KONNARI SIVARAMAN S/O KUNHIRAMAN vs STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941** ## **CRL.A.No.1169 of 2006** **AGAINST THE ORDER/JUDGMENT IN SC 33/1999 of ADDITIONAL SESSIONS COURT (ADHOC-I), THALASSERY DATED 3.6.2006 AND 5.6.2006** **AGAINST THE ORDER/JUDGMENT IN CP 55/1999 of JUDICIAL MAGISTRATE OF FIRST CLASS ,MATTANNUR** **APPELLANT/ACCUSED NO.3:** **KONNARI SIVARAMAN S/O KUNHIRAMAN AGED 31 YEARS, PULLANHIYODE, MUZHAKKUNNU AMSOM,, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADV. SRI.P.P.RAMACHANDRAN** ## **RESPONDENT/COMPLAINANT:** ## **STATE OF KERALA** **(S.H.O IRITTY POLICE STATION), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SMT.MAYA M N, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2019, ALONG WITH CRL.A.1317/2006, THE COURT ON 01.08.2019 PASSED THE FOLLOWING:** Crl.As 1169 & 1317/2006 -2- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **THURSDAY, THE 01ST DAY OF AUGUST 2019 / 10TH SRAVANA, 1941** **CRL.A.No.1317 of 2006** **AGAINST THE ORDER/JUDGMENT IN SC 33/1999 ADDITIONAL SESSIONS COURT (ADHOC-I), THALASSERY DATED 3.6.2006 AND 5.6.2006** **AGAINST THE ORDER/JUDGMENT IN CP 55/1999 of JUDICIAL MAGISTRATE OF FIRST CLASS ,MATTANNUR** **APPELLANTS/ACCUSED NOS.2 AND 4:** **1 KANNADAN ASOKAN, AGED 23 YEARS S/O.KUNHIRAMAN NAMBIAR,, NOW RESIDING AT THILLANKERI AMSOM, VANHERI DESOM, P.O.THILLANKERI, DISTRICT KANNUR.** **2 KANADAN SURENDRAN @ SURESH BABU SON OF KUNHIRAMAN NAMBIAR, DO. DO.** **BY ADVS. SRI.CIBI THOMAS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, (S.H.O.IRITTY POLICE STATION), REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.MAYA M N, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2019, ALONG WITH CRL.A.1169/2006, THE COURT ON 01.08.2019 PASSED THE FOLLOWING:** Crl.As 1169 & 1317/2006 -3- ## **J U D G M E N T** ## **[Crl.A. Nos.1169/2006 and 1317/2006]** Crl.Appeal No.1169/2006 is filed by the 3[rd] accused while Crl.Appeal No.1317/2006 is filed by accused Nos.2 and 4 challenging their conviction under Sections 341 and 326 read with Section 34 of the Indian Penal Code sentencing them to undergo simple imprisonment for one month each for the offence under Section 341 IPC and for imprisonment for three years and to pay a fine of Rs.2,000/- each with a default sentence of simple imprisonment for six months each under Section 326 IPC. Sentences of imprisonment were directed to run concurrently. 2. The first accused died pending trial, and charge against him abated. Accused Nos. 2 and 4 are brothers and the sons of deceased first accused. Third accused is their neighbour. 3. The prosecution case in brief is that Crl.As 1169 & 1317/2006 -4- PW1, a police constable, employed at Karikkottakkari and residing there, visited home twice a week to meet his wife and two young children. On 15.11.1996, on reaching home at about 7 p.m. PW6, his wife, informed him about her hearing a knock at their door the previous night, and on her put on the light to see who was it, she noticed accused Nos.3 and 4 skulking. Even on a previous occasion, there was a similar knock on their door, but she could not then identify the persons who knocked. 4. Sreedevi, the sister of the third accused, had an affair with a priest in a nearby temple and got impregnated by him. PW1 was a committee member of that temple and hence, the third accused sought his assistance to compel the priest to marry his sister. PW1 refused to interfere. This strained his relationship with the accused, and the resultant animosity. 5. On 15.11.1996, when PW6 apprised PW1 about the trespass committed by accused Nos.3 and 4 ## Crl.As 1169 & 1317/2006 -5- the previous night, he went to the house of the first accused to question them about the incident, accompanied by PW2, a neighbour. On being called, the first accused came out of his house. PW1 informed him about the trespass by accused Nos.3 and 4. The first accused immediately rubbished the accusation. Following that, PW1 had an altercation with him which attracted accused Nos.2 and 4 from inside the house. The third accused also joined them soon. The prosecution case is that the first accused caught hold of PW1 from behind, while the third accused also joined the first accused in holding PW1, restraining his movement. The first accused instigated his sons to kill PW1, and accused Nos.2 and 4 armed with MO-3 and MO-4 choppers attacked PW1. Though the accused aimed the blow at the head of PW1, he warded that off and in retaliation, attempted to kick one of them, which they too evaded. Thereafter, A2 inflicted cut injuries above the knees of