Sajikumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY, THE 22ND DAY OF JUNE 2012/1ST ASHADHA 1934 CRL.A.No. 471 of 2009 ( ) ------------------------SC.996/2003 of ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK COURT-I), TRIVANDRUM APPELLANT/ACCUSED:: ---------------------------------- SAJIKUMAR HOUSE NO. KP/VIII/497, CHUDUKANDAMVILA, BACK SIDE OF KALLIYOOR PANCHAYAT OFFICE, KALLIYOOR VILLAGE THIRUVANANTHAPURAM DISTRICT. BY ADVS.SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN ## RESPONDENT/RESPONDENT:: ------------------------------------------- STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ.** ------------------------------------------------------------------Criminal Appeal No.471 of 2009 ------------------------------------------------------------------Dated this the 22[nd] day of June 2012 ## Judgment ## **Sasidharan Nambiar, J.** The appellant was convicted and sentenced to imprisonment for life and a fine of Rs.25,000/- and in default, simple imprisonment for a period of one year for the offence under Section 302 of the Indian Penal Code for causing the death of Anilkumar, the brother of PW1 Saji and simple imprisonment for four years and a fine of Rs.10,000/- and in default, simple imprisonment for six months for the offence under Section 307 of the Indian Penal Code for inflicting injury on PW2 Vijayan with the intention to cause his death. The appeal is filed, challenging the conviction and sentence in SC No.996/03 of the Additional Sessions Court, Fast Track Court No.I, Thiruvananthapuram. Cr.A.No.471/09 2 2. The prosecution case, in short, is as follows : On 20.08.2002, the deceased Anilkumar, PW2 Vijayan and PW4 Praveen, along with the appellant, had gone to a bar at Balaramapuram at about 7 pm., to consume liquor. After consuming liquor, they returned in an autorickshaw. On reaching Kalliyoor Junction, PW4 and Suresh got down. As on the way, the appellant disclosed that it was he, who had let loose the air from the tyre of the car being driven by the deceased on an earlier occasion, there was a scuffle in between them. At the intervention of PWs 2, 4 and 5, the appellant left the place, holding a threat against the deceased. Later, by about 8.15 pm, PWs 3 and 4 were standing in front of their respective houses, which are nearby and adjacent to the road, which divides into two pathways into the four cent colony where PW2, the Cr.A.No.471/09 3 appellant and the deceased are staying. While PW2, along with the deceased came along that way and proceeded to their houses, the appellant came from behind and with MO1 knife, inflicted a stab injury on the backside of the right shoulder of PW2, who was walking behind the deceased. On hearing the cry of PW2, the deceased, who was walking in front, looked back. Then the appellant stabbed on his stomach, resulting the omentum laying outside and ran away from the place with the weapon. PW1, who was viewing television from the house of Rajan, rushed to the spot and found the two injured as well as the appellant. While the appellant was running from the scene, PW7, who was proceeding towards his house, after closing his shop, found the appellant on the way. The injured PW2 and the deceased were taken in an autorickshaw driven by PW6 Madhu upto Pravachambalam and from there, 4 Cr.A.No.471/09 they proceeded in the taxi car driven by PW8 Shibu. The injured were first taken to P.R.S. Hospital, Thiruvananthapuram. But, as there was no facility to treat such patients therein, they were advised to take the injured to Medical College Hospital. So, PW2 and the injured Anilkumar were taken to Medical College Hospital from where PW18 Dr.Sunilkumar examined them and prepared Exts.P10 and P11 wound certificates and admitted as inpatients. Anilkumar was immediately removed to the theatre for surgery and PW2, thereafter. Anilkumar succumbed to the injuries on the next day at 3.55 pm. while on treatment. PW21, the Sub Inspector of Police, on receipt of Ext.P3 intimation from the Medical College Hospital, prepared Ext.P14 F.I.R. and registered the crime for the offence under Section 302 of the Indian Penal Code. PW22 took over the investigation. He submitted a report, Cr.A.No.471/09 5 incorporating the offence under Section 307 of the Indian Penal Code also and the details of the appellant. PW22 prepared Ext.P2 inquest report and got the autopsy conducted by PW19 Dr.Rema, who prepared Ext.P12 postmortem certificate. He arrested appellant on 23.8.2002 at 3 pm. On questioning the appellant, on the information furnished by him, MO1 knife was seized under Ext.P7 recovery mahazar in the presence of PWs 14 and 15. On the information furnished by the appellant, MO6 shirt and MO7 dothi of the appellant were recovered under Ext.P8 recovery mahazar in the presence of PW16. The material objects were sent for chemical examination and Ext.P34 report was obtained from the Forensic Science Laboratory, Thiruvananthapuram. 