ## _**307. Attempts by Life Convicts** :-Whoever_ _does any act with such intention or_ **Crl.Appeal.No.2456 of 2007** 18 _knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned._ 23. It is the settled law that in order to constitute an offence under section 307 of IPC, the essential ingredients, are, (1) voluntarily causing hurt, (2) hurt caused must be grievous hurt; and (3) the grievous hurt must have been caused by dangerous weapons or means. Decision reported in _**Prabhu v. State of MP**_ **[AIR 2009 SC** **745],** of the Apex Court is on this point. **==> picture [388 x 13] intentionally omitted <==** essential ingredients are; (i) that the death of human being was attempted; - (ii) that such death was attempted to be ## **Crl.Appeal.No.2456 of 2007** 19 caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be to imminently dangerous that it must in all probability cause (a) death, or (b)such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. 25. The first part makes any act committed ## **Crl.Appeal.No.2456 of 2007** 20 with the intention of knowledge that it would amount to murder if the act caused death punishable with imprisonment up to ten years. The second part makes such an act punishable with imprisonment for life if hurt is caused thereby. Thus even if the act does not cause any injury, it is punishable with imprisonment up to 10 years. If it does cause an injury and therefore hurt, it is punishable with imprisonment for life. 26. In order to justify a conviction under section 307 of IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assurance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to ## **Crl.Appeal.No.2456 of 2007** ## 21 actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof. **[** _**State of Madhya Pradesh v. Kedar Yadav**_ **: 2011 (1) SCC (Cri) 1008;** _**State of Madhya Pradesh v. Mohan**_ **: (2013)** **Crl.Appeal.No.2456 of 2007** 22 ## **14 SCC 116].** 27. Further, it must be noted that section 307 IPC provides for imprisonment for life if the act causes “hurt”. It does not require that the hurt should be grievous or of any particular degree. The intention to cause death is clearly attributable to the accused. **[** _**Pasupuleti Siva Ramakrishna Rao v. State of Andhra Pradesh**_ **: 2014 (2) Scale 417 : (2014) 5** **SCC 369].** 28. Further in order to attract an offence under section 307 of IPC, an attempt to murder, the act attempted must be such that if not prevented or intercepted, it would be sufficient to cause death of the victim. To constitute the offence no injury need be caused to the victim. If in the course of the attempt bodily injury is caused the accused would be liable to enhanced punishment. To sustain conviction under section 307 the intention to ## **Crl.Appeal.No.2456 of 2007** **==> picture [13 x 9] intentionally omitted <==** kill should be clearly proved by circumstances like persistence of attack on vital parts of the body or the assailant lying in wait armed with dangerous weapons or declarations made by him that the victim would be killed. The intention is not gatherable merely from the seriousness of resultant injury. **[** _**Sarju Prasad**_ _**v. State of Bihar**_ **: AIR 1965 SC 843] : (1965) 1 CrLJ 766 : (1965) 2 SCJ 126;** _**Bhagwan Din v. State**_ **: AIR 1967 All 580;** _**John v. State of Kerala**_ **: ILR (1969) 2 Ker 604 : 1969 Ker LT 488].** 29. That apart, what the Court has to see whether the act irrespective of its result, was done with the intention of knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under section ## **Crl.Appeal.No.2456 of 2007** **==> picture [13 x 9] intentionally omitted <==** 307, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances; and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body when the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. 30. Thus the law emerges is that, for the purpose of section 307, what is material is the intention or knowledge, not the consequence of the actual act done for the purpose of carrying out the intention. That section clearly contemplates an act which is done with the intention of causing death but which fails to bring about the intended consequence on account of the intervention of a cause operating independently of the volition of the agent. To determine whether an act falls within the ambit ## **Crl.Appeal.No.2456 of 2007** **==> picture [13 x 9] intentionally omitted <==** of section 307, on the wording of this section, three considerations appear to be essential (i) the nature of the act done, (ii) the intention or knowledge of the agent, and (iii) the circumstances under which the act is done. 31. Coming to section 326, in order to prove an offence under Section 326 of IPC, the prosecution must establish (a) that the accused caused grievous hurt as contemplated in section 320 IPC (b) that the accused caused it voluntarily as envisaged in section 322 IPC (c) that causing of such grievous hurt was made by means of an instrument for shooting, etc., or by means of any instrument, which, used as a weapon of offence, is likely to cause death; or by means of fire, etc., or by means of any poison, etc., or by means of any substance which it is deleterious to the human body to inhale, etc., or by means of any animal. 