Sajan S/o Ninan Eapen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 8[TH] DAY OF FEBRUARY 2024 / 19TH MAGHA, 1945 CRL.A NO. 1948 OF 2006** **THE JUDGMENT OF THE ADDITIONAL SESSIONS JUDGE FAST TRACK COURT (ADHOC – II), KOTTAYAM IN S.C.NO.140/2006 DATED 15.09.2006** ## **APPELLANT/ACCUSED:** **SAJAN S/O.NINAN EAPEN,PUTHUPARAMBIL HOUSE, NERIYANANI BHAGOM, ELANGULAM KARA, ELANGULAM VILLAGE.** **BY ADVS. PHILIP T.VARGHESE THOMAS T.VARGHESE** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE SUB INSPECTOR OF POLICE, PONKUNNAM.** **SMT.SEENA C.- PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 01.02.2024, THE COURT ON 08.02.2024 DELIVERED THE FOLLOWING:** 2 Crl.A.1948 of 2006 ## **P.G. AJITHKUMAR, J.** ## **----------------------------------------------------------Crl.Appeal No.1948 of 2006 ----------------------------------------------------------Dated this the 8[th] day of February, 2024** ## **J U D G M E N T** The appellant is the accused in Sessions Case No.140 of 2006 before the Additional Sessions Judge (Fast Track Court (Adhoc)- II), Kottayam. He was tried on a charge for the offences punishable under Section 452, 324 and 308 of the Indian Penal Code, 1860(IPC). The appellant was found guilty, convicted and sentenced for the said offences. The appellant assails the said judgment in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973(Code). 2. The case of the prosecution was that at about 8.00 p.m on 11.10.2005, while PW1, Divakaran was sitting on a chair inside the hall of his house viewing television, the appellant entered inside and attacked him using a chopper. On his brandishing the chopper PW1 sustained an injury at his forehead. Immediately, PW1 caught the appellant hold 3 ## Crl.A.1948 of 2006 and his wife and son joined. When they pushed the appellant out the neighbours came and on seeing them the appellant abandoned the chopper and ran away. 3. The prosecution has examined PWs 1 to 8 and marked Exts.P1 to P6 to prove its case. MO1 was identified as well. When questioned under section 313(1)(b) of the Code, the appellant denied all the incriminating circumstances. He further stated that there were disputes between himself and PW1 in regard to putting up of a gate on the pathway. Due to that enmity, while he was returning home on 11.10.2015, he was attacked by PW1 along with his friends. As a result, he sustained injuries on his left eye resulting in partial loss of eyesight. He had to undergo treatment for the said injuries in Paika hospital and before the eye specialist. It was PW1 who used MO1 to attack him. Accordingly he maintained that the case of the prosecution was totally false. Exts.D1 to D3 were marked on the side of the appellant. DW1 was examined also. After considering the aforesaid evidence, the court below held that the prosecution proved beyond doubt the charge levelled against the 4 ## Crl.A.1948 of 2006 appellant. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. PW1 is the injured. PW2 is his wife. PWs 3 and 4 are their neighbours. PW1 deposed in court in detail regarding the incident. His version was that while he was watching the television, sitting on a chair, the appellant came to the hall of his house and brandished MO1 chopper, which hit at his forehead resulting in an injury. He immediately stood up and caught hold of the hand of the appellant. On hearing the sound, his wife and son came and joined him to restrain the appellant from further attack. They could push the appellant out from the house and at that time, the neighbours assembled. The appellant then abandoned the weapon and took on his heels. 6. PW2 stated almost in similar terms regarding the incident. She deposed that while PW1 was sitting on the chair, the appellant came and attacked him using a chopper. She and her son rushed nearby and tried to prevent the appellant. 7. PWs 3 and 4 deposed that while they reached the 5 ## Crl.A.1948 of 2006 place of occurrence a scuffle was going on. PW3 stated that while he reached, PW1, his wife and son were together holding the appellant. PW1 had an injury at his head. What PW4 stated is that on hearing screams from the house of PW1 he rushed to that place and saw the appellant, PW1 and his son in front of the house. The appellant had a chopper with him. PW1 was holding the appellant‘s hand and his wife and son were holding the appellant. It is the version of PW4 that the appellant was yelling that he would kill PW1. He added that on seeing the people thronging in, the appellant got rid of and ran away after throwing away the chopper. 8. PW5 is the doctor who examined PW1 at 8.30 p.m on 11.10.2005. Ext.P2 is the wound certificate. The injury noticed by PW5 was 3.5 cm long oblique lacerated wound over his mid forehead. He opined that such an injury could be caused using MO1, chopper. PW7 was the head constable who recorded the F.I. statement from PW1 which is Ext.P1. He also proved Ext.P4, the body note, where the dressing seen on the forehead of PW1 was noticed. PW8 is the investigating officer. He stated about preparation of the 6 ## Crl.A.1948 of 2006 scene mahazar, Ext.P5 and recovery of MO1 from the compound of the house of PW1. It was he who completed the investigation and filed the final report. The court below after analysing the evidence found that evidence tendered by PWs 1 to 4 could be believed to find that the appellant voluntarily had attacked PW1. 9. The learned counsel for the appellant would submit that the aforementioned finding is perverse for more than one reason. According to the learned counsel, the version in Ext.P1 is in direct conflict with the version of PW1 in court concerning how the appellant was separated from the scuffle. While in Ext.P1 it was stated that with the help of neighbours, he was separated, what PW1 stated in court is that none of the neighbours joined in separating the appellant from the scuffle. Similarly, it is submitted that there is total discrepancy with regard to the description of the place of occurrence. While PW1 stated to PW5, the doctor that he was attacked while he was walking in his courtyard, version of PWs 1 and 2 in court is that the attack was inside the house. 