Shaji v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD THURSDAY, THE 11TH DAY OF DECEMBER 2014/20TH AGRAHAYANA, 1936 CRL.A.No. 709 of 2004 (B) -------------------------AGAINST THE JUDGMENT IN S.C.NO. 442/2002 of ADDITIONAL SESSIONS COURT, FAST TRACK (ADHOC-I), ALAPPUZHA DATED 22-04-2004 APPELLANT(S)/ACCUSED:: ------------------------------------------ SHAJI, MALLAPPALLI VEEDU, KOTTOMKULANGARA WARD, ALAPPUZHA. BY ADV. SRI.GOKUL DAS V.V.H. RESPONDENT(S)/COMPLAINANT:: ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.MADHU BEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.Appeal No.709 of 2004** **-------------------------------------Dated this the 11[th] day of December, 2014.** ## **JUDGMENT** By challenging the conviction imposed by the trial court under Section 326 of the Indian Penal Code (in short, “IPC”), the accused has come up in this appeal. Allegation, in short, is that on 06.02.2002 at 10.30 p.m., he beat PW2 with an iron rod, causing fracture on the left ulna. Further, he sustained an injury on the head also. It is the prosecution case that the appellant nurtured a grudge against PW2 since the latter refused to be a witness in a case in which the appellant was involved. 2. Court below examined seven witnesses and marked six documents on the side of prosecution. One witness testified on the side of defence. MO1 is the iron rod allegedly used to attack PW2. 3. Heard the learned counsel for appellant and the learned Public Prosecutor. 4. Learned counsel for the appellant contended that the testimonies of PWs 2 and 3, which are mainly relied on by the court below, are not trust worthy. Further, recovery of weapon was not proved and in fact the trial court itself has disbelieved the alleged recovery. Another point canvassed by the learned counsel is that the medical records show that 2 Crl.Appeal No.709/2004 PW2 sustained fracture of left ulna, but there was no corresponding external injury. Therefore, the prosecution case becomes highly improbable and PW2 could have sustained injuries by some other means, contended the learned counsel. 5. Before considering these contentions, let us go through the oral evidence. PW1 was the Lecturer in Orthopaedics at Medical College Hospital, Alappuzha. He examined PW2 at 01.05 a.m. (night). At the time of hospitalisation, PW2 had a lacerated wound over the scalp and pain and swelling over the left forearm. X-ray revealed fracture of shaft of ulna. Ext.P1 is the wound certificate proved by PW1. The alleged cause of injury was that PW2 was attacked at about 10.30 p.m. on 06.02.2002. In crossexamination, PW1 deposed that PW2 was conscious at the time of hospitalisation. PW3 accompanied him at the time of hospitalisation. PW2 did not mention the name of the assailant. The nature of weapon used is also not mentioned. This witness was not questioned by the Police. A specific question was put to this witness as to whether a fracture to ulna normally could produce a contusion or bruise on the skin. The answer to this question by PW1 was that it was possible. In cross-examination, PW1 further stated that swelling resulted because of the fracture and the delay in getting medical aid. 6. PW2 is the victim. According to him, on 06.02.2002 at about 3 Crl.Appeal No.709/2004 10'o clock in night, he was attacked by the appellant by the side of a public road. There is no dispute that the appellant and PW2 are known to each other. There was some festival in a nearby temple on the date of occurrence. PW2 along with PW3 went to the temple. Thereafter, PW2 came back to his workshop on the motor cycle ridden by PW3. When he got down from the motor cycle near his workshop and when PW3 was about to move, the appellant appeared with an iron rod and attacked PW2 without any provocation. At the time of attacking PW2, the appellant was exhorting that he should have stood as a witness for him in a case. The first beating was warded off by PW2. It landed on his palm and then on his head. There was bleeding from his head. He placed his hand on the head. At that time, the appellant again beat him on the left forearm, causing fracture. PW3 and one Guruprasad came to the place of occurrence. Immediately the appellant ran away with the iron rod. He identified MO1 as the iron rod used by the appellant to assault him. PW3 took PW2 to the Medical College Hospital, Alappuzha. There the Doctor examined him and fracture was identified. He was an inpatient there for five days. He underwent treatment for about four months. This witness was subjected to cross-examination. It is his version that the incident happened almost in front of his workshop. There is an alley starting from the road, which leads 4 Crl.Appeal No.709/2004 to his house. PW3 dropped him near the alley and when he was about to move away, the appellant attacked PW2. PW3 had moved only a short distance after dropping PW2, so that he could see the incident. On going through the cross-examination, it can be seen that there is no dent or discredit made to the evidence of this witness and his evidence remains credible. 