32. In the decision reported in **S** _**tate of UP**_ ## **Crl.Appeal.No.2456 of 2007** ## 26 ## _**v. Indrajeet alias Sukhatha**_ **[(2000) 7 SCC 249],** the Apex Court considered the word 'dangerous weapon' and held that 'dangerous weapon' would depend upon facts of this case and no generalisation can be made. In _**Prabhu's**_ case (supra), the Apex Court held that the factors involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether the weapon was a dangerous or deadly weapon or not. That would determine whether in the case of section 325 or section 326 would be applicable. 33. Thus on re-appreciation of entire evidence, it has to be held that the prosecution succeed in establishing that the accused assaulted PW2 with intention to do away him after uttering so by using MO1 and in this attempt PW2 sustained multiple injuries, including grievous injury, however PW2 survived. Therefore, the prosecution well proved ## **Crl.Appeal.No.2456 of 2007** 27 commission of offences under Section 326 as well as 307 of IPC and the said conviction does not require any interference. 34. The learned counsel for the appellant argued to reduce the sentence since he failed to substantiate interference in the matter of conviction highlighting the present age of the accused. 35. To be on sentence, in this matter, the Sessions Court imposed rigorous imprisonment for three years and to pay fine of Rs.5,000/- under section 326 of IPC. I am inclined to reduce the same for a period of two years and to pay fine of Rs.5,000/-. In default of payment of fine rigorous imprisonment for six months also was imposed. For the offence under Section 307 of IPC, the Sessions Court imposed rigorous imprisonment for four years and to fine of Rs.10,000/-. In default of payment of fine, rigorous imprisonment for one year also was **Crl.Appeal.No.2456 of 2007** **==> picture [13 x 9] intentionally omitted <==** imposed. I am inclined to modify the sentence imposed on the appellant/accused for the offence under section 307 of IPC for a period of 3 years and to pay a fine of Rs.25,000/-. The rigorous imprisonment imposed by the Sessions Court for non-payment of fine for six months for the offence under section 326 of IPC can be reduced to two months and under section 307 of IPC can be reduced to ten months. 36. In the result, the appeal allowed in part. Conviction imposed by the Sessions Court under section 307 and 326 of IPC stands confirmed. Sentence shall stand modified and thereby, (1) the appellant/accused is sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.25,000/for the offence punishable under section 307 of IPC. In default of payment of fine, the accused shall undergo rigorous imprisonment for a period of eight **Crl.Appeal.No.2456 of 2007** 29 months. (2) The accused/the appellant is sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.10,000/for the offence punishable under section 326 of IPC. In default of payment of fine, the accused shall undergo rigorous imprisonment for a period of two months. (3) Fine if realised or deposited Rs.20,000/(Rupees Twenty Thousand Only) shall be given to PW2 as compensation under section 357(1)(b) of Cr.P.C. (4) The modified substantive sentence shall run concurrently. (5) Set off is given for the period the accused was in judicial custody in connection with this case. (6) The bail bond executed by the appellant consequent to the order of this Court stands cancelled and the order suspending sentence also stands cancelled. (7) The appellant is directed to surrender before the Sessions Court 30 ## **Crl.Appeal.No.2456 of 2007** within ten days to undergo the modified sentence. On failure, the Sessions Court is directed to execute the sentence as per law forthwith, without fail. (8) Regarding MO1 to 4, the order of the Sessions Judge shall follow. (9) Registry is directed to forward copy of this judgment to the Sessions Court for information and compliance. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww