State of Kerala v. Udayabhanu and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 26TH DAY OF JULY 2018 / 4TH SRAVANA, 1940** ## **CRL.A.No. 677 of 2004** **AGAINST THE JUDGMENT DATED 31.03.2004 IN SESSIONS CASE NO.500/2000 of THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK (ADHOC-I), ALAPPUZHA** ## **APPELLANT/ACCUSEDNOS 1 AND 3 TO 5:** **1 UDAYA BHANU, S/O THANKAPPAN, MUTHALASSERIL, VADAKKETHIL,, PATHIYURTHOTTAM, PATHIYUR P.O.** **2 UTHAMAN THAMPI S/O. PADMANABHAN LEELA BHAVANAM, PATHIYURTHOTTAM, PATHIYUR P.O. 3 AJITHKUMAR S/O. UTHAMAN THAMPI LEELA BHAVANAM, PATHIYUTHOTTAM,, PATHIYUR P.O.** **4 LEELA D/O. RAMAN CHANNAR LEELA BHAVANAM, PATHIYUTHOTTAM, PATHIYUR P.O.** **BY ADVS. SMT.LEGITHA D'CRUZ SRI.B.PRAMOD SRI.S.VIJAYAKUMAR ST.P.SANTHALINGAM** ## **RESPONDENT/COMPLAINANT:** **STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. SMT.SHEEBA K K, PUBLIC PROSECUTOR SMT.P.M.SAJITHA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.07.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.A. No.677 of 2004 -2- ## **MARY JOSEPH, J** **--------------------------------------------------Crl.A No.677 of 2004 --------------------------------------------------Dated this the 26[th] day of July, 2018** ## **J UD G M E N T** The appeal on hand is directed against the judgment dated 31.03.2004, of the Additional Sessions Judge, (Fast Track) (AdhocI), Alappuzha (for short 'the court below'), in S.C.No. 500 of 2000, by which the appellants who are accused Nos.1 and 3 to 5 have been found guilty, convicted and sentenced to undergo rigorous imprisonment for three years and fine of Rs.7500/- under Section 307 IPC and rigorous imprisonment for 1 year under Section 324 IPC. The accused was also directed to undergo rigorous imprisonment for one year in default of payment of fine. Compensation is also directed to be paid from the fine amount on realisation. Accused Nos.1, 3 to 5 are the appellants herein. 2. The appellants along with seven others have been chargesheeted by the Kareelakulangara Police Station for the offences punishable under Sections 323, 324, 427, 506 and 307 r/w Section 34 IPC. 3. The prosecution case is summarised herein below: On 25.03.1999, a general body meeting and election of the Crl.A. No.677 of 2004 -3- office bearers of “Pathiyur Kera Karshaka Sanghom” was scheduled to be held at 5.30 p.m in S.N Nursery School situated at Cheriya Pathiyur. The accused, who was in grudge against CW1, one Mr. Rajendran, arrived at the compound of S.N Nursery School, at Cheriya Pathiyur at about 5.30 p.m. The election scheduled was postponed by the Agricultural Officer, who was present there. Immediately after the declaration regarding postponing of election was made by the Agricultural Officer, the 5[th] accused one Mrs.Leela rushed to the place carrying a chopper and handed over the same to the first accused, Mr.Udayabhanu. The first accused uttering the words “kill him”, rushed towards Mr.Rajendran and aimed a blow with the knife on his head. Mr.Rajendran evaded the blow and thereby it hit on the back of his right shoulder and inflicted an injury there. Thereafter the 2[nd] accused, Mr.Janardhanan rushed to the spot and stabbed PW1 with a folding knife and inflicted injuries on his body. The 3[rd] accused, Mr.Uthaman Thampi who was staying in the neighbourhood brought a gun and intimidated Mr.Rajendran and others and caused fear of death in them. The 4[th] accused, with a knife in his hand stabbed CW2, i.e. Mr.Yasodharan on his backside. The 5[th] accused fisted on the back of Yasodharan. The accused 6 to 8 also beat CW3 and CW4 with sticks carried by them and caused injuries on their heads and palms. He also stabbed Crl.A. No.677 of 2004 -4- CW4 on his right shoulder with a knife. He also stabbed CW3 on the vertex of his head. Accused 9 to 10 beat and fisted CW1 to 4. In the incident, Mr.Rajendran lost his gold chain, gold ring and wrist watch and sustained loss. CW3, Mr. Mohandas, also lost his gold chain and a locket in the incident and thereby sustained a loss to the tune of Rs.5,400/-. Therefore, it is alleged by the prosecution that, all the accused have committed criminal acts as aforesaid, in furtherance of their common intention. One among the injured, i.e. Mr. Rajendran lodged First Information Statement before the Kareelakulangara Police Station. On the basis of the FIS, Crime No.65 of 1999 was registered by the Assistant Sub Inspector of Police, Kareelakulangara Police Station. Investigation was conducted by the Sub Inspector of Police, Kareelakulangara Police Station. Concluding the investigation, a final report was prepared and laid by the Circle Inspector of Police, Kayamkulam Police Station before the Judicial First Class Magistrate Court, Kayamkulam. The final report was taken on file by the Magistrate and by proceedings initiated as C.P. No.14 of 2000, the case was committed to the Court of Sessions, Alappuzha. From the said court the case was made over to the Additional Assistant Sessions Court, Alappuzha. 