Joseph @ Appachan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943 CRL.A NO. 1436 OF 2006** **AGAINST THE JUDGMENT DATED 29.5.2006 IN SC 45/2006 OF ADDITIONAL DISTRICT COURT (ADHOC-1), KOTTAYAM, CP 29/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VAIKOM,** ## **KOTTAYAM** ## **APPELLANT/ACCUSED:** JOSEPH @ APPACHAN, S/O OUSEPH,KARIVELICHIRA HOUSE, CHALAPARAMBU BHAGOM,, KIZHAKKUMCHERI, VADAKKEMURI KARA, NADUVILE VILLAGE, KOTTAYAM. BY ADVS. SRI.H.RAMANAN SRI.ALEX N.MATHEW KOLLAM SRIP.RAJEEV SRI.M.M.VINOD KUMAR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY SMT. PUSHPALATHA M.K. PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.1436/2006 -:2:- ## **J U D G M E N T** Dated this the 28[th] day of October, 2021 This appeal has been filed by the accused in S.C.No.45/2006 on the file of the Additional Sessions Court (Adhoc-I), Kottayam challenging the judgment dated 29.5.2006 convicting him under Section 307 of IPC. 2. The prosecution case in short is that on 10.7.2005 at 1.30 pm, the accused inflicted injuries on PW2 with a chopper on his head and neck at his house situated at Chalaparambu Bhagom of Vaikom Municipality. On hearing the cry of PW2, when PW1 reached the spot to rescue PW2, the accused inflicted injuries on her neck, face, arms and shoulder as well and thereby committed the offence under Section 307 IPC. 3. Immediately after the incident, PW1 and PW2 were taken to the Medical College, Hospital, Kottayam. PW10, the doctor examined them and issued Exts.P9 and P19 wound certificates. PW12, the Head Constable at Vaikom Police Station recorded the First Information Statement of PW1 at the hospital. Crl.Appeal No.1436/2006 -:3:- On the basis of Ext.P1 FIS, Ext.P11 FIR was registered against the accused. PW13, the Circle Inspector of Police, conducted the investigation. He arrested the accused on 10.7.2005. After completing the investigation, he filed final report before the Magistrate. The learned Magistrate after complying with the statutory formalities committed the case to stand trial at the Court of Sessions. 4. The accused appeared at the court below. After hearing both sides, charge was framed against the accused under Section 307 of IPC. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PW1 to PW13 and marked Exts.P1 to P12. MO1 and MO2 series were identified. After the completion of prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances brought against him in the evidence. No defence evidence was adduced. 6. Considering the evidence on record, the court below found the accused guilty under Section 307 of IPC and was convicted him for the said offence. The accused was sentenced Crl.Appeal No.1436/2006 -:4:- to undergo rigorous imprisonment for 7 years with a fine of Rs.2,500/-, in default to suffer rigorous imprisonment for 7 months. Out of the fine amount Rs.1,000/- each was ordered to be given to PW1 and PW2 as compensation under Section 357(1) of Cr.P.C. Aggrieved by the said conviction and sentence, the accused preferred this appeal. 7. I have heard Sri. Ramanan, the learned counsel for the appellant and Smt.Pushpalatha M.K., the learned Public Prosecutor. 8. The learned counsel appearing for the appellant impeached the findings of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that PW1 and PW2 whose evidence were heavily relied on by the court below are interested witnesses and the independent occurrence witnesses examined as PW3 to PW9 did not support the prosecution. The learned counsel further submitted that their evidence are full of contradictions and omissions and could not have been relied on by the court below. The counsel added that, at any rate, the offence under Section 307 of IPC is not attracted as the intention on the part of the Crl.Appeal No.1436/2006 -:5:- accused to cause death of PW1 or PW2 had not been established. 9. The learned Public Prosecutor, on the other hand, supported the findings and verdict handed down by the court below and argued that, necessary ingredients of Section 307 of IPC had been established and the prosecution has succeeded in proving the case beyond reasonable doubt. 10. The prosecution mainly relied on the oral testimony of PW1 and PW2 and recovery of MO1 chopper consequent to the confession statement of the accused while in custody under Section 27 of the Indian Evidence Act to prove the incident and to fix the culpability on the accused. 11. PW1, PW2 and the accused are close relatives. PW2 is the brother of the husband of PW1. The accused is the uncle of PW1. The accused was residing adjacent to the house of PW1 and PW2. The incident was taken place at the house of the accused. The evidence of PW1 and PW2 would show that the accused spread some scandal about the chastity of PW1. PW2 who is the husband's brother of PW1 went to the house of the accused on 10.7.2005 at 1.30 pm to question the accused about the said scandal allegedly spread by him. PW2 gave evidence Crl.Appeal No.1436/2006 -:6:- that he asked the accused about the necessity of keeping a cordial relationship with PW1 and that the so-called scandal would make ill-reputation to PW1. At that time, the accused shouted at him, went inside the house and took MO1 chopper and gave a cut on his neck as well as head. He further deposed that he fell down and thereafter, the accused again inflicted cut on his face and head with MO1. When he cried aloud, PW1 rushed to the spot. The accused then shouted at her and inflicted injuries on various parts of the body of PW1 as well with MO1. PW1 gave evidence that on the date and time of the incident, while she was feeding her child, PW2 came to the house and went to the house of the accused for questioning him as to the scandal he spread about PW1 and immediately there after, she heard the cry of PW2 and then she rushed to the house of the accused where she saw the accused inflicting cut on PW2 with the chopper. She further deposed that the accused thereafter assaulted her as well with the chopper. 