3. After completing the investigation, charge for the offences under Sections 307 and 302 of Indian Cr.A.No.471/09 6 Penal Code was laid before the learned Magistrate, who committed the case to Sessions Court. The learned Sessions Judge made over the case to the Additional Sessions Court. When charge for the offences under Sections 302 and 307 of the Indian Penal Code was framed and read over to the appellant, he pleaded not guilty. The prosecution examined 22 witnesses and marked 34 exhibits and identified seven material objects. At the time of cross examination of the prosecution witnesses, Exts.D1 to D3 statements of PWs 2, 3 and 7 recorded under Section 161 of the Code of Criminal procedure were also marked. After questioning the appellant under Section 313 of the Code of Criminal Procedure, when he was called upon to enter on his defence and adduce evidence, the appellant got marked Exts.D4 and D5, and DW1 was examined. The learned Sessions Judge, on the Cr.A.No.471/09 7 evidence, found the appellant guilty and he was convicted and sentenced as stated earlier. 4. The learned counsel for the appellant vehemently argued that the learned Sessions Judge did not properly appreciate the evidence. It was argued that though PWs 1 to 4 were examined as eye witnesses, they are all interested witnesses and are proved to be not deposing the truth and on a careful scrutiny of their evidence, their version cannot be believed and therefore, the conviction, based on their evidence is unsustainable. The learned counsel also argued that PW1 is not an eye witness at all and even according to him, he was viewing the television from the house of Rajan and if at all he could be aware of the incident only after hearing the cry, which could only be after the injuries were inflicted on PW2 and deceased Anilkumar and therefore, the evidence of PW1 that he witnessed 8 Cr.A.No.471/09 the incident and also his version on the overt acts are to be disbelieved. It was pointed out that he is the brother of the deceased and a close relative of PWs 2 to 4. It was also argued that the evidence of PW2 should not have been believed as he is not a trustworthy witness. It was pointed out that even though PW2 was convicted along with PW1, in CC No.846/1999 by the Judicial First Class Magistrate-III, Neyyattinkara evidenced by Ext.D4 judgment and he had filed an appeal, evidenced by Ext.D5 appeal memorandum, before the Sessions Court, Thiruvananthapuram, he denied the said fact. The learned counsel argued that in such circumstances, when PW2 is proved to be a person, who is having no regard for truth, his evidence cannot be believed. It was also argued that though from the box, PW2 deposed that PW4 was with him when he had gone to the shop 9 Cr.A.No.471/09 of the appellant to take him to the liquor shop, his statement before the Investigating Officer, evidenced by Ext.D1 portion of the statement recorded under Section 161 of the Code of Criminal Procedure shows that PW4 was with the appellant and therefore, what was disclosed by PW2 is not the case stated by him earlier to the police and on that ground also, he cannot be believed. The learned counsel also argued that PW2 denied the fact that he was intoxicated, when PW3 admitted that PW2 was intoxicated. For these reasons, the learned counsel would argue that the evidence of PW2 is to be discarded. The learned counsel also argued that the evidence of PWs 3 and 4 that they were standing on the side of the road and witnessed the incident, contradicts the evidence of PW2 and mutually contradicted their evidence and hence, they cannot be believed. It was also argued that when PW1 claimed Cr.A.No.471/09 10 that he came to the scene by hearing the cry and witnessed the incident, according to PW3, he went to the house of Rajan and fetched him to the spot and in such circumstances, it is most unsafe to believe the evidence of PWs 3 and 4. The learned counsel also argued that if the version of the eye witnesses are disbelieved, there is no legal evidence to connect the appellant with the incident. It was pointed out that the deceased and PW2 sustained injuries, when there was a fight in between them and to escape from the criminal liability, PW2 is falsely alleging that appellant inflicted the injury on him and PWs 1, 3 and 4 are deposing in his favour. It was also argued that though Suresh was cited as a witness and even though PW1 deposed that he was also present at the scene of occurrence, he was not examined and according to the prosecution, the first series of the act occurred at Kalliyoor Junction which Cr.A.No.471/09 11 was witnessed by several persons and when PWs 1 to 4 are all interested persons, independent witnesses were not examined. Relying on the decisions of the Apex Court in **State of U.P. v. Bhagwant** (2003) 10 SCC 74), **Brijpal Singh v. State of M.P** .