4. After a preliminary hearing, the court below framed Crl.A. No.677 of 2004 -5- charges against all accused under Sections 307, 323, 324, 427 and 506 of IPC r/w Section 34 IPC. Charge was read over and explained to each of the accused in malayalam. They pleaded not guilty and faced trial. 5. On the side of the prosecution, witnesses were examined as PW1 to PW15, documents and properties respectively were marked as Ext.P1 to P11 and MO I and MO II. Contradictions in the version of the prosecution witnesses were also marked by the accused as Exts.D1 to D4(c). On closure of the evidence of the prosecution, each of the accused were examined under Section 313(1)(b) Cr.P.C with reference to the incriminating circumstances brought in evidence by the prosecution against each of them. They denied all those questions. They raised a plea of total innocence and false implication. Accused Nos.1 to 6 and 9 filed separate written statement contending that they are innocent. Accused No.1 had stated that he had not gone to the school compound on the alleged date of incident. The 3[rd] accused had contended in his written statement that he was assaulted at the place of occurrence. Accused 3 to 6 had contended that they were assaulted by PW1 and others after trespassing into the house of the 3[rd] accused. Both sides were heard and for want of any grounds made out to record an order of acquittal under Section 232 Cr.P.C, all the accused were Crl.A. No.677 of 2004 -6- called upon to enter on their defence. The accused examined a witness as DW1. 6. The prosecution as well as the defence were heard. The oral as well as documentary evidence on record were perused. After evaluating the rival contentions put-forth by the respective counsel and appreciating the oral as well as documentary evidence, the court below arrived at a finding of guilt against accused No.1 and 3 to 5, and acquitted the other accused. As already stated, the appellants were found guilty, convicted and sentenced only for the offences under Sections 324 and 307 r/w Section 34 IPC and acquitted for the offences under Sections 323, 427 and 506 IPC. 7. Sri.Saran, the learned counsel for the appellants has advanced arguments based on the grounds as stated herein below: - i. The court below failed to appreciate the oral as well as documentary evidence and thereby caused miscarriage of justice. - ii. The court below failed to advert to the First Information Statement lodged by CW1 in the case on hand which is a totally fabricated one. - iii. PWs 1, 5, 9, 12 and 13 have been examined by the prosecution as ocular witnesses out of which PWs 1, 5, 9 and 12 were injured in the incident and therefore are Crl.A. No.677 of 2004 -7- interested witnesses. The court below ought to have scrutinized the oral evidence tendered by those witnesses with much care and caution. According to the learned counsel the finding of guilt of the appellants have been arrived at by the court below relying blindly on the versions of the above witnesses without scrutinizing it properly. iv. The versions of the interested ocular witnesses and PW13, the independent ocular witness though inconsistent in material aspects, the court below overlooked those and arrived at the finding of guilt, which is totally erroneous. v. The court below ought to have found that versions of PW3 and PW13 as incredible ones. vi. The investigation in the case on hand was conducted by PW14 in an irresponsible and careless manner. As disclosed from the evidence of PW14, he had acted in a biased and prejudicial manner against the accused. The court below failed to scrutinize the evidence of PW14 with care and caution. Vii. While examining the accused under Section 313(1) (b) Cr.P.C, entire incriminating circumstances brought on Crl.A. No.677 of 2004 -8- record by the prosecution have not been specifically put to each of the accused and they have not been given a chance to explain the same. 8. Raising contentions as above learned counsel for the appellants urged that the prosecution had thoroughly failed to establish the guilt against the appellants and therefore the finding of guilt and the orders of conviction and sentence followed thereby suffer from illegality, impropriety and infirmity. 