Muraleedharan Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 18TH DAY OF JULY 2016/27TH ASHADHA, 1938** ## **CRL.A.No. 2383 of 2009 ( )** ## **--------------------------SC.NO. 113/2009 OF ADDL.SESSIONS COURT (ADHOC NO.1), KOTTAYAM** **------------------** ## **APPELLANT/ACCUSED NO.1:** **---------------------------------------------** **MURALEEDHARAN NAIR, S/O. KUTTAPPAN NAIR, RADHALAYATHIL HOUSE, PARIYARAM BHAGOM, KANGAZHA VILLAGE.** **BY ADV.SRI. C.P.UDAYA BHANU** ## **RESPONDENT(S)/COMPLAINANT AND STATE :** **--------------------------------------------------------------------** **1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. STATE HOUSE OFFICER, MANIMALA POLICE STATION,** **KOTTAYAM DISTRICT.** ## ***ADDL.R3 IMPLEADED** - ***R3: VASUDEVAN ACHARI @ E.P.VASU, AGED 62, S/O.PARAMESWARAN ASARI, EDAMANA VADAKETHIL HOUSE, PARIYARAM BHAGOM, KANGAZHA VILLAGE, KADAYANIKKADU.P.O., KOTTAYAM DISTRICT, PIN-686 541.** - ***ADDL.R3 IS IMPLEADED AS PER ORDER DATED 18/07/2016 IN CRL.MA.NO.1913/2016** **R1 & R2 BY PUBLIC PROSECUTOR SMT. MAYA ADDL.R3 BY ADVS. SRI.N.P.PRAJEESH SRI.BIJO THOMAS GEORGE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **B.KEMAL PASHA, J.** ================ Crl.A. No. 2383 of 2009 ======================= Dated this the 18[th] day of July, 2016 ## **JUDGMENT** The appellant is the 1[st] accused in Sessions Case No.113 of 2009 of the Additional Sessions Court (AdhocI), Kottayam, who stands convicted under Sections 324 and 326 IPC, and sentenced to undergo rigorous imprisonment for three years for the offence under Section 326 IPC, and to pay a fine of 5,000/-, in default₹ to undergo simple imprisonment for three months under Section 324 IPC. 2. On 10.04.2008, PW1 along with his wife and two sons, who are PWs.3 and 4, got down from the bus at a place called Kadayanikadu from Kottayam, and they were on their way by walking towards their house. By about 7 p.m., the appellant rushed to them by the auto-rickshaw of the appellant. He stopped the auto-rickshaw and swiftly staged an attack on PW1 with a reaper. On seeing the attack, PW3, who is the elder son of PW1 intervened Crl.A. No. 2383 of 2009 2 for the rescue of his father. Immediately, the appellant severely beat on the head of PW3 and also on his body with the wooden reaper, thereby causing the fracture to his skull and other serious injuries. When PW4, the younger son of PW1 intervened, he was also beaten up. 3. PW1 sustained lacerated wound left side of forehead and contusion left shoulder and right forearm. PW3 sustained haematoma 1.2 c.m., fracture parietal bone and fracture to the sphenoid sinus. There occurred nasal bleeding and orbital edema (left), lacerated wound chin, contusion forehead, both forearms, shoulder and below both shoulder blades. PW4 sustained contusion left side of forehead. All the injured persons were taken to the Taluk Headquarters Hospital, Kanjirappally, from where, PW3 was referred to the Medical College Hospital, Kottayam. From 10.04.2008, he continued treatment as inpatient till 22.04.2008. 4. On the basis of Ext.P1 First Information Statement furnished by PW1, the Manimala Police registered the crime. The same was investigated and Crl.A. No. 2383 of 2009 3 final report, alleging offences punishable under Sections 294(b), 324, 506(ii), 326 and 308 read with Section 34 IPC, was filed. The same was committed to the Court of Session through C.P.No.24 of 2008 by the Judicial First Class Magistrate’s Court-II, Kanjirappally. 5. On the side of the prosecution, PWs.1 to 13 were examined, Exts.P1 to P9 were marked and MO1 and MO2 were identified. Both the accused were examined under Section 313 Cr.P.C. As there were no grounds to acquit the accused under Section 232 Cr.P.C., they were called upon to enter on their defence. DW1 was examined on the side of the accused. The court below, after hearing the arguments of the prosecution and the accused, found the 1[st] accused, who is the appellant herein, guilty of the offences punishable under Sections 326 and 324 IPC, convicted him thereunder and sentenced him as aforesaid. The court below found the 2[nd] accused not guilty of the offences and acquitted him. 6. Heard the learned counsel for the appellant, the learned counsel for PW1 and the learned Public Crl.A. No. 2383 of 2009 4 Prosecutor. 