Meenakshi w/o Pazhaniswamy and Lakshmanan s/o Rangan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946** **CRL.A NO. 27 OF 2013** **AGAINST THE JUDGMENT DATED 14.12.2012 PASSED IN SC NO.76 OF 2010 ON THE FILE OF ADDITIONAL SESSIONS COURT(ADHOCI), PALAKKAD** ## **APPELLANT/ACCUSED NO.1&2:** **1 MEENAKSHI W/O.PAZHANISWAMY, KUNNATH VAYAL,SHOLAYUR,MANNARKKAD,PALAKKAD. 2 LAKSHMANAN S/O.RANGAN,NALLASINGA,SHOLAYUR,MANNARKKAD, PALAKKAD.** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, SHOLAYUR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALAA,ERNKULAM.** ## **SMT.SHEEBA THOMAS – PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.27 of 2013 ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** **Crl.Appeal No.27 of 2013** **----------------------------------------------------------Dated this the 22[nd] day of May, 2024** ## **J U D G M E N T** Accused Nos.1 and 2 in Sessions Case No.76 of 2010 who stand convicted and sentenced as per the judgment dated 14.12.2012 by the Additional Sessions Judge (AdhocI), Palakkad are the appellants. The 1[st] appellant was convicted of the offence under Section 324 of the Indian Penal Code, 1860 (IPC) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3000/-. The 2[nd] appellant was convicted of offences punishable under Section 324 and 326 of the IPC. He is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3000/- under Section 324 and to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- for the offence under Section 326 of the IPC. 2. The appellants were tried on a charge for the offences punishable under Section 308, 324, 326 and 341 3 Crl.Appeal No.27 of 2013 read with 34 of the IPC. The allegations formed the basis for the accusation are the following: There existed a dispute between PW5 and the appellants concerning the usage of a pathway that is situated adjoining the property of the appellants. At about 7.00 p.m. on 02.07.2005, PW5 and his son PW6 walked along that pathway. Getting infuriated on that the 1[st] appellant approached them and attacked PW5 using a chopper. He sustained injuries on various parts of his body due to the slashing by the chopper and also the consequent fall. PW6, intervened and then the 2[nd] appellant, who rushed to the spot carrying a cycle chain, assaulted PW6 using that chain causing him injuries. As a result of his punching on the face, PW6 sustained injuries on the face and fracture to four of his teeth. 3. The prosecution has examined PWs 1 to 12 and proved Exts.P1 to P16 to establish the charge. MOs 1 and 2 were identified as well. When examined under Section 313(1)(b) of the Code, the appellants denied all the incriminating circumstances in the evidence that appeared against them. Besides pleading innocence, the 1[st] appellant stated that it was PWs 5 and 6 who attacked her and the 4 Crl.Appeal No.27 of 2013 2[nd] appellant. She stated that PWs 5 and 6 pelted stones at them causing injuries. The trial court did not accept the said plea of the appellants. It was held that the evidence of PW8 and medical evidence corroborated the version of PWs 5 and 6 on material particulars. However, the trial court found that the evidence was lacking to hold that the appellants attacked PWs 5 and 6 in furtherance of their common intention. Accordingly, each appellant was found guilty of distinct offences and convicted. 4. Heard the learned counsel for the appellants and the learned Public Prosecutor. 5. The incident occurred at the pathway near the house of the appellants. It is said that the pathway leads to the water tank at Sholayur. Immediately after the incident, PWs 5 and 6 were taken to the Government Hospital, Palakkad. PW8 is the wife of PW5 and the mother of PW6. PW8 along with her relatives took PWs 5 and 6 to the hospital. PW1 examined PWs 5 and 6 at that hospital. Exts.P1 and P2 are the wound certificates issued by PW1 in respect of PWs 5 and 6 respectively. PW1 examined both of 5 Crl.Appeal No.27 of 2013 them at about 12.15 a.m. on 03.07.2005. At about 3.00 p.m. on that day PW2, a head constable attached to the Sholayur Police Station reached the hospital and recorded Ext.P3 statement from PW5. Based on the said statement, the crime was registered as per Ext.P9. 