9. On the contrary, Smt.Sheeba.K.K, the learned Public Prosecutor has submitted that this is a case wherein the prosecution had relied upon the oral evidence of four persons, three out of whom are the victims of the incident and the remaining one, an independent witness, who was not inflicted with any injury but was very much available at the spot at the relevant time of the incident. According to her, there is no reason to disbelieve PWs 1, 5, 9, 12 and 13, since their versions corroborate in material particulars. According to her, the versions of the aforesaid witnesses also find corroboration with the medical evidence available. It is contended by the learned Public Prosecutor that the material objects marked in evidence would establish that, those were in use by the accused at the relevant time of commission of the offences and the injuries found on the bodies of those victims Crl.A. No.677 of 2004 -9- were stated by the medical practitioners as liable to be caused with the weapons available. According to her, the judgment is a justifiable one and interference is uncalled for. 10. The rival contentions are considered in the backdrop of the evidence on record. As already stated, PW1 Mr.Rajendran was injured and also the first informant of the incident. Immediately after the incident he was transported to V.S.M Hospital, Thattarampalam by the people available at the spot and admitted there. PW1 was questioned by the Sub Inspector of Police, Kareelakulangara Police Station at the hospital and his statement was recorded, which is Ext.P1(a) marked in the case. Based on Ext.P1(a), Ext.P1, Crime No.65 of 1999 was registered. 11. According to PW1, the election and a general body meeting of 'Pathiyur Kera Karshaka Sanghom' was scheduled in S.N Nursery School at Cheriya Pathiyur at 4 p.m on 25.03.1999. The Agricultural Officer visited the nursery school at that time and went to the house of the 3[rd] accused. After a conversation held there among him, the 3[rd] accused and others available there, he returned to the Nursery School and informed the people gathered there that the election scheduled to be held on the day was postponed indefinitely and the date of election will be informed later. He left the place and then one Mr.Ajikumar @ Unni the 4[th] accused arrived Crl.A. No.677 of 2004 -10- at the spot. The 5[th] accused, Mrs.Leela brought a chopper from the 4[th] accused's house and handed it over to the first accused. The first accused aimed a blow at the head of PW1, Mr. Rajendran uttering “he would be killed”. The second accused, one Mr.Janardhanan arrived there and stabbed Mr.Rajendran three-four times, with a folding knife. He sustained injuries on his face, forehead and below the left nipple. The first accused then chopped his head and inflicted an injury. The 3[rd] accused arrived there and hit him with a gun in his hand stating that he would not let him alive. One Mr.Sugathan beat him with an iron rod. He cried aloud and then accused Nos.2, 5, 8 and 10 and some other persons also beat him. He cried aloud and hearing the hue and cry, his brothers who are CWs2 to 4 rushed to the spot. The accused beat them also. Mr.Ajikumar @ Unni the 4[th] accused stabbed his brothers, CW2 and CW4 with a knife. A chain of 2¾ sovereigns, a golden ring of 1 sovereign and H.M.T watch were lost by him in the incident. Thereafter he has taken to Government Hospital, Kayamkulam. Mr.Soman (CW4) was taken to V.S.M Hospital, Thattarampalam. Mr.Yasodharan (CW2) was taken to the very same hospital and was shifted to Medical College Hospital, Kottayam. According to PW1 his statement was recorded by the police and Ext.P1 is the copy of the signed statement recorded. It was stated by PW1 that he was a Crl.A. No.677 of 2004 -11- candidate in the election held at the Devaswom of Cheriya Pathiyur. At the relevant time, the accused had canvassed against him. But he succeeded in the election and became the Secretary of the Devaswom. According to him since then, all the accused were in grudge against him. The accused as well as the material objects were identified by him before the court. Admittedly, his statement was recorded by the police only once and that is Ext.P1. During cross examination, it was admitted by PW1 that a counter case was also registered against himself and his brothers at the instance of the accused and that is pending before the court as S.C.No.501 of 2000. It has also come out from the evidence that himself and his brothers belong to C.P.I(M) and the accused are activists of Congress. He has also stated about involvement of himself and his brothers in several criminal cases. It was brought out during cross examination that witnesses PWs. 5, 9 and 12 arrived at the spot after the first part of the incident i.e. infliction of injuries on PW1 by accused Nos.1 to 3. PW3 has clearly stated that only when he has raised his voice and cried that his brothers rushed to the spot to intervene and save him. 12. The medical evidence available in the case on hand with reference to PW1 are Ext.P6, the certificate issued from Government Hospital, Kayamkulam and the oral evidence tendered Crl.A. No.677 of 2004 -12- by PW10, Dr.Ajith Kumar, the Assistant Surgeon attached to the said hospital. In Ext.P6, the following injuries are reported: “1. 