7. The learned counsel for the appellant has argued that the court below has not considered the evidence properly and has not appreciated the evidence brought out by the accused. It is argued that the conviction and sentence passed by the court below on the appellant are liable to be set aside. Alternatively, the learned counsel for the appellant has argued that the sentence imposed by the court below is not proportionate to the gravity of the matter involved and on that ground, the learned counsel for the appellant has sought for the maximum leniency of this Court in the question of sentence for the offence under Section 326 IPC. 8. Per contra, the learned Public Prosecutor has argued that there is sufficient evidence in this matter to enter into the conviction and there is sufficient corroboration of the evidence of PW1 by the evidence of PW2, an independent witness and also PW3 and PW4 injured persons coupled with the contents of Ext.P1 First Information Statement. It has also been pointed out that Crl.A. No. 2383 of 2009 5 the prosecution evidence is fully corroborated by the medical evidence as contained in Exts.P2 to P5 and also the evidence of PWs.5 and 6 Doctors, who attended the injured persons. 9. The learned counsel for the injured persons has pointed out that even though this is a case, wherein, three persons were attacked and series of serious injuries were inflicted on them, the court below has not cared to order sufficient compensation for the victims. 10. The learned counsel for the appellant has taken this Court through the depositions of PWs.1 to 6 and also the contents of Ext.P1. It has clearly come out that all the said witnesses have fully supported the prosecution case. It is true that even though PW3 has stated something with regard to the involvement of the 2[nd] accused, other witnesses have not spoken to anything with regard to his involvement and therefore, the court below has rightly acquitted the 2[nd] accused in the case. 11. PW1 has clearly narrated the incident. PW1 has spoken to with regard to the appearance of PW2. On Crl.A. No. 2383 of 2009 6 hearing the hue and cry, PW2 rushed to the spot, and he could also see the occurrence. The evidence of PW1 clearly narrates the incident as a whole. The said versions of PW1 are clearly supported by the contents of Ext.P1. Further, his versions are fully supported and corroborated by PWs.2 to 4. This Court does not find any contradiction in the evidence of those witnesses. As rightly pointed out by the learned Public Prosecutor, this is a case, wherein, evidence is more than enough to enter into a conviction of the appellant for the offences under Sections 326 and 324 IPC. 12. The injuries sustained to PW1, PW3 and PW4 are clearly revealed and established through Exts.P2 to P4. The period of treatment and the seriousness of the injuries sustained to PW3 has been clearly established by the evidence of PW5, who prepared Ext.P3 wound certificate. The seriousness of the injuries sustained to PW3 and the period of his medical treatment at the Medical College Hospital, Kottayam has been proved by PW6. PW5 has further proved the injuries sustained to Crl.A. No. 2383 of 2009 7 PW1 and PW4. 13. This case has been properly investigated and the final report was filed. It was by appreciating the evidence of PWs.1 to 6, that the court below has chosen to convict the appellant under Sections 326 and 324 IPC. The court below has rightly acquitted the 2[nd] accused for want of evidence. On going through the entire evidence, this Court is satisfied that there is absolutely nothing to interfere with the conviction of the appellant under Sections 326 and 324 IPC. 14. Regarding the sentence also, this Court is of the view that it cannot be said that the sentence imposed on the appellant for the offence under Section 326 IPC is disproportionate with the gravity of the matter. It clearly stands proved that PW3 sustained grievous hurt of a serious nature. In fact, he has marginally escaped through prolonged treatment. At this juncture, the argument forwarded by the learned counsel for the injured persons requires consideration. By putting a person to incarceration for a long period, the injured Crl.A. No. 2383 of 2009 8 persons, who had suffered much, cannot be adequately compensated unless proper provision is made for the same. This is a case, wherein, it seems that the court below has forgotten the principles of victimology. 