12. Both PW1 and PW2 were cross examined at length by the learned counsel for the accused. But, nothing tangible has been extracted from their evidence to create any shadow of Crl.Appeal No.1436/2006 -:7:- doubt that they are not truthful witnesses. PW1 and PW2 clearly deposed that the accused attacked them and inflicted injury with MO1 chopper. They gave reliable, consistent and credible version of the crime and their evidence inspires confidence. It is trite that the evidence of the injured witnesses have to be given much weightage. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he/she is a witness that comes with a built-in-guarantee of his/her presence at the scene of the crime and is unlikely to spare his/her actual assailant in order to falsely implicate someone. The said legal proposition has been upheld by the Honourable Supreme Court of India in _**State of Uttar Pradesh V. Naresh and Others**_ [(2011) 4 SCC 324], wherein it was held that the testimony of injured witness must be given due weightage. PW1 and PW2 gave evidence in tune with the prosecution. They clearly deposed about the incident. The learned counsel for the appellant pointed out certain contradictions and omissions in the evidence of PW1. Marginal variations, slight contradictions and insignificant omissions are bound to occur when witnesses gave Crl.Appeal No.1436/2006 -:8:- evidence after lapse of time. There is no vital contradictions or material omissions in the evidence of PW1 and PW2 affecting the prosecution evidence. They clearly deposed the manner in which the accused attacked them and the nature of weapon used by him and parts of their body whereupon the injuries were inflicted by the accused. They had identified MO1 as well as the accused at the court. Therefore, I hold that the evidence of PW1 and PW2 can be safely relied on to prove the incident and fix the culpability on the accused. 13. The evidence of PW13, the investigating officer, would show that on questioning the accused while in police custody, he confessed that MO1 chopper used for the commission of offence was concealed at a place while he ran away and if he was taken to the said place, he will show the chopper. The said disclosure statement has been marked as Ext.P8(a). On the basis of the said disclosure statement, PW13 along with the accused went to the place of concealment and it was recovered as per Ext.P8 recovery mahazar. Thus, the said recovery also corroborates the evidence given by Pw1 and PW2. 14. The oral evidence of PW1 and PW2 as well as the Crl.Appeal No.1436/2006 -:9:- evidence regarding the recovery gets corroboration from the medical evidence as well. PW10 is the doctor who examined PW1 and PW2 at the Medical College Hospital, Kottayam at 3.05 pm on the same day. He, on his examination found injuries on the body of PW1 and PW2 and issued Exts.P9 and P10 wound certificates. The injuries have been mentioned in the wound certificates. PW1 stated to the doctor that she was assaulted by her uncle. Thus, the medical evidence also supports the prosecution case. 15. On a careful examination of the entire evidence on record, I have no hesitation to come to a conclusion that the prosecution successfully established that the accused assaulted and inflicted injuries on the body of PW1 and PW2. 16. The next crucial question arises for consideration is whether the act of the accused inflicting injuries on PW1 and PW2 would attract offence under Section 307 of IPC. The court below found that Section 307 of IPC would squarely attract. Assailing the said finding, the learned counsel for the appellant Sri. Ramanan, vehemently argued that the evidence on record would not disclose the offence under Section 307 of IPC. The incident Crl.Appeal No.1436/2006 -:10:- could, at best, only be said to be occurred in a spur of moment, submits the learned counsel. I find some force in the said argument. 17. A person can be said to commit an offence under Section 307 of IPC when he has intention to commit murder and in execution of that intention does an act towards its commission, irrespective of the fact whether that is penultimate act or not. The court has to see the intention behind the act to come to the conclusion whether an offence under Section 307 of IPC is attracted or not. It is settled that to bring a case under Section 307 of IPC the prosecution has to make out the facts and circumstances envisaged by Section 300 of IPC. If the ingredients of Section 300 of IPC are wholly lacking, there can be no conviction under Section 307 of IPC. The act committed by the accused must be an act capable of causing death in the natural and ordinary course of nature; and if the act complained of is not that description, the accused cannot be convicted under