7. PW3 lends support to the testimony of PW2. It is his definite case that immediately after he dropped PW2 near the alley, the incident happened and he was just moving away at the time of the incident. It is the definite version of PW3 that the appellant attacked PW2 with an iron rod and after inflicting blows, he ran away with it. PW3 took PW2 to the Medical College Hospital, Alappuzha. On all material aspects, this witness supports the prosecution case. 8. PW4 is a witness to Ext.P3 scene mahazar. PW5 is a witness to Ext.P4 search list. He identified the signature in Ext.P4. In chiefexamination, this witness admitted that he signed on Ext.P4 as a witness to the recovery of MO1. In cross-examination, he stated that he was asked to sign on two blank papers when the Police Officer came to prepare the scene mahazar. However, this witness cannot be said to be loyal to the prosecution. 5 Crl.Appeal No.709/2004 9. PW6 was the Head Constable of Alappuzha North Police Station. He registered the crime as per the intimation received from the Medical College Hospital, Alappuzha and recorded Ext.P2 first information statement. 10. PW7 conducted investigation of the case. As per Ext.P4 search list, he conducted search in the house of the appellant and recovered MO1. After closing the investigation, the final report was filed. 11. The testimonies of prosecution witnesses show that at the said time and place the appellant attacked PW2 with an iron rod. Learned counsel for the appellant drew my attention to paragraph 21 of the judgment of the trial court wherein recovery of MO1 (iron rod) was disbelieved by the court below. Reasoning by the court below is that PW7 did not state as to how he got information that MO1 was the weapon used by the appellant to attack PW2. It is true that there was no attempt to show this weapon to the material prosecution witnesses including the Doctor at the time of investigation. It cannot be stated that the reasoning of the court below is completely incorrect. But, fact remains that the weapon of oppression is not an essential ingredient to establish the offence under Section 326 IPC, if other evidence show that the prosecution is credible. Even in the absence of weapon of oppression the guilt of the accused can be established, if the ocular evidence coupled with the medical evidence 6 Crl.Appeal No.709/2004 show that the accused attacked the victim and a dangerous weapon or instrument was used for inflicting the injury. This principle is fortified by the decision of Supreme Court in **Rajinder and others v. State of Haryana and another (AIR 2004 SC 4352)** . That is a case where the allegation was that the victim was attacked by stones and sticks, which were not recovered, the Supreme Court held that it cannot be a ground to throw out the prosecution case when the same has been otherwise found to be truthful by credible evidence. In this case, the fact that the appellant attacked PW2 is established by the testimonies of PWs 2 and 3. That apart, the evidence tendered by PW1, the Doctor and the recitals in Ext.P1 wound certificate also fortify this prosecution case. Even if we discard the identity of MO1 iron rod, it can only be seen that a dangerous weapon was used by the appellant to inflict injury on the left hand of PW2. Another submission raised by the learned counsel for the appellant is regarding the absence of any external injury in spite of PW2 suffering a fracture. It is a possibility that if a person sustains fracture on account of violence, there could be superficial injuries on the skin. Modi's Medical Jurisprudence and Toxicology deals with this subject. Learned author says that bruises or contusions are injuries which are caused by a blow from a blunt weapon such as a club, whip, iron bar, stone, etc. It can be seen that contusion or 7 Crl.Appeal No.709/2004 bruises are formed due to the rupture of small subcutaneous blood vessels. In that case skin is intact. Swelling, tenderness and discolouration of the skin are the signs of contusion/haematomas. Learned author further says that they appear after sustaining injury and sometimes it is delayed by one or two days. There are so many factors influencing the appearance of external injury like the nature of weapon used, location of assault, nature of body part involved, etc. In this case, the wound certificate shows that he had swelling at the fracture site. It is not mentioned in the wound certificate that it is a compound fracture or comminuted fracture. Merely for the reason that there was no corresponding external injury, it cannot be assumed that the fracture happened in any other manner than the one suggested by the prosecution. On an analysis of the entire evidence, I am of the view that the court below rightly convicted the appellant under Section 326 IPC. Therefore, the conviction is liable to be confirmed. 12. The court below imposed a sentence of two years rigorous imprisonment and a fine of `5,000/- on the appellant. Considering the facts and circumstances, I find that the sentence can be modified to meet the ends of justice. I am of the view that the compensation directed to be paid to PW2 is not sufficient. Hence the following directions. In the result, the appeal is partly allowed. Conviction of the appellant under Section 326 IPC is confirmed. The sentence is reduced to 8 Crl.Appeal No.709/2004 rigorous imprisonment for one year and the fine is enhanced to `10,000/(Rupees ten thousand only). In default of payment of fine, he shall undergo simple imprisonment for a period of three months. If the fine amount is recovered, it shall be paid as compensation to the appellant under Section 357(1) Cr.P.C. Appellant is entitled to get the benefit of set off under Section 428 Cr.P.C. Court below shall take urgent steps to execute the sentence. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**