6. Besides PWs 5 and 6, PWs 7 and 8 also deposed about the incident. PW10 was also examined as an ocular witness, but he turned hostile to the case of the prosecution. PW7 is a neighbour. As stated, PW8 is the wife of PW5. The versions of PWs 5 and 6 regarding the inception of the incident and also the nature in which the incident occurred are consistent. They were coming back from the nearby junction and while so, the 1[st] appellant picked up a quarrel about their usage of the pathway. Following a melee involving PW5 and the 1[st] appellant, the assault on PW5 occurred. It is their version that the 1[st] appellant went to her house and rushed back with a chopper. She brandished the chopper against his head, but PW5 warded it off. It resulted an injury to his finger. It is the further version of PWs 5 and 6 that when PW5 fell, he was attacked by the 1[st] appellant 6 Crl.Appeal No.27 of 2013 using a chopper resulting in injuries to his leg and other parts of his body. PW6 stated to have intervened and on seeing that the 2[nd] appellant reached the place with a steel chain. He assaulted PW6 using that chain. As a result of a hit with the chain in the face, PW6 sustained injuries including fracture to his teeth. It is his version that he sustained fracture to four of his teeth besides other injuries. 7. PW7 deposed that he heard an altercation from the pathway and, he came to the spot. He is a neighbour. On reaching the spot, he saw the altercation between PW5 and the 1[st] appellant and their scuffling. He, however, denied having seen an attack by any of the appellants on PWs 5 and 6 using weapons. He denied having seen such overt acts or stated in police in that regard. PW8 however deposed in detail regarding the incident. She deposed that only on hearing the altercation, she came to the spot. When she reached, an exchange of words between PW5 and the 1[st] appellant was going on. Immediately, the 1[st] appellant went to her house, fetched a chopper and came back. She, using that chopper, attacked PW5 causing him injuries. She 7 Crl.Appeal No.27 of 2013 categorically states that although the 1[st] attempt to slash at the head by the 1[st] appellant using the chopper was warded off, he sustained injuries to the finger and probably the head by that slash. He fell down. Thereafter also he was attacked by the 1[st] appellant. Regarding the assault of PW6 by the 2[nd] appellant, his version is somewhat in tandem with the version of PWs 5 and 6. 8. From the testimony of those witnesses, immediate registration of the crime and medical evidence, the fact that there occurred an incident wherein PWs 5 and 6 sustained injuries stands proved. The appellants do not dispute also the occurrence of the incident. They contend that the incident had occurred not as alleged by the prosecution. But it was in the nature of a scuffle, and PWs 5 and 6 were the aggressors. The appellants sustained injuries in the incident. PWs 5 and 6 went to the District Hospital, Palakkad avoiding nearby hospitals and created a false story. To fortify those contentions, the learned counsel for the appellants would submit that the case of the prosecution that the 3[rd] accused also joined the appellants to attack PWs 8 Crl.Appeal No.27 of 2013 5 and 6 turned out to be false, the oral testimonies of PWs 5 and 6 contained so many irreconcilable discrepancies, the version in Ext.P3 FI Statement stands apart from the oral evidence and that the medical evidence does not tally the versions of PWs 5 and 6. 9. The further submission of the learned counsel is that when PWs 7 and 10 the independent witnesses failed to support the prosecution and PW8 being the wife of PW5, their evidence is not available in aid of the prosecution, and what remains is that of PWs 5 and 6. When the evidence of PWs 5 and 6 contained so many discrepancies, their evidence is insufficient to prove the charge. It is also submitted that, indisputably, a feud between the injured and the appellants existed, and therefore the possibility of foisting a case against appellants cannot be ruled out. Yet another contention raised by the learned counsel for the appellants is that the charge for causing grievous hurt cannot sustain at all for, the medical evidence does not show that the fracture of teeth of PW6 had happened in the incident in question and the direct evidence is insufficient to 9 Crl.Appeal No.27 of 2013 establish that allegation. Regarding identification of the weapons also, the learned counsel raised a contention that for want of light, none of the witnesses could see and identify the weapon, and therefore their identification of MOs 1 and 2 before the court could not be believed. 10. Although the distance between the place of occurrence and the District Hospital, Palakkad is not known from the evidence on record. It appears that the distance is not short and there were other hospitals in between. But, the contention that such hospitals were avoided to foist a case is not able to be appreciated for, the injuries sustained by PWs 5 and 6 were serious in nature and PW8 would have thought it appropriate to take them to a major hospital. It cannot be said that it was so done with a malafide intention. 