his right leg, followed Crl.As 1169 & 1317/2006 -6- by the second accused, who inflicted injuries on his left leg cutting the nerves causing heavy bleeding. Hearing the cry of PW1, several persons were attracted to the scene of occurrence. PW1 fell down, and was lifted to the veranda of a nearby shop, from where, he was taken to Iritty Government Hospital in a Lorry driven by PW4, accompanied by PW3 as the cleaner. He was referred to the District Headquarters Hospital at Kannur where he was attended to by PW9 the Assistant Surgeon. PWs 12 and 15 are the other Doctors who had attended to him and produced Ext.P8 case sheet, and issued Ext.P13 discharge certificate indicating that he was admitted on 16.11.1996 and discharged on 13.12.1996. Ext.P6 is the wound certificate issued by PW9, which describes the injuries sustained by PW1 thus: “1. An incised wound 8x5x3 cm on the thigh just above right knee 2. A clear incised wound 5x5x2 cm on the lateral side of left leg just below knee. 3. An incised wound 5x3x1 cm below and medial to the wound no.2 Crl.As 1169 & 1317/2006 -7- 4. Clear incised wound 3x2x1 cm on the front of the left lower limb just below the knee.” 6. The blood stained clothes (MOs I to III) of PW1 were produced before the investigating officer and seized as per Ext.P2 mahazar witnessed by PW5. PW7, who is the owner of the shop in front of which PW1 was made to lay down till the lorry was brought to transport him to the hospital, is also a signatory to the scene mahazar marked as Ext.P3. The blood stained soil collected from the front of the veranda of the shop room is identified as MO-V. Accused Nos.2 and 4 gave confession statements on the basis of which the investigating officer recovered MO-III and MO-IV as per Exts.P4 and P5 mahazars witnessed by PW8. 7. PW9 testifies that the injuries noted in Ext.P6 can be caused by weapons like MO-III and MO-IV and also states that had timely treatment not been given to PW1, he may have succumbed to the injuries, and that the injuries were grievous in ## Crl.As 1169 & 1317/2006 -8- nature. PW12, testifies that Ext.P8 case sheet pertaining to the treatment indicates that PW1's lateral popliteal nerve was cut and that the injury was grievous in nature, and may cause permanent disability. He also testifies that MO-III and MO-IV could cause the injuries that he had noted. PW15 is the Doctor who had treated PW1 on 16.11.1996 and had treated the wound on his right leg and issued Ext.P13 discharge certificate. He also speaks regarding the popliteal nerve being cut. 8. The learned counsel appearing for the appellants drew my attention to the entire grievances. The incident is amply proved by the evidence of PWs 1, 2 and 6 as also the admission of the accused. There is no plea of private defence but DWs 1 and 2 were examined and exhibits marked for the defence in order to faintly establish a plea of private defence which has been rightly negatived by the learned Sessions Judge. I find no reason to differ from the finding of guilt entered into by the Crl.As 1169 & 1317/2006 -9- learned Sessions Judge based on appreciation of evidence. 9. The only question that remains to be considered is whether the court below was justified in finding the accused guilty of committing offence punishable under Section 326 IPC. To attract an offence punishable under Section 326 IPC, the prosecution has to establish that the accused have inflicted grievous hurt as described under the eight clauses in Section 320 of the IPC, which reads thus: “ **320. Grievous hurt** The following kinds of hurt only are designated as “grievous”- _First_ - Emasculation _Secondly_ - Permanent privation of the sight of either eye. _Thirdly_ - Permanent privation of the hearing of either ear. _Fourthly_ - Privation of any member or joint. _Fifthly_ - Destruction or permanent impairing of the powers of any member or joint. _Sixthly_ - Permanent disfiguration of the head or face. _Seventhly_ - Fracture or dislocation of a bone or tooth. _Eighthly_ - Any hurt which endangers life or Crl.As 1169 & 1317/2006 -10- which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” 10. The finding of the learned Sessions Judge that the injuries caused to PW1 would come squarely within the fourth clause. In order to attract the fourth clause to Section 320 IPC, there should be an injury which amounts to 'privation of any member or joint'. That would mean destroying or permanently impairing the powers of any member or joint. Member means distinct part of a whole, especially a limb. Under this clause, the privation does not need to