7 ## Crl.A.1948 of 2006 10. Further, it is contended that the appellant sustained serious injuries and had undergone treatment. From Ext.P3, the wound certificate issued by PW5 regarding the examination of the appellant, he sustained injury in an incident that occurred at the same time although the place of occurrence is different. When the prosecution suppressed the said fact, that has the obvious result of creating serious doubt in the case of the prosecution. One more aspect pointed out by the learned counsel for the appellant is that the FIR was not proved and therefore it is not able to ascertain how and when the investigation commenced. ⁴ 11. The learned Public Prosecutor would submit that the discrepancies pointed out by the learned counsel for the appellant are minor in nature if not trivial, and would not have the effect of discrediting veracity of the ocular witnesses. Apart from PW1, PWs 2 to 4 stated about the incident quite cogently. In the chronology of the incidents no serious discrepancies can be noticed in the evidence of those witnesses. When their evidence is evaluated, a consistent case concerning the material particulars can be seen and 8 ## Crl.A.1948 of 2006 that their evidence proved the act of attack of PW1 by the appellant by using MO1. 12. It is further pointed out that when such an incident occurred resulting in serious injuries to PW1 the witnesses would not have been in a position to notice each and every aspect so as to remember and state in court with precision. 13. The submission of the learned counsel for the appellant that the suppression of injuries sustained by the appellant has a necessary effect of discrediting the prosecution case is not able to be accepted, for, the definite version of the appellant, during 313 examination was that he was attacked on his way back to home by PW1 along with his friends. Whereas, in Ext.P3 wound certificate, the reason stated for his injuries is that PW1 and others reached his house and attacked him. Of course, when an accused is not expected to prove his case beyond reasonable doubt, it is sufficient to substantiate it by preponderance of probability. But when Ext.P3, wound certificate regarding his examination stands in direct conflict with what he stated 9 ## Crl.A.1948 of 2006 before the court, the defence set forth by him, cannot be said to have been substantiated even by preponderance of probability. 14. Certainly, the prosecution should have explained the injury sustained by PW1, had he sustained the injuries in the same incident. But the evidence on record is insufficient to prove that the injuries noticed in Ext.P3 were sustained by him in the same incident. PW8, the investigating officer stated that he knew about minor injuries sustained by the appellant. But his complaint in that regard was found to be false. From the evidence on record it is revealed that the injuries sustained by the appellant as noticed in Ext.P3 were not in the same incident. So, it cannot be said that the prosecution suppressed the injuries sustained by the appellant for the purpose of manipulating the prosecution case. Therefore the submission of the learned counsel based on the law laid down in **Raj Kishore Rabidas v. The State [AIR 1969 Calcutta 321]** that cooking up of a story in the F.I.R. and improving the prosecution case while giving evidence is reprehensible. Here, no such manipulation of 10 ## Crl.A.1948 of 2006 evidence is substantiated from the evidence available on record. 15. The learned counsel for the appellant placed reliance on **Asokan v. State of Kerala [2017 (2) KHC 669]** in order to fortify her contention that suppression of injuries sustained by the appellant has the effect of discrediting the prosecution case altogether. As stated, the injury sustained by the appellant was not in the incident in question. That obviates that the prosecution cannot be found at fault for not furnishing evidence regarding the injuries sustained by the appellant. 16. The oral testimony of PW1 and 2 are cogent as to how PW1 sustained injuries. The circumstances pointed out by the learned counsel for the appellant which are not probabilised could not fail their credibility. The medical evidence and the oral testimony of Pws 3 and 4 rendered sufficient support to show that PW1 sustained injuries as stated by him. The evidence sufficiently proved that the appellant voluntarily came to the house of PW1 and assaulted him. Of course, there is a minor discrepancy with 11 ## Crl.A.1948 of 2006 respect to the exact place where PW1 was attacked. What is seen from the evidence is that PW1 was first assaulted inside the house and the scuffle occurred thereafter. PW1, with the help of PW2 and their son pushed the appellant outside the house and it was at that time PW3 and 4 reached there. The said evidence certainly establishes the fact that it was a voluntary attack by the appellant on PW1. 17. As stated, the only injury sustained by PW1 was a lacerated/injury on the forehead having length of 3.5 cm. It is proved that while PW1 was sitting in a chair, the appellant came behind and brandished the chopper. MO1 was identified as the weapon of offence. It is a lethal one. Had the appellant an intention to cause death of PW1 or knowledge that the injury he would cause would likely to cause his death, there was no impediment for him to inflict more serious injuries. From the said circumstances, it cannot be said that the appellant attacked PW1 with an intention or knowledge that the injury could have resulted the death of the person. Therefore the conviction for an offence under Section 308 of the Indian Penal Code is unsustainable. The 12 ## Crl.A.1948 of 2006 offence constituted is one punishable under Section 324 and 452 of the IPC. The conviction is accordingly modified. The learned counsel for the appellant would point out that the appellant is now aged 60 years having a wife and children. He is the sole breadwinner of his family. Considering that along with the period lapsed after the date of occurrence, a lenient view is taken in the matter of sentence. The appellant is sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/- each under Section 324 and 452 of the IPC. The substantive term of sentence shall run concurrently. Set off of the eligible period is allowed under Section 428 of the Code. The appellant shall surrender before the court below for undergoing sentence within one month. **Sd/-** ## **P.G. AJITHKUMAR JUDGE** PV