Rajesh and Rajan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR`** ## **`MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945`** ## **`CRL.A NO. 772 OF 2007`** ## **`AGAINST THE CONVICTION AND SENTENCE PASSED BY THE ADDITIONAL SESSIONS COURT`** ## **`(ADHOC)-II, ERNAKULAM IN SC 612/2005 OF`** ## **`APPELLANTS/ACCUSED:`** ``` 1RAJESH, S/O RAJAN THAIPPARAMBIL HOUSE, NELSON MANDELA ROAD, PALLURUTHY, RAMESWARAM. 2RAJAN, S/O.KESAVAN THAIPPARAMBIL HOUSE, NELSON MANDELA ROAD, PALLURUTHY, RAMESWARAM. BY ADV SRI.S.RAJEEV ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.7 OF 2002 OF THE CUSBA POLICE STATION, KOCHI). ``` ``` ADV.SMT SEENA C -PUBLIC PROSECUTOR ``` ## **`THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** Crl. Appeal No.772 of 2007 2 ## JUDGMENT Dated this the 15[th] day of January, 2024 Appellants stands convicted and sentenced for an offence punishable under Section 324 read with Section 34 of the Indian Penal Code, 1860. They challenge the conviction and sentence in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. 2. The appellants were charged for an offence under Section 324 and 308 read with Section 34 of the IPC. The allegations against them are the following: PWs 1 and 2 are husband and wife. They were the tenants in a building belonging to PW3, Kshemavathy. The building is situated in Nelson Mandela Road, Palluruty. Appellants were residing in the other part of the same building. They were also tenants. At about 10.00 p.m. on 07.01.2002 appellants approached PWs 1 and 2 and demanded to vacate the premises saying that there was a court order against them. That ensued a wordy altercation between himself and PW1. PW2 intervened and she was attacked by 1[st] accused using a Crl. Appeal No.772 of 2007 3 broken bottle. The 1[st] accused stabbed using a broken bottle of the neck of PW1 also. While, PW1 was caught hold of the 1[st] accused, the 2[nd] accused who joined the melee beat with an iron rod PW1 on his head. It was that time, the 1[st] accused stabbed with the broken bottle on the left elbow and belly of PW1. It is alleged that by such acts the appellants did the said acts with the knowledge that by such acts there was a likelihood of causing the death of PWs 1 and 2. 3. Although, the trial was held on a charge for the offence under Section 324 and 308 read with Section 34 of the IPC, the court below found the appellants guilty of the offence under Section 324 read with Section 34 of IPC alone. The evidence of the prosecution comprises oral testimonies of PWs 1 to 8, Exts.P1 to P8 and MOs 1 to 3. After appreciating the evidence, the court below took the view that the evidence was insufficient to find that the appellants did the offending acts with the knowledge that such acts would have resulted the death of the injured. Thereby, the charge for the offence under Section 308 of the IPC was negatived. The conviction and sentence for the offence under Section 324 read with Section 34 of the IPC are now challenged by the appellants in this Crl. Appeal No.772 of 2007 4 appeal. 4. Heard the learned counsel for the appellants and the learned Public Prosecutor. 5. The incident occurred at about 10.00 p.m. on 07.01.2002. PWs 1 and 2 along with their children were residing as tenant in a portion of a building. It was the 1[st] accused, who reached first and indulged into an altercation with PW1. That was regarding vacation of the premises where PW1 was resided. He deposed in detail regarding the incidents following the altercation. His wife tried to pacify and bring him home. It was at that time PW2 was attacked by the 1[st] accused using the broken bottle. PW1 has narrated the whole overtacts resulting in injuries to him and PW2. 6. PW2 also stated in detail regarding the incident. It is her definite version that the appellants came voluntarily to their house and indulged into the altercation. When she intervened, she was attacked by the 1[st] appellant. When PW1 tried to prevent the attack he was also attacked. The 2[nd] appellant attacked PW1 using iron road. Both PWs 1 and 2 were attacked by the 1[st] appellant using the broken glass. Serious injuries were inflicted due to dashing the 2[nd] accused Crl. Appeal No.772 of 2007 5 using the iron road. 7. PWs 3 and 4 are the witnesses cited by the prosecution to depose about the incident. While PW3 stated regarding the incident, PW4 turned hostile to the case of the prosecution. PW3 is the landlady. It is her version that on hearing the sound she reached the place of occurrence and she saw the assault on PW1 and PW2 by the appellants. She deposed more detail regarding the incident took place that resulted injuries to both PWs 1 and 2. The version of PW4 is that the incident had occurred, but it was not a voluntary attack on PW1 and PW2 by the appellants. PW1 was the real aggressor and both sides sustained injuries. 