2. small lacerated wounds each ½ c.m x ¼ c.m on the (Rt) deltoid muscle. 2. Multiple small abrasions on (lt) hand & scalp” 13. According to PW10, PW1 was admitted in the hospital and himself has spoken the alleged cause of injury to him as "വ�ട കത� വക�ണ� വ�ട�യത�ന�ൽplace Pathiyur at 5.30p.m”. According to him, the injuries reported in Ext.P6 could be caused by a sharp edged weapon. He has also stated that the first injury could be caused with a blunt edged weapon. According to him the second injury could be caused in a fall. When confronted with MOI knife, he had stated that it being a sharp edged weapon, could cause incised wound when a blow is executed with great force. In the opinion of PW10, injuries reported in Ext.P6 as '1' could be caused with MOI weapon. According to PW1 the blow was aimed at him forcefully. Therefore the oral evidence of PW1 and the medical evidence corroborates and the court below is perfectly justified in relying on those to arrive at the finding that the accused is guilty of the offence. 14. It is true that when examined as PW1, the witness had deposed several aspects over and above those have already been Crl.A. No.677 of 2004 -13- spoken by him before the police. Those aspects have been brought to light by the defence during cross examination. PW1 has stated in the box that he was severely attacked by accused Nos.1, 2 and 3. It was also his case that the 2[nd] accused had stabbed him severely. But, admittedly those aspects had not been spoken by the accused to the police during investigation. But the injuries reported in Ext.P6 do not tally with his oral evidence. Those aspects have also been clarified by the defence through PW14, who had recorded the statements of the witnesses. Therefore, solely for the reason that PW1 has spoken exaggeratively in the court, what have been corroboratively established by the oral as well as medical evidence cannot be thrown out by the court. 15. PW5 is none other than Mr. Soman, the elder brother of PW1. According to him, himself, PW9 and PW12 arrived at the spot on hearing the hue and cry of PW1. But PW5 had deposed before the court, as if he was very much available at the spot prior to the occurrence itself. He had categorically narrated about the blows of the 1[st] , 2[nd] and 3[rd] accused on PW1 eventhough his specific claim was that he arrived at the spot only when he heard the hue and cry of PW1 after being attacked by A1 to A3. The specific case of PW5 was that he proceeded to the spot only after hearing PW1's cry. But the presence of PW5 at the spot is well spoken by other Crl.A. No.677 of 2004 -14- prosecution witnesses. It has come in evidence that PW5, PW9 and PW12 were standing somewhere near to the place of occurrence and arrived at the place of incident only after hearing the cry of PW1. Since they were present at the spot near to the place of occurrence, their chance to witness the incident cannot be ruled out. The medical evidence relating to PW5 available in the case on hand are Ext.P2 and the oral evidence tendered by Dr.Joy.S the Casualty Medical Officer who had examined him at V.S.M Hospital, Thattarampalam after the incident. The injury found on the body of PW5 indicates his presence at the spot at the relevant time. 16. The version of PW5 in the court was that after reaching the spot, he had intervened in the incident According to him, he was attacked by Mr. Ajikumar, the 4[th] respondent with a knife and he had sustained injuries. Going by Ext.P2, the accident register cum wound certificate of PW5 it is seen that he had sustained an incised wound 2.5 x 0.75mm on the lateral aspect of the right shoulder. 17. Dr.Joy was examined before the court as PW2. He has categorically stated in the court that the incised wound reported in Ext.P2 could be caused with a sharp edged weapon like dagger. The specific case of PW5 was that he was attacked by the 4[th] accused with a dagger. Therefore, the evidence of PW5 clearly Crl.A. No.677 of 2004 -15- finds corroboration in the medical evidence consisting of Ext.P2 and the oral evidence of PW2. 