11. At about 12.15 a.m. on 03.07.2005 PWs 5 and 6 were examined by PW1. The injuries noted are serious which are as follows: ## PW5: - 1.Incised wound 1x1x1 cm on the medial aspect of the right leg lower 3rd, fresh wound; - 2.lacerated wound on upper lip left side 1x1x1 cm; 10 Crl.Appeal No.27 of 2013 - 3.Lacerated wound 2x1x1 cm on neck left side; - 4.Incised wound on left temporal region of scalp 1x1x1 cm; - 5.Incised fresh wound left thump 2x1x1cm 6. 2 contusions on the chest linear 10x2cm parallel to each other 1cm apart; 7. Contusion 10cm in length with linear width parallel to each other with a distance of 1cm extending from the front of the right shoulder to Obliquely red in colour; 8. contusion circular with diameter of 5cm on the right side of the abdomen; 9. lacerated wound on front of right knee 3x1x1cm; 10.Abrasion right of neck 3x1x1cm; - 11) abrasion left of forearm 2x1x1cm; - 12) abrasion left clavicle 3x1x1 cm; - 13) abrasion right leg 3x1x1cm lower third. ## PW6: - 1) Contusion upper lip right side; - 2) 2 abrasions on right cheek 3x1x1 cm parallel to each other 1 cm upper; - 3) Fracture of upper incisor teeth present. 12. Both PWs 5 and 6 gave the cause of injury that they were assaulted by the appellants at about 7.00 p.m on 02.07.2005 using chopper and cycle chain. That is the first version given by PWs 5 and 6 regarding the assault. The version of PW5 in the FI statement, Ext.P3 also contains the 11 Crl.Appeal No.27 of 2013 material allegations corresponding to the said version. The learned counsel for the appellants pointed out a few inconsistencies between Ext.P3 and the oral evidence of PW5. True, the sequence of the incident narrated in Ext.P3 does not strictly correspond to what is deposed by PW5 before the court. But both tally concerning the material particulars that an altercation occurred following which the 1[st] appellant came with the chopper and attacked him, he sustained cut injuries at his legs besides other injuries, and the 2[nd] appellant attacked PW6 using a cycle chain resulting in injuries at his face and neck. 13. Regarding the involvement of the 3[rd] accused, PWs 5 and 6 made a go by while deposing in court. The specific version in Ext. P3 is that the 3[rd] accused Shaiju also kicked and fisted PWs 5 and 6. They as well as PW8, however, stated in court that the 3[rd] accused did not attack, but he only intervened and pacified the assailants. To that extent, there are inconsistencies in the evidence of PWs 5, 6 and 8. Would those inconsistencies discredit them altogether? 12 Crl.Appeal No.27 of 2013 14. The learned counsel for the appellants submits that on account of the said inconsistency, PWs 5 and 6 whose evidence, which does not get any independent corroboration, can only be rejected. The learned Public Prosecutor would submit that the said contradictions were not proved in accordance with law and the same does not, at any rate, have the effect of discrediting the witnesses. 15. From the narration of the incident by the witnesses, it is quite evident that there occurred an altercation first followed by a scuffle and then a unilateral attack by the appellants using weapons. In that course, many things would have happened. The witnesses might not be in a position to notice and reproduce every overt act before the court. While appreciating the oral evidence, the human probabilities are to be taken into account. 16. The Apex Court in **Brahm Swaroop v. State of U.P., [(2011) 6 SCC 288]** held concerning reliability of injured witnesses as follows: - "28. 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 13 Crl.Appeal No.27 of 2013 he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.” Reiterating the said principle the Apex Court in **Chandrasekar and Another v. State [(2017) 13 SCC 585]** held that criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. 17. The Apex Court in **Balu Sudam Khalde v. State of Maharashtra [AIR 2023 SC 1736]** explained the parameters for appreciating the ocular evidence. Following observations are relevant in this case,- - “25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under: IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit 14 Crl.Appeal No.27 of 2013 rejection of the evidence as a whole. xx xx xx VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.” 18. Viewed the evidence of PWs 5, 6 and 8 in the light of the law laid down in the aforesaid decisions, it cannot be said that the inconsistencies contained in their evidence are irreconcilable. Regarding the material particulars, their evidence is consistent. Following the altercation and a scuffle, the 1st appellant came with a chopper and attacked PW5. It was at that time the 2[nd] appellant reached the place of occurrence with a weapon and attacked PW6. The incident was at about 7.00 p.m. So the availability of light to see the 15 Crl.Appeal No.27 of 2013 weapons clearly and identify them is doubtful. However, when PWs 5 and 6 stated to the doctor at 12.15 a.m on 03.07.2005 itself identifying the weapons and the said version has been reiterated by them as well as PW8 before the court, there cannot be any doubt about the identification of Mos 1 and 2 by them before the court. 