15. In **Faisal v. State of Kerala** [2013 (4) KLJ 470], it was held by this Court in paragraphs 111 and 117 as follows: “111. When the court has a very limited discretion under Section 357(1) Cr.P.C; it can give compensation only out of the fine if imposed on the offender theoretically, the power of the court to impose a sentence of fine along with the sentence of life imprisonment, cannot be forgotten, even though practical considerations would prevail. Of course, the amount of fine should be determined on the basis of various factors including the nature of the crime, the number of injuries, the paying capacity of the offender etc. Of course, it is true that in awarding compensation the court should not just consider what compensation to be Crl.A. No. 2383 of 2009 9 awarded to the heirs of the deceased and then impose a fine which is higher than the compensation. At the same time, that can also be a criterion along with the other attending circumstances as aforesaid in imposing fine.” “117. Section 357 of the Code is designed simply to ameliorate the stricter requirements laid down in the cases in respect of the burden of proof required before compensation orders are made. The effect of the sub-section is to reduce slightly the obligation required it to be discharged in a civil litigation seeking a decree for damages. This means that the court in imposing fine as part of the sentence, may use its own knowledge to a limited extent to supplement a deficiency in the evidence of the amount of actual loss. The offender should be forced to recompense the victims of his crime. At a more pragmatic level, criminal justice systems rely heavily on victims for information about crimes and about offenders, and for evidence in court. It is only fair that, in return, Crl.A. No. 2383 of 2009 10 the system should ensure that they receive the proper help and support. In cases like the present one, the fine that has to be realised, which has to be defrayed as compensation to the victims, should also have a punitive effect on the offender as well as reparative in relation to the victims. The order to pay compensation out of the fine amounts should be applauded a safe form of reparative justice, or at least as recognition that our system ought to be multifunctional rather than limited to punitive responses.” 16. In order to wipe out the tears of those persons, who had suffered from the hands of the appellant, a provision has to be made for compensating them. Of course, the sufferers have not preferred an appeal. Therefore, this Court cannot order a higher amount of compensation by way of fine without reducing the period of imprisonment imposed by the court below on the appellant for the offence under Section 326 IPC. This Court is of the view that, in the said circumstances, the Crl.A. No. 2383 of 2009 11 sentence of rigorous imprisonment for three years imposed by the court below on the appellant for the offence under Section 326 IPC can be reduced to rigorous imprisonment for one year and he shall be ordered to pay a fine of 1,00,000/- ₹ within nine months from today, in default, to undergo rigorous imprisonment for one more year. Any modification is not required as far as the sentence for the offence under Section 324 IPC, is concerned. In the result, this appeal is allowed in part by maintaining the conviction for the offences under Sections 326 and 324 IPC and by maintaining the sentence under Section 324 IPC, and by modifying the sentence for the offence under Section 326 IPC as follows: “The appellant shall undergo rigorous imprisonment for one year and to pay a fine of 1,00,000/- within nine₹ months from today, in default to undergo rigorous imprisonment for one more year under Section 326 IPC. Both the fine amounts payable for the offences under Crl.A. No. 2383 of 2009 12 Sections 326 IPC as well as 324 IPC, if paid or recovered, shall be given as compensation to PWs.1, 3 and 4 as follows: In case the fine amount is paid or recovered, an amount of 20,000/- shall be paid to PW1, an amount of ₹ ₹ 75,000/- shall be paid to PW3 and an amount of 10,000/-₹ shall be paid to PW4. Whatever be the amount, that can be recovered, the same shall be paid to PWs.1, 3 and 4 in the aforesaid proportion. Sd/- **B.KEMAL PASHA, JUDGE** dsv/stu //TRUE COPY// P.A TO JUDGE.