18. PW9 is another witness cited by the prosecution as an ocular witness. He is also an injured in the incident. PW9 is none other than the younger brother of PW1, the first informant. He has deposed about the incident prior to the occurrence in which he had sustained injuries. According to him after the election was declared as postponed by the Agricultural Officer, he witnessed the attack of PW1 by accused 1 to 3. It is his specific case that alongwith PW5 and PW12 he reached the place of occurrence on hearing the cry of PW1. It is also their admitted case that they were available at some distance away from the place of occurrence even prior to the occurrence itself. According to PW9 he had intervened the attack by the assailants and the 4[th] accused stabbed him with the dagger in his hand. He has also stated about the attack by the 4[th] accused on PW5 with a dagger and infliction of injuries by him on his right shoulder. The specific case of PW9 was that the 4[th] accused came from behind and stabbed on his left back side and the pointed edge of the weapon reached at the front portion, piercing his body. He fell down and vomited blood. According to him his abdomen got injured and the people gathered there transported him to the VSM Hospital, Mavelikkara. As directed by the doctor there, he was Crl.A. No.677 of 2004 -16- taken to Medical College Hospital, Kottayam for further management. He was admitted and treated there as impatient for 34 days. His version would further reveal that a discharge was obtained from Medical College Hospital, Kottayam after 34 days' inpatient treatment, but, the injury was not healed and blood was oozing out. Therefore, he was admitted at Medical College Hospital, Kottayam again and treated for five days. According to him, his eye-sight was lost and due to the stab injury sustained, he has become disabled now. According to him, the treatment records are with him. He has also described about the nature of the dagger. According to him it was about 8 inch long and has sharp edges on both sides. He has identified the weapon as MO2 and has also identified the accused in the court. 19. Eventhough he had stated while adducing evidence that all the records pertaining to his treatment were available with him, he has produced only the accident register-cum-wound certificate and a discharge certificate. Those documents were got marked in evidence as Exts.P3 and P8. Ext.P3 is the accident register-cumwound certificate issued from VSM Hospital, Mavelikkara. It was issued by Dr.Joy.S who was examined before the court as PW2. At the time when PW9 was brought to the hospital, the doctor had noticed excessive bleeding from his mouth and that was reported in Crl.A. No.677 of 2004 -17- Ext.P3. A wound 2x1 cm intruding on the intra scapular area on the left side was also reported in Ext.P3. As per the endorsement noted from Ext.P3, PW9 was referred to Medical College Hospital, Kottayam from VSM Hospital. It is relevant to notice from Ext.P8, the discharge certificate of PW9 issued from Medical College Hospital, Kottayam that in the CT Scan held therein, massive fluid collection on left hemothorax was noted. It is revealed from Ext.P8 that PW9 was treated at Medical College Hospital, Kottayam as inpatient for a period from 25.3.1999 till 21.4.1999. It can be seen from Ext.P3 that he was referred to Medical College Hospital, Kottayam on the date of admission at VSM Hospital itself. Therefore, he had only inpatient treatment for 27 days. Medical records are not available to establish that he was treated for a period of 39 days as contended by him. The doctor, who had issued Ext.P3 was examined as PW2. During examination he had stated specifically about the injuries as noted in Ext.P3. He has also stated that the injury was a bleeding injury, but, the exact depth of which was not measured by him. According to him the exact depth of the wound could only be assessed in a surgical procedure and the cause of the injury was as stated by PW9 to him. The condition of PW9 was stated by PW2 as very critical and therefore he was referred to Medical College Hospital, Kottayam for better Crl.A. No.677 of 2004 -18- management. The doctor who had treated PW9 at Medical College Hospital, Kottayam was not examined. However, the evidence available on record would clearly establish that PW9 was attacked by the 4[th] accused with a dagger. It is true that the dagger is not produced before the court. But the attack with the dagger was clearly spoken as seen by PW5 and PW12. The medical evidence reveals that he had sustained a stab injury. The doctor has opined the possibility of the injury to be inflicted with a sharp edged weapon. Therefore, the ocular evidence corroborates with the medical evidence. 