19. PW12 is the investigating officer. He deposed before the court that as stated to and pointed out by appellants 1 and 2, MOs 1 and 2 were recovered. MO1 was recovered from the kitchen and MO2 from the cattle shed of their house. PW4 is a witness to the mahazar, Ext.P5 under which MOs 1 and 2 were seized. He deposed in detail regarding the recovery and places from where each of the weapon was recovered. Regarding the evidence of PW4, it is submitted by the learned counsel for the appellants that he being a person residing 3 kms away cannot be a natural witness and hence the recovery cannot be believed. During cross examination, PW4 explained that he happened to be at the place since he had to come there to ensure water supply from the water tank just 50 meters away from the house of 16 Crl.Appeal No.27 of 2013 the appellants. He is the local Panchayat member. He appears to be a natural witness. Of course, he stated that he did not enter the house. In the view of the learned counsel for the appellant, his version that he saw the 1st appellant taking out the chopper for being produced before the police could not be seen by him. Also an inconsistency with respect to the position of kitchen appeared in his evidence; whether on the south or north of the house, is also fatal. But the said inconsistency is only a mistake in memory and cannot have the effect of failing his credibility. From the evidence of PWs 4 and 11 coupled with Ext.P5, it is proved that on the basis of the statements of appellants 1 and 2, respectively, MOs 1 and 2 were recovered. When those weapons were identified by PWs 5, 6 and also PW8 before the court as the weapons of offence that render corroboration to their oral evidence regarding the incident of attack using weapons. 20. PW1 did not state before the court as to whether injury No.3 i.e, fracture of upper incisor teeth of PW6 was a fresh injury or not. He did not rather record that fact in 17 Crl.Appeal No.27 of 2013 Ext.P2 certificate also. But when PW6 categorically deposed before the court that as a result of the hit by the 2nd appellant, he sustained fractures to his teeth and had a corresponding injury on the upper lip, there cannot be a doubt about the cause of that injury. Of course, what could be the nature of the weapon used to inflict that particular injury was not stated to PW1. When PW6 and the other eye witnesses stated in court in detail about that fact, the cause of that injury need not be doubted. 21. How each of the injuries on his body occurred has not been stated by PW5. From the version of PWs 6 or 8 also it is not able to connect each of the injury with the overt acts by the 1[st] appellant, but when the evidence shows that there occurred a scuffle and PW5 fell down following attack using the chopper injuries on various parts of his body as noticed in Ext.P1 are very much possible. Lack of the meticulous version regarding the cause of each of the said injuries cannot, in the circumstances of the case, be a reason to disbelieve him or for that matter the other witnesses. 22. Accordingly, I hold that the evidence tendered by 18 Crl.Appeal No.27 of 2013 the prosecution is sufficient to prove beyond doubt that as a result of the attack by the appellants using weapons PWs 5 and 6 sustained injuries. PW6 had grievous hurt. The attack can be termed only as a voluntary one although it was following an altercation, especially when there is no proof for the appellants’ sustaining any injury. Accordingly, I hold that the findings of the trial court leading to the guilt of the appellants are not liable to be interfered with. 23. While rigorous imprisonment for a period of one year was awarded for the offence under Section 324 of the IPC, rigorous imprisonment for a period of two years was awarded for the offence under Section 326 of the IPC by the trial court. Considering the fact that the parties are neighbours, the 1st appellant is a woman and also that a long period elapsed after the occurrence, I am of the view that the substantive sentence is liable to be modified. Hence, the 1[st] appellant is sentenced to undergo rigorous imprisonment for a period of six months and to pay the same fine and the 2[nd] appellant is sentenced to undergo rigorous imprisonment for a period of six months for the 19 Crl.Appeal No.27 of 2013 offence under Section 324 of the IPC and rigorous imprisonment for a period of one year for the offence under Section 326 of the IPC. Terms of substantive sentence shall run concurrently. Orders of the trial court concerning fine and set off apply. Sd/- **P.G. AJITHKUMAR JUDGE** PV