(2003) 11 SCC 219), **Arjun Marik v. State of Bihar** (1994 Supplement (2) SCC 372) and **Sambhaji Hindurao Deshmukh v. State of Maharashtra** (2008) 11 SCC 186), it was argued that as the prosecution witnesses are interested witnesses, for the failure to examine independent witnesses, the prosecution case has to be thrown out. The learned counsel then argued that Exts.P10 and P11 wound certificates show that the alleged cause of injury was not recorded along with the remaining parts of the wound certificate and though PW18 deposed that those entries were also written by him, he admitted that the said entries are written with a pen and therefore, it is Cr.A.No.471/09 12 clear that it was subsequently inserted and so, based on the alleged cause of injury recorded in Exts.P10 and P11, the appellant cannot be found guilty. The learned counsel also argued that MO1 knife was allegedly recovered under Ext.P7 recovery mahazar, based on the information furnished by the appellant, PW14 and 15, the witnesses to Ext.P7 turned hostile and did not depose that they witnessed the recovery, as alleged by the prosecution and therefore, there is no evidence to prove that MO1 was recovered on the information furnished by the appellant. It was also pointed out that recovery of MO1 was made from a public place where everybody has access and could see the weapon and therefore, it cannot be said that MO1 weapon was recovered on the information furnished by the appellant. The learned counsel then argued that even though Ext.P5 report shows that MO1 knife as well as MO6 Cr.A.No.471/09 13 shirt of the appellant, contained human blood, there is no evidence to prove that it does not show the Rh factor of the blood and therefore, even if the recovery is relied on, it is insufficient to prove that the appellant committed the offences. The learned counsel finally argued that even though the incident occurred at 8.15 pm., PW2 and the injured Anilkumar were examined by the doctor on that night itself at 9.30 pm and PWs 1 and 3 admitted that they had gone to the Medical College Hospital and Nemom Police Station is on the way and still, they did not furnish the information to the police and Ext.P14 F.I.R. was registered only on 21.08.2002 at 8 pm and there is no explanation for the delay and hence it is clear that the case was subsequently foisted against the appellant. The learned counsel also argued that the evidence establish that PW2 and the deceased were all involved in several criminal cases and in such Cr.A.No.471/09 14 circumstances, as PW2 sustained injuries from the hands of the deceased and the deceased sustained injuries from the hands of PW2 and that could only be the reason why they did not report the matter to the police and after the death of Anilkumar in order to save PW2 from the liability, the case is foisted against the appellant. The learned counsel also argued that though MO1 was recovered, its finger prints were not collected to compare it with the finger prints of the appellant, to prove that he used that weapon and in such circumstances, appellant is to be granted at least the benefit of doubt. 5. The learned Public Prosecutor pointed out that even though PWs 1 and 4 were cross examined, nothing was brought out to show that they have falsely implicated the appellant or to disbelieve their evidence, apart from minor contradictions, which are Cr.A.No.471/09 15 inconsequential with regard to their reliability and the learned Sessions Judge rightly believed their evidence. The learned Public Prosecutor also argued that there is no reason to disbelieve the evidence of PW18 or the entries in Exts.P10 and P11 which establish that when PW2 and the deceased were taken to the Medical College Hospital and examined by the doctor, within hours of sustaining the injury, it was disclosed to the doctor that the injuries were inflicted by the appellant and that fortifies the evidence of PW2 as to how he and the deceased sustained injuries. The learned Public Prosecutor also argued that recovery of MO1 knife, which is proved to be the weapon used for inflicting the injuries on the information furnished by the appellant, which contained traces of blood of the same blood group of PW2 and the deceased, proves that the injuries were inflicted by the appellant and in such Cr.A.No.471/09 16 circumstances, the conviction is perfectly correct. 6. The fact that deceased Anilkumar and PW2 sustained injuries on the night of 20.08.2002 and were examined by PW18, the doctor, who noted the injuries in Exts.P10 and P11 wound certificates, is not disputed. Evidence of PW19, the Assistant Professor of Forensic Medicines, Medical College, Thiruvananthapuram with Ext.P12 postmortem certificate conclusively prove that the death of Anilkumar was caused by the penetrating injury on the abdomen and that injury is sufficient in the ordinary course of nature, to cause death. This fact is also not disputed. The question is how they sustained the injuries. 