20. PW12 was also an injured in the very same incident. He was the elder brother of PW1. According to him he was available at the spot somewhere near to the place of incident from the very origin of the incident itself. According to him when PW1 cried aloud uttering that he is being killed, himself along with PW5 and PW9 rushed near to the place where PW1 was found. According to PW12 when he reached near, PW1 was found there lying wounded. PW12 has also stated that he intervened in the incident and was attacked by the 4[th] accused on his shoulder and sustained a bleeding injury there. But he did not state who had inflicted injuries on him. According to him the 3[rd] accused, brought a gun to the place and pointed it at PW1 uttering that he would be killed. Crl.A. No.677 of 2004 -19- When he intervened the attack of the 4[th] accused on PW9, the 3[rd] accused bet him with the gun on his head. He had also found the 4[th] accused stabbing PW5. He had identified the weapons as well as the accused in the court. He has also added by stating that he was beaten with a stick. He had also seen the attack by the 4[th] accused on PW9 from his back. PW12 had also deposed in categoric terms that PW9 was inflicted with an injury on the back of his shoulder. PW12 had identified the accused in the court. PW12 was taken to VSM Hospital, Mavelikkara alongwith PW9 and PW1. According to him, from VSM Hospital PW9 was taken to Medical College Hospital, Kottayam and himself had also accompanied him. The medical evidence relating to him is Ext.P7, the accident-cumwound certificate issued from Medical College Hospital, Kottayam. A lacerated wound 2 x 0.5 x 0.5 cm on the vertex was reported in Ext.P7. Eventhough he was further investigated medically, any fracture or other grievous injuries were not noticed. Ext.P7 was prepared by Dr.Jyothish, Lecturer in Surgery, associated with Medical College Hospital, Kottayam. He was examined before the court as PW11. According to him, an injured namely Mohandas was brought to him with a lacerated wound 2.5x0.5x0.5 on the vertex. The alleged cause of injury was spoken by the injured himself to him as hit by a gun on 25.3.1999 at Pathiyur. According to him Crl.A. No.677 of 2004 -20- Ext.P7 certificate was issued by him. Mohandas was treated by him as outpatient. According to him the injury noted in Ext.P7 can be caused by beating with an iron rod. Therefore, the medical evidence finds corroboration with the oral evidence of PW12 also. Therefore, the incident as alleged by the prosecution and the infliction of injuries and the treatment undergone by the prosecution witnesses have been clearly established from the evidence as narrated hereinabove. The present appeal is filed by accused No.1 and 3 to 5. According to the learned counsel 1[st] and the 2[nd] accused are no more. Therefore, the appeal against them is liable to be abated. But it is pertinent to note that both of them have been found guilty for the offences punishable under Sections 307 and 324 IPC. For the offence under Section 307 IPC, the accused have been sentenced to undergo rigorous imprisonment as well as to pay fine of Rs.7,500/- each. Since the punishment includes fine, the same will not abate as far as the sentence of fine is concerned. 21. The accused No.4 and 5 are the other appellants challenging the judgment of the court below. As revealed from the discussion hereinabove made, there is sufficient evidence to point out the guilt against 4[th] accused. Witnesses PWs 1, 5, 9, 12 and 13 have deposed in corroborative terms that they had seen the attack of PW5 and PW9 by the 4[th] accused. Therefore, there is absolutely Crl.A. No.677 of 2004 -21- no reason warranting reversal of the finding of guilt against 4[th] accused. 22. As far as the 5[th] accused is concerned, she is a lady by name Leela. According to witnesses of the prosecution, who had been examined before the court as PWs 1, 5, 9, 12 and 13, the 5[th] accused brought a chopper from the 3[rd] accused's house and handed over to the 1[st] accused. According to the prosecution witnesses using the chopper, which is marked in evidence as MO1, PW1 was attacked by the 1[st] accused. In this connection it is pertinent to have a look at the court charge. In the court charge, the only allegation against the 5[th] accused was that she fisted on the backside of CW2, who is examined before the court as PW9. Apart from that no other allegations are found in the court charge against 5[th] accused. All the witnesses of the prosecution while being examined before the court had deposed that it was the 5[th] accused who had brought MO1 knife and handed over the same to the 1[st] accused. But it is pertinent to note from the charge framed by the court and available for perusal that the 5[th] accused was not charged with the act alleged as above. In this connection, it is pertinent to have a look at Section 211 Cr.P.C wherein what should be incorporated in a 'charge' are elaborately dealt with. The allegation of the prosecution in the case on hand was that by fisting Crl.A. No.677 of 2004 -22- PW9 with her hand, 5[th] accused along with other accused was involved in the commission of offences punishable under Sections 324 and 307 IPC. But the 5[th] accused as stated by the prosecution witnesses before