Joshy and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **MONDAY, THE 13[TH] DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943** **CRL.A NO. 1397 OF 2006** **AGAINST THE JUDGMENT IN SC 108/2005 OF III ADDITIONAL SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.1, THRISSUR** ## **APPELLANTS/ACCUSED:** 1 JOSHY, S/O. FRANCIS, AGED 1 YEARS EDALATHUVEETITIL HOUSE, VINCENT DE PAUL COLONY,, CHOVOOR VILLAGE, KIZHAKE ANGADI. 2 SHAIJU, S/O.PANAMUKKATHVEETTIL, AGED 1 YEARS SURYAN, PARAKOVIL DESOM,, CHOVOOR VILLAGE. 3 BAIJU, S/O.KALAPURAKALVEETTIL RAJU, AGED 1 YEARS PARALAM DESOM, VENGINISSERY VILLAGE. BY ADVS. P.M.RAFIQ P.VIJAYA BHANU (SR.) ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, ERNAKULAM. BY SRI SANGEETH RAJ PUBLIC PROSECUTOR ## **OTHER PRESENT:** THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.1397/2006 2 ## **JUDGMENT** This appeal has been filed challenging the conviction and sentence imposed on the appellants in S.C.No.108/2005 on the file of the III Additional Sessions Court, Fast Track-I, Thrissur in a prosecution alleging commission of offences under Sections 324, 326 and 308 r/w Sec.34 of IPC. 2. The gist of the prosecution case is that, on account of previous enemity owing to an earlier enimity on account of an incident, which took place at a Bar known as 'Mahima Bar' in Thrissur Town, the appellants/accused 1 to 3 in furtherance of their common intention attacked PW3 at about 9.30 p.m. on 15.8.2004 on a road leading to Mullakkal Bhagavathi temple within Kanimangalam Village of Thrissur District. It is alleged that the 1[st] accused attacked PW3 with a chopper, the 2[nd] accused attacked him with a wooden rod and the 3[rd] accused with an iron pipe. Following investigation of the case, a final report was laid before the Judicial First Class Magistrate Court, Thrissur. The case was committed to the Sessions Court, Thrissur and was finally made over to the III Additional Sessions Judge (Adhoc), Fast Track Court No.I, Thrissur for trial and disposal. Charges were framed alleging the Crl.Appeal No.1397/2006 3 commission of offences under Sections 324, 326 and 308 r/w.34 of IPC. On the appellants/accused pleading not guilty, the case was posted for trial. The prosecution examined PWS 1 to 9, marked Exts.P1 to P9 and identified material objects (Mos 1 to 4). The accused were questioned under Section 313 of Cr.P.C. and they denied all incriminating material appearing against them. On the defence side, one document was sought to be marked which is the complaint filed by the brother of PW3 stating that the investigation into the crime was not progressing in the right manner. Following trial of the case and on an appreciation of the evidence tendered by the prosecution, the trial Court convicted the appellants/accused under Section 308 r/w.Section 34 of IPC and sentenced them to undergo rigorous imprisonment for four years each, and to pay a fine of Rs.5000/- each and in default of payment of fine, to undergo simple imprisonment for three months under Section 308 r/w Section 34 of IPC. 75% of the fine recovered was directed to paid to PW3 as compensation under Section 357 (1) (b) of Cr.P.C. Set off as permissible under law was also granted. 3. The learned counsel for the appellants/accused 1 to 3 submits that the conviction is primarily based on the evidence of PWs 3 and 5. He would submit that, though PW5 is cited as an occurrence Crl.Appeal No.1397/2006 4 witness, in the scene mahazar which is marked as Ext.P7, the house of PW5 is not mentioned, though the houses of several others are seen mentioned. He would submit that the First Information Statement was given by the brother of PW3 on 17.8.2004, i.e, two days after the incident. The reasons stated in the First Information Statement for the delay in giving statement was that PW3 was unconscious following the brutal attack on him. He submits that the statement of PW3, following his discharge from hospital and the statement of PW5 regarding the identification of the accused persons was at variance with the evidence tendered by the Investigating Officer. He states that the contradiction in the place of recording of statement of Pws3 and 5 is sufficient to dislodge the prosecution case. He also submits that, though PW3 had specifically stated that the accused ran away after attacking him on CW4 (one Sujith) reaching the spot, the prosecution failed to examine CW4. It is the suggestion of the learned counsel for the appellants with reference to the statement given by the accused persons at the time of questioning under Section 313 Cr.P.C. that, if Sujith had been examined, the truth would have come out. The learned counsel for the appellants also submits that the scene mahazar does not make any reference to the availability of light either in front of any house nearby or street light which creates suspicion regarding the identification of the Crl.Appeal No.1397/2006 5 accused. He states that, at any rate, the conviction under Section 308 IPC cannot be sustained as the injuries in question are not sufficient to cause death. With reference to the judgment of the Supreme Court in _**Mohd. Iqbal. M. Shaikh & others v. State of Maharashtra; (1998) 4 SCC 494,**_ it is submitted that, where PW3 and PW5 did not know the accused persons, they could have been identified only through proper test identification parade and further that the accused persons were identified on the basis of prompting from the investigating officer. He finally submits that even if this Court were to uphold the conviction under Section 308 IPC, this Court may consider reducing the sentence of imprisonment on account of the fact that nearly 17 years have elapsed since the incident and all the accused are now settled in life and living with their families. 4. The learned Public Prosecutor on the other hand submits that this is a case where the prosecution has successfully established the motive, the act, has proved the injuries and the accused persons have been correctly identified. He also states that the weapons (Mos 1 to 3) were recovered under Section 27 of the Evidence Act. He also refers to Section 145 of the Evidence Act to contend that the question regarding failure to mention the house of PW5 in the scene mahazar and the Crl.Appeal No.1397/2006 6 question as to whether there was sufficient light for PW3 and PW5 to identify the accused was the matter that should have been brought out in cross examination and on failure to do so, the accused cannot, at this stage of appeal, contend that these issues created a flaw in the prosecution case. 5. I have considered the contentions raised. I have also gone through the evidence tendered by PWs 3, 5 and 7 in sufficient detail. The evidence of PW3, the injured person would establish beyond doubt that there was an incident which occurred at the 'Mahima Bar' in Thrissur Town between the 1[st] accused and PW3 and the 1[st] accused had threatened PW3 by stating as follows:- ## “നനിനകക്കുള്ള മരക്കുനന്ന് ഞഞാൻ അരചന്ന് വയകക്കുനക്കുണന്ന്.” The accused have been clearly identified in the box by PW3. It is, no doubt, true that PW3 has stated that the accused were identified when they were produced at his house, after he was discharged from the hospital. He also states that his statement was recorded at his residence after discharge from the Hospital. PW7, the investigating officer has stated that the statement of PW3 was recorded from the hospital. This, no doubt, is a contradiction regarding the place at which the statement was recorded. Similarly, in the case of recording of Crl.Appeal No.1397/2006 7 statement of PW5, there is a contradiction in as much as while PW5 would state in the box that her statement was recorded on the date which the accused persons were brought to the house of PW3 for the purpose of identification, the investigating officer stated that the statement of PW5 was recorded 10 days after the incident. These contradictions, in my view, do not in any manner affect the prosecution case as these are no material contradictions which would result in causing a doubt in the prosecution case. PW1, the Doctor, who treated PW3 immediately after the incident, has clearly given evidence regarding the injuries caused to PW3. The injuries are also recorded in the wound certificate which has been marked as Ext.P1. A perusal of Ext.P1 would show that large number of injuries were caused to PW3 and the evidence of PW1 is sufficient to establish that the injury Nos.15 and 16 were sufficient to cause death. The evidence of PW5 shows that she had clearly seen the accused persons attacking PW3 and that she had witnessed the same clearly from the light provided by a street light. She has also identified the accused. The First Information Statement given by the brother of PW3 does not mention the identity of the accused persons. The contention of the learned counsel for the appellants that there was no way in which the First Information Statement could have been given by the brother of PW3 since PW3 was Crl.Appeal No.1397/2006 8 stated to be unconscious also does not merit consideration on account of the fact that a reading of the First Information Statement shows that on receiving information regarding attack on PW3, the brother of PW3, who was examined as PW4, rushed to the hospital where he saw his father and two neighbours. The First Information Statement only states that, from his enquiry, he learnt that his brother had been attacked by three unidentified persons. Therefore, nothing turns on the First Information Statement given by PW4. The question of lack of proper identification does not arise for consideration in this case on account of the fact that both PWs 3 and 5 are consistent in their statement that it was accused 1 to 3 who had attacked PW3. On account of all the aforesaid reasons, I am of the view that the trial Court rightly convicted the appellants/accused 1 to 3 for the offence under Section 308 IPC. 6. The only remaining question is whether the sentence imposed on the appellant/accused 1 to 3 should be interfered with. The trial Court has sentenced the appellants/accused 1 to 3 to undergo rigorous imprisonment for four years together with a fine of Rs.5000/each and in default, to undergo simple imprisonment for a further period of three months and also directed that 75% of fine amount recovered will be paid to PW3 as compensation. Crl.Appeal No.1397/2006 9 7. The learned counsel for the appellants submitted that A1 was aged 21, A2 was aged 27 and A3 was aged 22 years at the time of incident and that 17 years have elapsed since the incident. He also submitted that all the accused are now settled in life and it will be miscarriage of justice, if the sentence of imprisonment for four years were to be confirmed. In the totality of the facts and circumstances of the case, I am of the opinion that the sentence of imprisonment can be reduced from the period of four years to a period of rigorous imprisonment for two years with fine of Rs.75,000/- each and in default thereof, to undergo rigorous imprisonment for a further period of three months under Section 308 r/w Section 34 of IPC. 50% of the fine recovered can also be directed to be paid to PW3 as compensation under Section 357(1)(b) of Cr.P.C. Set off as permissible in law can be allowed. In the result, this appeal is allowed in part. The conviction of the appellants/accused 1 to 3 under Section 308 IPC is confirmed. The appellants/accused 1 to 3 are sentenced to undergo rigorous imprisonment for a period of two years together with a fine of Rs.75,000/- each. On failure to pay the fine, the appellants/accused 1 to 3 shall undergo rigorous imprisonment for a further period of three Crl.Appeal No.1397/2006 10 months. On receipt of the amount of fine, 50% of the amount of fine will be paid to PW3 as compensation under Section 357 (1) (b) of Cr.P.C. Set off is permitted under Section 428 Cr.P.C. **sd/-** **GOPINATH P. JUDGE** acd