8. After the incident both PWs 1 and 2 were taken in the Government Hospital, Karuvelippady. PW5 examined PWs 1 and 2 at that hospital. Wound certificates prepared by PW5 are Exts.P3 and P4. Ext.P3 relates PW2 and Ext.P4 relates PW1. The injuries noted by PW5 in Exts.P3 and P4 were somewhat serious, particularly, the lacerated wound on the thumb of PW2 which rendered movement of the thumb restricted. In both Exts.P3 and P4 the history and alleged cause of injuries were stated, which is that assault using a broken bottle by Rajesh Crl. Appeal No.772 of 2007 6 and also attacked using an iron road by Rajan. 9. While undergoing treatment, PW7 reached the hospital and recorded Ext.P1 FI statement at 10.00 a.m. on 08.01.2002. Based on Ext.P1, the crime was registered and the investigation ensued. PW8 is the Investigating Officer. He has effected recovery of MOs 2 and 3. MO3 are the broken pieces recovered from the place of occurrence as per Ext.P5, scene mahazar. He deposed in court that he had arrested the 1[st] accused on 09.01.2002 and based on Ext.P6(a) disclosure statement of the 1[st] appellant, he recovered MO2 iron road under Ext.P6. PWs 1 and 2 identified the weapons of the offence before the court. 10. The learned counsel for the appellants would submit that PW3 was trying to get the appellants evicted from his building and in that view of the matter, he was interested in deposing against the appellants, and therefore, evidence of PW3 cannot be believed. PW4 deposed affirming the defence case that it was PW1 who was the aggressor and that the appellants did not perpetuate any voluntary attack. Pointing out those aspects, the learned counsel would submit that the evidence of PWs 1 and 2 who are the injured and obviously the Crl. Appeal No.772 of 2007 7 interested witnesses cannot be based on to enter a conviction. It is submitted that there is practically no evidence justifying the conviction of the appellants even for the offence under Section 324 of the IPC. 11. The learned counsel further would submit that neither MO2 nor MO3 was examined by an expert to ascertain whether those were the weapons used to inflict injuries by locating blood stains. When the evidence of PWs 1 and 2 is to the effect that following the attack blood gushed out, the weapons necessarily should have been stained with blood. Moreover, the blood should have been spilled on the floor but nothing regarding that has been mentioned in the scene mahazar, Ext.P5. The said aspects create doubt about the prosecution case and the process of investigation. In the above regard, the learned counsel placed reliance on the decision in Sujatha v. State of Kerala [2018 (4) KLJ 294] , wherein it was held that when the weapon of offence is not tested to ascertain the presence of blood particularly of the injured, that may go against the case of the prosecution and shall have the effect of discarding the prosecution evidence. 12. As stated, PWs 1 and 2 who are husband and wife Crl. Appeal No.772 of 2007 8 and the victims of offence deposed in court in detail regarding the attack perpetrated on them while they along with their children were sitting peacefully in their house. The 1[st] appellant came there and picked up a quarrel. The submission of the learned counsel that it was PW1 who initiated the altercation and he was the aggressor cannot be accepted in the above circumstances. The version of PW4 in that regard cannot be given any importance, he being a person who contradicted his previous statements and stated in court a different story. He is not a credible witness at all. PW3, on the other hand, stated that when she reached the place of occurrence on hearing the exchange of words, happened to see the incident. She is a natural witness. Hence, I am of the view that there is no reason to discard the evidence of PW3. Both appellants and the injured are his tenants and no reason could be seen for her to favour the injured. Therefore, the evidence of PW3 renders sufficient support to the oral testimonies of PWs 1 and 2. 