the court, has not fisted PW9 on his back with her hand. The only version spoken by the prosecution witnesses against the 5[th] was that she had brought a knife and handed over to the 1[st] accused, which allegations do not find a place in the charge framed against him by the court. In this connection it is relevant to have Section 211 Cr.P.C extracted hereunder. “ **211. Contents of charge** -(1) Every charge under this Code shall state the offence with which the accused is charged. (2) If the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. (3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. (4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge. (5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case. (6) The charge shall be written in the language of the Court. (7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact date and place of Crl.A. No.677 of 2004 -23- the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed. “ 23. Section clearly states that every charge shall state the offence with which the accused is charged. In sub-section (2) of Section 211 Cr.P.C, it is stated that if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only. Sub-section (3) states that if the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the offence for which he is charged. Therefore, the purpose behind framing a charge against a person is to make him aware of the offence for which he will be tried by a court of law. 24. In the case on hand from the charge framed by the court below it is revealed that satisfactory materials are not incorporated therein to make the 5[th] accused known about the offence with reference to which the trial against him is proposed to be held. A perusal of the court charge would reveal that the only allegation levelled against 5[th] accused was that she had fisted PW9 with hand, to establish which, any evidence is not forthcoming from the prosecution. For the offence for which the prosecution has successfully adduced evidence, no charge was framed against and Crl.A. No.677 of 2004 -24- read over to her. Therefore, the trial held against the 5[th] accused is vitiated for want of a charge framed against her for the offence under Section 307 IPC. For the charge framed against the 5[th] accused under Section 324 IPC, no evidence is forthcoming from the witnesses of the prosecution to establish it. Therefore, the trial held against the 5[th] accused is vitiated under the law. In the aforesaid circumstances the finding of guilt against the 4[th] accused is liable to be confirmed and finding of guilt against the 5[th] accused, is liable to be reversed. Accordingly, the conviction against the 4[th] accused is confirmed and the finding of guilt, conviction and sentence against the 5[th] accused is reversed. The 5[th] accused is found not guilty for the offences under Sections 324 and 307 IPC and accordingly is ordered to be set at liberty forthwith. 25. As far as the 4[th] accused is concerned as already stated the finding of guilt against him for the offences under Sections 324 and 307 IPC is confirmed. The learned counsel for the appellant canvassed that he is a disabled man and also the sole breadwinner of his family. On a perusal of the judgment under challenge, it is pertinent to note that these aspects have already been raised by the accused and dealt with by the court below. Duly considering those, the punishment liable to be imposed was reduced to the extent provided herein. It is pertinent to note from the sentence imposed Crl.A. No.677 of 2004 -25- that the 4[th] accused was directed to undergo rigorous imprisonment for three years and pay fine of Rs.7,500/-. He was also directed to undergo rigorous imprisonment for one year for the offence under Section 324 IPC. It is clear upon a perusal of Sections 324 and 307 IPC respectively that the punishment liable to be imposed on a finding of guilt of the respective offences was imprisonment upto three years and ten years with fine. Leniency was already shown to the 4[th] accused in the matter of imposition of punishment. However, considering the physical status of the 4[th] accused and the factum that he is the sole breadwinner of his family consisting of his wife and daughter, this Court is inclined to modify the sentence imposed under Section 307 IPC by the court below, by reducing it to rigorous imprisonment for two years. The imposition of fine of Rs.7,500/- and default sentence are maintained. The sentence imposed by the court below for the offence under Section 324 IPC is also maintained. The directions in the impugned judgment to set off the remand period against the sentence imposed and to undergo the sentences concurrently are maintained. The appeal is allowed in part as above. ## ## **MARY JOSEPH Judge** NAB/ab