7. PW2 is the injured witness. His presence at the time when the deceased also sustained injury, cannot be disputed as he also sustained injury. The appellant has also no case that PW2 and the deceased Cr.A.No.471/09 17 sustained injuries at two different places or time. PW2 was examined by PW18 from the Casualty of Medical College and he prepared Ext.P11 wound certificate at 9.30 pm, within one our of the incident. The evidence of PW6, the autorickshaw driver and PW8, the taxi driver, which were not challenged on that aspect, establish that PW2 and the deceased, who sustained injuries were first taken from Four Cent Colony in an autorickshaw upto Pravachambalam and thereafter, in a taxi car to the Medical College Hospital. The very fact that PW2 disclosed to PW18, the doctor that he sustained injury from the hands of the appellant, corroborates his evidence from the box. True, it depends upon the acceptability of the challenge raised against the entries in Exts.P10 and P11, by the learned counsel appearing for the appellant. PW18 deposed that the entries in Exts.P10 and P11 including the details of the alleged Cr.A.No.471/09 18 cause of the injuries are in his handwriting and were recorded by him as disclosed by the injured. Though PW18 deposed that Anilkumar was under a shock, his evidence establish that Anilkumar was in a position to disclose how he sustained the injuries and he recorded the alleged cause in Ext.P10 as disclosed by Anilkumar. Though it was suggested to PW18 that the entries regarding the alleged cause of the history of assault seen in Exts.P10 and P11 were written in another handwriting, PW18 denied it. The learned counsel vehemently argued that, that evidence of PW18 cannot be believed as the entries are in different handwriting. On perusing Exts.P10 and P11, we cannot agree with the said submission. We have no hesitation to hold that the entries in Exts.P10 and P11 are that of PW18 and were recorded immediately after the examination of the injured and were not subsequently inserted, as Cr.A.No.471/09 19 canvassed by the learned counsel appearing for the appellant. The evidence of PW18 with Exts.P10 and P11 establish that within one hour of sustaining the injuries, the injured disclosed to the doctor that they sustained the injuries when they were stabbed by the appellant. 8. It is not the law that evidence of a witness who is related to the deceased or the injured is not to be accepted or is to be viewed with suspicion. Mere relationship with the witness is not the criterion to accept or reject the evidence of a witness. What is laid down in **Arjun Marik** 's case (supra) is only that when material witnesses are all relatives of the deceased, their evidence is to be scrutinised with great care and caution. It is only as a rule of caution and not a rule. In **Sambhaji Hindurao Deshmukh'** s case (supra), relied on by the learned counsel, having found on the facts Cr.A.No.471/09 20 that though evidence establish presence of a witness, he was not examined. But, that is not the case herein. In **Mohinder Singh** 's case (supra), it was held that when the accused and the complainant are close relatives, there was no chance or reason to replace the assailant by leaving the real culprit. In **Bhagawant** 's case (supra), relied on by the appellant, having satisfied that the witnesses examined are partisan witnesses, non examination of independent witnesses present was highlighted. But, that does not mean that if the incident occurred in the pesence of the close relatives of the injured and no other person could have the reasonable opportunity to witnes it, his evidence on a careful analysis is found to be credible and trustworthy, it is to be accepted and could be the basis for conviction, even if not corroborated by any other witness. The evidence in this case establish that apart from the witnesses Cr.A.No.471/09 21 examined, no other person had witnessed the incident. Though it was argued that as evidence show that the incident occurred at Kalliyoor Junction and it was witnessed by several persons, the incident whereunder the deceased and PW2 sustained injuries occurred not at Kalliyoor Junction, but near the Four Cent colony. 9. Though the learned counsel argued that being an interested witness, the evidence of PW2 cannot be believed, on scanning his evidence, we find that he is a trustworthy witness. True, PW2 tried not to disclose the fact that he was an accused in a criminal case before the Judicial First Class Magistrate's Court, Neyyattinkara and the fact that he was convicted therein. Exts.D4 and D5 establish that he was convicted along with PW1 and an appeal is pending, challenging the conviction. The fact that PW2 tried to suppress this fact, is not a valid reason to disbelieve his evidence as 22 Cr.A.No.471/09 to how he and Anilkumar sustained injuries, if it is otherwise trustworthy and credible. We find that the evidence of PW2 on material particulars, were not challenged. The evidence of PW2 that he, along with the deceased, PW4, Suresh and the appellant had gone from Kalliyoor Junction to a bar at Balaramapuram and they consumed liquor and returned in an autorickshaw and on the way, there ensued a quarrel in the autorickshaw between the deceased and the appellant due to the disclosure made by the appellant about an earlier incident