be permanent, but at least to attract the offence there must be a separation of any member or joint at least briefly. The injuries sustained to PW1 are on both legs below and above the knee. The knee joint has not been separated. Neither has he sustained any injury to the knee cap. True, the Doctors testify regarding the cut of popliteal nerve. But that is not privation of a member or joint and therefore, the court below was Crl.As 1169 & 1317/2006 -11- not justified in finding that the injury sustained by PW1 is one coming under the fourth clause of Section 320 IPC. 11. There is no doubt that PW1 was hospitalised for more than 20 days and the injuries could have been fatal if unattended. Hence, it will have to be examined whether the injury would come under the eighth clause to Section 320 IPC. 12. There is documentary as well as oral evidence in the form of three Doctors examined as PWs 9, 12 and 15. All of them stated that the injuries were grievous in nature. Ext.P6 wound certificate, Ext.P8 case sheet and Ext.P13 discharge certificate would also go to show that he was inpatient for more than 20 days and was treated for the injuries he had sustained to his legs. The mere fact that the injured did not attend to his duty for the statutory period or that he remained in the hospital for that period is no indication of his inability to follow his ordinary pursuits.( _**Mathu**_ Crl.As 1169 & 1317/2006 -12- _**Paily** v._ _**State of Kerala [1961 KLT 362 : 1961 KHC 97]**_ ). ## 13. In _**Queen Empress v. Vasta Chela [ILR 19**_ _**BOM 247]**_ it was observed thus:- “an injured man may be quite capable of following his ordinary pursuits, long before 20 days are over and yet for the sake of permanent recovery or greater ease or comfort, be willing to remain as a convalescent in a hospital, especially if he is fed in at the public expense”. 14. Clause 8 of Section 320 IPC speaks of two things, first, about any hurt which endangers life, and secondly, any hurt which causes the sufferer to be during the space of twenty days (a) in severe bodily pain, or (b) unable to follow his ordinary pursuits. The mere fact that a person remained in the hospital for 20 days or more, is therefore, not sufficient to attract the provision of the eighth clause of Section 320 IPC. Any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily Crl.As 1169 & 1317/2006 -13- pain, or unable to follow his ordinary pursuits would therefore be construed as grievous. A person with some injuries may be capable of following his ordinary pursuits long before 20 days are over, but still may continue to remain in the hospital. That may not attract clause eight. [See _**Khair Din** v._ _**Emperor, [AIR 1931 LAH 280]**_ and _**State (Delhi Administration)** v._ _**Mewa Singh [1969 (5) DLT 506]**_ . 15. In the instant case, the Doctors have not been questioned as to whether during the space of 20 days in hospital, PW1 was in severe bodily pain or unable to follow his ordinary pursuits. Ext.P8 case sheet also does not indicate that PW1 was incapable of following his ordinary pursuit during the entire period he was in the hospital. It is only if there is such proof, would it be safe to conclude that the injuries sustained by PW1 would come under the description of 'grievous injury' as defined under clause 8 of Section 320 IPC. From the evidence available in this case, it has to be Crl.As 1169 & 1317/2006 -14- construed that PW1 remained in the hospital as a convalescent for the sake of permanent recovery or comfort. Taking all these factors into consideration, I am of the opinion that the learned Sessions Judge has completely misdirected in construing the evidence and convicting the accused under Section 326 IPC. I therefore, alter the conviction from Section 326 IPC to one under Section 324 IPC. 16. Regarding the complacency of the third accused, the learned counsel appearing for him has contended that there was no overt act on his part so as to implicate him for the offence taking resort to Section 34 of the IPC. The learned counsel relies on a decision of a Division Bench of this Court in _**Madhu** v._ _**State of Kerala [2017 (5) KHC 83 (DB)]**_ , wherein it was observed thus: “The principle of vicarious liability enshrined by Section 34 IPC extends only to the extent of common intention shared by the parties and as such an apportionment of liability based on the sharing of the common intention to the extent possible is permissible. In the absence of common intention, the parties are liable only in respect of the act done by Crl.As 1169 & 1317/2006 -15- them and the consequences thereof. In other words, the extent of liability is also an issue to be adjudicated based on the sharing of common intention to do a particular act. An act done by one of the accused exceeding the common intention shared by them cannot be brought under Section 34 IPC. The apportionment of liability amongst the co-accused would be permissible with the aid of Section 34 IPC and the liability of an accused under Section 34, therefore, is a matter of inference to be drawn from the facts and circumstances of each case.” 17. Drawing analogy from the facts of the above cited decision, the learned counsel contends that in _**Madhu**_ (supra) the second accused therein had allegedly caught hold of the victim so as to facilitate the attack on the deceased by accused No.1 therein. The weapon used for attack is a wooden stick and there is only a single blow on the head of the victim by the accused No.1. The court had observed that the fact that accused No.1 beat on the head of the victim and caused very serious injuries sufficient to cause death, by itself will not bring accused No.2 with the liability to answer the offence under Section 302 IPC, as there is no evidence to show that it was known to him that accused No.1 is going to inflict an injury on the Crl.As 1169 & 1317/2006 -16- head of the victim. It could be possible for accused No.1 to beat on the deceased by using the stick either on his shoulder or forelimb or lower limb or any other non vital part of the body. Unless there is evidence to show prior concert to do away the deceased by inflicting injury on any vital part of the body like head, it is not possible to fasten the liability under Section 302 against accused No.2, who facilitated the offence by catching hold of the victim and that itself would not show or satisfy the prior concert to do away the deceased or to inflict injury that would result in his death. 18. Even importing the ratio in _**Madhu**_ (supra) to the case in hand, it cannot be profitably used to disculpate the third accused. There is the testimony of PW6 indicating that the accused Nos.3 and 4 had gone to the house of PW1 the previous night and knocked the door of her house with whatever intentions they had. PW1 had also testified that the third accused was inimical Crl.As 1169 & 1317/2006 -17- towards him for the indolence he showed with regard to the case involving the temple priest, despite being a member of the temple committee. The third accused had arrived at the scene of occurrence soon after the arrival of PW1 and PW2, and it was accused Nos.1 and 3 who had wrongfully restrained PW1, and under incitement of the first accused, his sons, accused Nos.2 and 4 attacked PW1 with choppers. The circumstances clearly indicates the complacency of the third accused, and he cannot pretend to be unaware of the possibility of accused Nos.2 and 4 causing injuries to PW1 with the choppers they were carrying. There is no evidence on record to show that the third accused had attempted to prevent accused Nos.2 and 4 from causing the injuries. As I have already held that offence under 324 IPC alone would be attracted in place offence under Section 326, the third accused cannot be exonerated from his involvement in the offence under Section 34 IPC. He is therefore to be held guilty in the same manner as Crl.As 1169 & 1317/2006 -18- the remaining accused. 19. In view of my findings that the conviction under Section 326 IPC is not sustainable and that the accused are to be found guilty of committing offence only under Sections 341 and 324 IPC read with Section 34 IPC, the next question that arises for consideration is the question of sentence. 20. I would like to point out that the occurrence took place 23 years ago, in the year 1996. The appellants have been undergoing the proceedings for such a long period. Having regard to these circumstances, I am satisfied that this is a fit case to which the sentence of imprisonment under Section 324 IPC be confined to the sentence already undergone and that would meet the ends of justice. **==> picture [381 x 10] intentionally omitted <==** apprehended on 17.11.1996 while accused Nos.1 and 3 were apprehended on 23.11.1996 and they were all Crl.As 1169 & 1317/2006 -19- released on bail on 17.12.1996. The sentence of imprisonment is reduced to the imprisonment they have already undergone. The sentence of fine and the default sentence are retained. Subject to these modifications in the sentence, these Criminal Appeals are allowed in part. No costs. ## **Sd/-** ## **ASHOK MENON** **JUDGE** jg