13. Immediately after the incident, both PWs 1 and 2 were taken to the hospital. At about 10.30. p.m. they were examined by PW5. The cause of injury recorded by PW5 in Exts.P3 and P4 soon after the incident indicate the involvement Crl. Appeal No.772 of 2007 9 of both the appellants. The said statement, certainly can be used to corroborate the oral testimonies of PWs 1 and 2 in the light of the provisions of Section 157 of the Evidence Act. Similar is Ext.P1. On the next day morning, statement of PW1 was recorded by PW7 and the crime was registered. The narration about the incident in Ext.P1 is in tandem to the oral testimonies of PWs 1 and 2. Therefore, the version of Ext.P1 is also available to corroborate the oral evidence of PW1 before the court. In the nature of the evidence adverted to above, I am of the view that there is no reason to term the evidence of PWs 1 and 2 as unreliable. 14. MO3, broken bottle pieces were recovered from the place of occurrence and MO2 iron road was recovered on the basis of the disclosure statement of the 1[st] appellant. Ext.P6(a) is the said statement. The oral testimony of PW8 regarding the recovery he has effected is cogent. When the recovery of MO2 was effected based on the statement of the 1[st] appellant while in custody of PW8, the Investigating Officer, it is relevant under Section 27 of the Evidence Act. MO2 was identified by PWs 1 and 2. Therefore, it is proved that MOs 2 and 3 were used by the appellants to attack PWs 1 and 2. Crl. Appeal No.772 of 2007 10 15. Of course, MOs 2 and 3 were not scientifically examined in order to ascertain the presence of blood stain. In the cases where, the evidence regarding recovery and identification of the weapon by the witnesses is not cogent and not fully reliable, certainly, the scientific evidence regarding the presence of blood in the weapons of offence including ascertainment of the blood groups is helpful to establish the case of the prosecution. It was not held in Sujatha (supra) that it is an invariable rule that in every case of assault using a weapon, the weapon should be examined for the purpose of ascertaining blood stains. Lack of such an examination shall not have the effect of discarding the prosecution evidence altogether in every case. In this case, PWs 1 and 2 without leaving any doubt identified the weapons of offence before the court. There is no doubt regarding the evidence of recovery of MO2. MO3, broken glass pieces were collected by the Investigating Officer from the place of occurrence itself. In the said circumstances, non examination of Mos 1 and 2 by a scientific expert in order to verify the presence of blood has no impact in this case. 16. In that view of what are stated above, I am of the Crl. Appeal No.772 of 2007 11 view that the court below properly appreciated the evidence and reached the correct finding that the appellants attacked PWs 1 and 2 and inflicted them injuries. The findings of the court below in that regard are not liable to be interfered with. In the said circumstances, the conviction of the appellants for the offence under Section 324 read with Section 34 of the IPC is confirmed. 17. The appellants were sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.3,000/- each. 18. The learned counsel for the appellants would submit that the 1[st] appellant is aged 47 years and the 2[nd] appellant is aged 73 years now. Having gone through the ordeal of such a prolong trial and the delay occurred in the disposal of the appeal, the appellants are entitled to get a lenient view in the matter of sentence. The learned counsel accordingly submitted that substantive sentence is liable to be restricted to the period during which they were in custody. The learned Public Prosecutor strongly opposes the said submission. 19. The appellants are the son and father. There was no justification for the appellants entering the dwelling place of Crl. Appeal No.772 of 2007 12 PWs 1 and 2, who were residing along with their children and inflicting injuries. Considering the age, the 2[nd] appellant deserves to have a more lenient view, whereas the other does not. In the circumstances, the sentence imposed on the appellants is modified as follows: The 1[st] appellant Rajesh, he sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/-. The 2[nd] appellant is sentenced to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.10,000/-. In default of payment of fine, each of the appellants has to undergo simple imprisonment for a further period of one month. In the event of realization of fine, the same shall be paid to PWs 1 and 2 as compensation under Section 357(1)(B) of the Code. Set off of the period of detention entitled by each of the appellants is allowed. Sd/P.G.AJITHKUMAR JUDGE SMF