whereby, the air of the tyre of the car driven by the deceased was let out by the appellant, and they got down at Kalliyoor Junction, were not seen challenged. The evidence of PW2 on that aspect is fully corroborated by the evidence of PW4. The appellant, at the time of cross examination of PW2 or PW4, had no case that he did not accompany them to the bar at Cr.A.No.471/09 23 Balaramapuram or did not consume liquor from the bar or did not return with them to Kalliyoor Junction or that no quarrel took place in between them. On the other hand, what was suggested even to PW4 was that there was a scuffle between the deceased and PW2 and others intervened in the scuffle and in that incident, PW2 and the deceased sustained injuries. If that be so, the injuries must have been sustained at Kalliyoor Junction and not at the scene of occurrence at Chudukandamvila, leading to the colony. In the light of the evidence of PWs 1, 3 and 4 as well as the evidence of PW6, the autorickshaw driver that the injured were taken from Chudukandamvila, we have no hesitation to disbelieve the case of the appellant that the incident did not take place at Chudukandamvilam, but at Kalliyoor Junction. When properly appreciated, it is absolutely clear that the evidence of PW2 as to how he Cr.A.No.471/09 24 sustained the injuries and how the deceased Anilkumar sustained injury is completely trustworthy. His evidence establish that while PW2 along with the deceased was walking towards their houses, which are situated towards the south of the house of Rajan and they reached near to the house of Rajan, covering the house of PWs 3 and 4, the appellant came from behind and using MO1, inflicted an injury on the back of the right shoulder of PW2, who was walking behind the deceased. Appellant, thereafter, inflicted an injury on the abdomen of the deceased and left the scene with MO1 weapon. 10. Though PW1 claimed that he had witnessed the overt acts committed by the appellant and his evidence was relied on by the learned Sessions Judge, we find it difficult to believe his evidence to that extent. According to PW1, he was viewing television Cr.A.No.471/09 25 from the house of Rajan. The evidence of PW5, who is a witness to Ext.P1 scene mahazar and who is an inmate of the house of Rajan also establish that PW1 was there on that night, viewing television. If PW1 was viewing the television, in the ordinary course, he will get an opportunity to witness the incident that occurred on the road and if that be so, in the ordinary course, PW1 cannot witness the incident. At best, the attention of PW1 could have been drawn to the scene only on hearing the cry as the evidence of PW2 establish that on sustaining the injury, he cried aloud and on sustaining the injury, the deceased also cried aloud. If that be so, PW1 could have reached the place or witnessed the incident only subsequent to PW2 and the deceased sustaining the injuries. The evidence of PW3 corroborates that finding, as according to PW3, he had gone to the house of Rajan and called PW1, who Cr.A.No.471/09 26 reached the scene. Therefore, it is unsafe to believe the evidence of PW1 that he witnessed the appellant inflicting injuries on the deceased as well as PW2. But, in the nature of the evidence, we find no reason to disbelieve his evidence that he had been there when PW2 and the deceased sustained the injuries and if that be so, he had sufficient opportunity to see the accused at the scene of occurrence. 11. The evidence of PWs 3 and 4 is that they were standing in front of their houses, facing the road leading to the colony, which is in continuation of the tar road, which comes from Kalliyoor Junction and ends to the east of the houses of PWs 3 and 4. Their evidence show that PW2, along with the deceased were found walking from the east towards the west and then towards south, leading to their houses while they were standing there. Though PWs 3 and 4 deposed that they 27 Cr.A.No.471/09 had seen the incident and they witnessed the appellant inflicting the injuries on PW2 and the deceased, on proper appreciation of the evidence, it is clear that they had also no opportunity to witness the actual overt acts as they could reach the place only after PW2 and the deceased sustained injuries and cried. But, we do not find any reason to disbelieve the evidence of PWs 3 and 4 that they saw the injured PW2 and the deceased and the appellant standing holding MO1 weapon. Therefore, the evidence of PWs 1 to 4 clearly establish that PW2, the injured and Anilkumar, the deceased sustained injuries from the hands of the appellant with MO1 knife. The evidence of PW7, who was returning along the road, after crossing the bus stop on that night establish that the appellant was found running along the road after the incident. Cr.A.No.471/09 28 12. Added to this, the recovery of MO1 knife under Ext.P7 recovery mahazar further establish that the injuries were inflicted by the appellant. The evidence of PW22 with Ext.P30 certificate establish that the blood group