Section 307 of IPC. 18. Coming to the evidence on record, it is true that there are injuries on the neck and chin of PW1 and on the face and Crl.Appeal No.1436/2006 -:11:- skull of PW2. It is also true that the doctor has deposed that those injuries are sufficient enough in the ordinary course of things to cause death of a person. But the crucial question is whether the accused has definite intention to cause death of PW1 and PW2. As stated already, the parties are close relatives. The accused is none other than the uncle of PW1. They are residing in the neighbouring house. There is some dispute between them relating to the spread of scandal about PW1 by the accused. It is crucial to note that the place of incident is the house of the accused. It was PW2 who went to the house of the accused to question the scandal allegedly spread by the accused against PW1. During exchange of words the accused assaulted PW2. Hearing the cry, PW1 rushed to the house of the accused where she was also assaulted by the accused with MO1. It is evident that the assault was taken place when PW1 and PW2 went to the house of the accused to question him about the allegation of scandal spread by him against PW1. In this circumstance, it cannot be said that the act of the accused was a predetermined one. There are no other supporting evidence to show that the accused had any intention to cause death of PW1 or PW2. The Crl.Appeal No.1436/2006 -:12:- date of hospitalisation also was not long. Considering all these aspects, I am of the view that there is no reliable evidence to come to the conclusion that there was intention or knowledge on the part of the accused to kill PW1 or PW2. There is also no satisfactory evidence to come to the conclusion that the act committed by the accused is an act capable of causing death in the natural and ordinary course of things. Therefore, I am of the view that the prosecution has failed to make out a case under Section 307 of IPC. 19. As stated already, the prosecution has succeeded in proving that the accused had inflicted injuries on PW1 and PW2 with MO1 weapon. The doctor also deposed that the said injuries could be caused with MO1. No doubt, MO1 is a dangerous weapon described under Section 326 of IPC. Therefore, the prosecution has succeeded in proving beyond reasonable doubt that the accused has voluntarily caused hurt by dangerous weapon attracting offence under Section 324 of IPC. Even though there is no charge under Section 324 of IPC, being a lesser offence, the accused can be convicted under Section 324 of IPC. Therefore, I hold that the prosecution had succeeded in Crl.Appeal No.1436/2006 -:13:- proving that the accused has committed offence under Section 324 of IPC and he is convicted for the said offence. 20. The next question is regarding the sentence. The evidence on record would show that PW1 and PW2 sustained injuries in the incident. Section 357 of Cr.P.C is an important provision empowering the court to award compensation to the victim of the crime while passing the judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to the victim who had suffered by the action of the accused. It is a measure of responding appropriate claim to the crime as well as reconciling the victim with the offender. The Supreme Court in _**Hari Kishan & State of Haryana v. Sukhbir Singh & Others**_ [AIR 1988 SC 2127], highlighted the necessity of invoking the power under Section 357 of Cr.P.C by the court. The Supreme Court has recommended that the power under Section 357 of Cr.P.C is to be exercised liberally so as to meet the ends of justice in the better way. 21. The learned counsel for the appellant submitted that the parties being close relatives and also considering the fact that Crl.Appeal No.1436/2006 -:14:- the accused is now aged 68 years, the substantive sentence to be awarded under Section 324 of IPC may be confined to till rising of court and instead adequate compensation be awarded to the victims. I find the said submission to be reasonable. 22. Considering all these aspects, I am of the view that adequate compensation has to be granted to PW1 and PW2 under Section 357 of Cr.P.C. The Supreme Court in _**Hari Kishan**_ (supra) has observed that the quantum of compensation may be determined by taking into account the nature of crime and justness of the claim by the victim and the ability of the accused to pay and the compensation must be reasonable. Considering these aspects, I am of the view that the compensation of Rs.50,000/- each to PW1 and PW2 could be just and reasonable. From the facts and circumstances of the case, I am satisfied that the imposition of sentence of simple imprisonment till rising of court, with a direction to pay compensation as indicated above under Section 357(3) of Cr.P.C. would definitely advance the interest of justice. Accordingly, the conviction and sentence passed by the court below under Section 307 of IPC is set aside and he is convicted under Section 324 of IPC. The accused is Crl.Appeal No.1436/2006 -:15:- sentenced to undergo simple imprisonment till rising of court and to pay compensation of Rs.50,000/- each (total Rs.1,00,000/[rupees one lakh]), in default to suffer simple imprisonment for a period of two year under Section 324 of IPC. The appeal is allowed in part as above. Sd/- **DR. KAUSER EDAPPAGATH JUDGE** **kp True copy** P.A. To Judge