of PW2 is B Positive. Similarly, the evidence of PW19 with Ext.P12 establish that the blood group of deceased Anilkumar was also B positive. MO1 was examined in the Forensic Science Laboratory. Ext.P5 report establishes that when MO1 was examined at the laboratory, it contained traces of human blood and the blood group was B, though the Rh factor was not clear. It establishes that MO1 weapon contained B group blood, which is the same blood group of PW2 and the deceased. Though the learned counsel argued that as MO1 was recovered from a public place, it cannot be taken as a recovery under Section 27 of the Indian Evidence Act, it is clear from Ext.P7 recovery mahazar 29 Cr.A.No.471/09 as well as the evidence of PW22 that MO1 knife was found hidden among the bushes, which could not be seen by others and its concealed place was within the exclusive knowledge of the appellant and PW22 could recover the same only on the information furnished by the appellant. In such circumstances, the recovery of MO1 also definitely connects the appellant with the injuries sustained by PW2 and the deceased. Added to this, the evidence of PW22 with Ext.P8 mahazar also shows that MO6 and MO7 dresses of the appellant were recovered from the house of his brother on the information furnished by the appellant. Though PW16 turned hostile, we do not find any reason to disbelieve the evidence of PW22 on that ground, especially when the recovery mahazar, even according to PW16, was prepared at that place from where it was recovered, though PW16 deposed that he did not see the appellant Cr.A.No.471/09 30 producing the dresses. Ext.P5 report of the Forensic Science Laboratory establishes that MO5 shirt of the appellant contained human blood which is proved to be the blood group of the deceased as well as the injured. In the light of the evidence, we find no reason to grant the appellant the benefit of doubt as claimed by the learned counsel for the appellant. The evidence conclusively establish that it was the appellant who inflicted injuries on the abdomen of the deceased. The evidence of PW19 with Ext.P12 establish that the said injury in the abdomen caused his death and that injury is sufficient in the ordinary course of nature, to cause death. In the light of the description of injury seen in Ext.P12 postmortem certificate and with the evidence of PW19, we have no hesitation to hold that the said injury is sufficient in the ordinary course of nature, to cause death. From the evidence, it is also clear that the Cr.A.No.471/09 31 appellant inflicted the said injury on deceased Anilkumar with the intention to cause that particular injury and it was not inflicted accidentally. In such circumstances, even if that injury was not inflicted with the intention to cause death, when the evidence establish that, the particular injury was intended to be inflicted and that injury, in the ordinary course of nature, is sufficient to cause death, under clause thirdly of Section 300, the offence committed is under Section 300 of the Indian Penal Code. As none of the exceptions to Section 300 of the Indian Penal Code is attracted, the proved offence is punishable under Section 302 of the Indian Penal Code. In such circumstances, the conviction of the appellant under Section 302 of Indian Penal Code can only be confirmed. Cr.A.No.471/09 32 13. The evidence of PW18 with the nature of the injury seen in Ext.P11 wound certificate establish that, that injury was inflicted on the back of the right shoulder of PW2. From the nature of the injury and the evidence, it cannot be said that appellant had an intention to cause the death of PW2 by inflicting that particular injury. That injury is not even grievous. In such circumstances, we do not find that an offence under Section 307 of the Indian Penal Code is attracted. That injury will not come within the ambit of “grievous hurt” provided under Section 320 of Indian Penal Code. In such circumstances, appellant could only be convicted for the offence under Section 324 of the Indian Penal Code for causing hurt on PW2 with a dangerous weapon. Hence, conviction of the appellant for the offence under Section 307 of Indian Penal Code is to be modified to Section 324 of Indian Penal Code. As the 33 Cr.A.No.471/09 sentence awarded for the offence under Section 302 is only imprisonment for life with fine, we find no reason to interfere with the sentence. 14. The appeal is allowed in part. The conviction of the appellant for the offence under Section 302 of the Indian Penal Code and the sentence awarded for the offence are confirmed. The conviction and sentence awarded for the offence under Section 307 of the Indian Penal Code are set aside and the appellant is found not guilty of that offence. The appellant is convicted for the offence under Section 324 of the Indian Penal Code and is sentenced to simple imprisonment for one year. That sentence shall run concurrently. **M** . **Sasidharan Nambiar, Judge** ## **P.Bhavadasan, Judge** Cr.A.No.471/09 34 sta Cr.A.No.471/09 35