Thankappan and Reji v. State of Kerala

Crl.A.No.2022/2006 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944_ _CRL.A NO. 2022 OF 2006_ _AGAINST THE ORDER/JUDGMENT IN SC 409/2005 OF ADDITIONAL_ _DISTRICT COURT (ADHOC), THODUPUZHA_ _CC 85/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PEERUMEDU APPELLANT/ACCUSED:_ _1 THANKAPPAN, S/O. KUTTAN, MANDAPATHIL VEETTIL, LANDRUM PRIYADARSINI COLONY, PEERMADE VILLAGE. 2 REJI, S/O. THANKAPPAN, MANDAPATHIL VEETTIL, LANDRUM PRIYADARSINI COLONY, PEERMADE VILLAGE. BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH_ ## _RESPONDENT/COMPLAINANT:_ _1 STATE OF KERALA, REPRESENTED BY THE S.I. OF POLICE, PEERMADE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADDL.R2 BABU, S/O.RAMAKRISHNAN, ERUPATHAMPARAMBIL HOUSE, PRIYADARSHINI COLONY, MANIMALA, PEERMEDU VILLAGE, PIN-685 531._ _R1 BY SRI.SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR ADDL.R2 BY ADV.PRASAD CHANDRAN_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.02.2022, THE COURT ON 18.05.2022 DELIVERED THE FOLLOWING:_ Crl.A.No.2022/2006 2 ## **J U D G M E N T** The appellants are accused Nos.1 and 2 in S.C.No.409 of 2005 on the files of Additional Sessions Court (Adhoc-I), Thodupuzha. The aforesaid case arises from Crime No.330 of 2000 of Peermade Police Station, which was initially registered for the offences punishable under Sections 324, 341 and 34 of IPC. Later, during the course of the trial, the charge was altered and an offence under Section 307 IPC was included. 2. The prosecution case is as follows: On 10.11.2000 at 7 pm, the accused persons, due to their previous enmity to the CW1, in furtherance of their common intention, entered into a wordy altercation with him, during the process of which, the 2[nd] accused caught hold of him around his waist from behind, thereby wrongfully restraining him and the 1[st] accused inflicted a deep injury on the right side of his chest by using a rubber tapping knife. 3. The crime was registered based on the same. After completing the investigation, a final report was submitted by the police for the offences punishable under Sections 324, 341 and 34 IPC. The Judicial First Class Magistrate Court–I, Peermade Crl.A.No.2022/2006 3 has taken cognizance thereon as C.C.No.85 of 2004. During the course of the trial, the learned Assistant Public Prosecutor moved the learned Magistrate to alter the charge by incorporating the offence under Section 307 IPC. Accordingly, as the learned Magistrate was convinced that the allegations and materials in the charge sheet reveal the offence under Section 307 IPC, has committed the case to the Sessions Court, Thodupuzha, as the offence under Section 307 IPC was exclusively triable by the Sessions Court. The same was received on file by the Sessions court as S.C.No.409 of 2005 and later, it was made over to the Additional Sessions Court (AdhocI), Thodupuzha. 4. In support of the prosecution case, PWs 1 to 9 were examined, Exts.P1 to P9 were marked and MO1 was identified. The contradiction in the statements of PWs 2, 3 and 4 were marked as Exts.D1, D2 and D3 series, respectively. After the closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C, and the incriminating materials brought out during the course of the trial were put to them, which they denied. No defence evidence was adduced. After the trial, the learned Sessions Judge concluded that the appellants were guilty of the offence under Section 307 IPC and Crl.A.No.2022/2006 4 accordingly, both of them were sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.10,000/each with a default sentence of rigorous imprisonment for two years each. This appeal is filed by the appellants challenging the aforesaid finding of conviction and sentence. 5. Heard Sri.C.K.Vidhyasagar, learned counsel appearing for the appellants and Sri.Sudheer Gopalakrishnan, learned Public Prosecutor for the State. 6. Learned counsel for the petitioner vehemently contended that the materials available on record do not justify the conviction under Section 307 IPC. It was pointed out that the injury sustained by the de facto complainant was not very serious in nature, and he was discharged from the hospital within four days of his admission. According to the learned counsel, none of the circumstances exist indicating any intention on the part of the appellants herein to commit the murder of PW1, while inflicting injury upon him. It was further pointed out that there was only a single injury, and the same was allegedly inflicted with a rubber tapping knife which was being kept by A1 along with him, who was admittedly a rubber tapper by profession. In such circumstances, no pre-meditation on the part of the appellants in inflicting the injuries nor the intention Crl.A.No.2022/2006 5 to commit the murder of the appellant can be found therefrom. The learned counsel also sought to rely upon certain discrepancies in the evidence of PW1 and PW2 about the manner in which the incident allegedly occurred and the motive suggested by the prosecution. He also contends that the de facto complainant and the appellants have arrived at a settlement, pursuant to which, a petition for compounding the offence by invoking Section 320 of Cr.P.C is submitted by the de facto complainant who was impleaded in this case as additional 2[nd] respondent. In such circumstances, it was pointed out that, even if the appellants were found to have committed the act of inflicting injury to PW1, that would attract the offences under Section 324 and 341 IPC. In such circumstances, the aforesaid offences can be compounded under Section 320 of Cr.P.C. 7. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention. It was contended that there are sufficient materials adduced by the prosecution in the form of evidence of PW1 and PW2. The abovementioned evidence stands corroborated by the evidence of the doctor who was examined as PW6 and also by Ext.P5 wound certificate. About the prayer for composition, it was contended that, as the evidence adduced by the prosecution clearly establishes the Crl.A.No.2022/2006 6 offence under Section 307 IPC, which is a non-compoundable offence, no composition is possible. In such circumstances, learned Public Prosecutor would pray for dismissal of the appeal by confirming the finding of the Sessions Court. 8. Thus, the crucial question that arises here is whether any interference in the finding of the Sessions Court is required or not. While considering this question, it is also to be adjudicated as to whether the materials placed on record would justify the finding of the Session Court holding the appellants guilty of the offence under Section 307 IPC. When the aforesaid questions are considered by appreciating the materials on record, it can be seen that the most crucial evidence on which the prosecution relies on are the depositions of PW1 and PW2. 9. PW1 is the victim who sustained injuries due to the act committed by the appellants herein. Ext.P1 is the First Information Statement given by PW1. The said statement was given by PW1 to the Head constable of Peermade Police Station, who was examined as PW8. It is mentioned in Ext.P1 that, on 10.11.2000 at about 7 pm, while PW1 was coming back from his place of work and when he reached in front of the house of the accused, both of them were standing there. The first appellant was holding a tapping knife at the relevant time and when he Crl.A.No.2022/2006 7 reached near them, the 1[st] appellant questioned him as to why he had an altercation with his son (A2) (which occurred some days ago). Immediately after that, the 2[nd] appellant caught hold of him from behind, and the 1[st] appellant stabbed PW1 on the right side of his chest. He cried and thereupon, his brothers Soman and Rajan came there. Immediately, he was taken to Peermade hospital in a jeep, and later, he was taken to Kanjirappally hospital. From there, he was taken to Medical College Hospital, Kottayam. The motive suggested in Ext.P1 is that the 2[nd] appellant had planned to elope with one Suma, who is the daughter of PW1's wife's uncle and this was questioned by PW1. It is also stated that he could see the accused in the moonlight and also from the light coming from the residence of the appellants. 10. While being examined as PW1, he narrated the incident occurred in an almost similar manner as mentioned in Ext.P1. However, there were some additions too. In the chief examination, he had clearly stated that the appellants had inflicted injury upon him with the intention to commit murder. He also stated that immediately after being inflicted with the stab injury, he became unconscious, and when he regained his consciousness, he was in the Medical College Hospital. Crl.A.No.2022/2006 8 However, the motive suggested by PW1 was slightly different. It was stated by him that, the 2[nd] appellant had a plan to elope with one Sumitha, the daughter of his brother and this was objected to by PW1. He also stated that when he was stabbed, PW2 was also there. 11. PW2 is the son of the brother of PW1. According to him, on 10.11.2002 at 7 PM, he heard a loud noise and when he looked, he could find that the 2[nd] appellant was holding PW1 from behind and the 1[st] appellant was stabbing him. Immediately, he reached the spot and thereupon, he could see the 1[st] appellant trying to inflict stab injury again, which he prevented. He sustained some minor injury on his hand while doing so. He denied that he had given any statement before the police to the effect that he prevented the first attempt of the 1[st] appellant to stab PW1, but he again stabbed PW1 on his 2[nd] attempt. He also denied that he had stated to the police to the effect that he had seen Sarojini and Salini along with the appellants herein at the time of commission of the offence. The aforesaid contradictions were marked as Ext.D1 series. 12. PW3 is the brother of PW1. He stated that he did not witness the incident of stabbing, as he reached after the said incident. According to him, when he reached the spot, PW1 was Crl.A.No.2022/2006 9 lying on the road in a pool of blood. He also stated that at that time, the appellants, PW2, Sarojini and Salini, were there. He also stated that PW1 told him that 1[st] appellant stabbed him. He was declared hostile to the prosecution and the contradictions in his evidence with the statements he gave to the police were marked as Ext.D2 series. 13. PW4 is a neighbour of PW1. He did not support the prosecution case and therefore declared hostile. However, he stated about PW1 being taken to the hospital after sustaining injuries. PW5 is the attestor of Ext.P4 mahazar, by which MO1 was recovered. Even though he admitted his signature in mahazar, he stated that, he signed the same without reading the contents. He denied that he had affixed his signature while the MO1 knife was produced. 14. PW6 is the Civil surgeon of Taluk Head Quarters Hospital Kanjirappally, who had attended PW1 initially and prepared Ext.P5 wound certificate. The injuries noted by her were as follows: "1. An irregular incised wound 3.5 x 1 cm one end tampering over anterior aspect of right shoulder near axilla. 2. Air entry is diminished on the right side of the chest suspecting penetrating injury chest. Crl.A.No.2022/2006 10 15. The cause of the incident is stated was a stab injury by Thankappan (A1), Sarojini, Reji (A2) and Shaji. She also opined that the injury could be caused, as alleged above. It was also stated by her that the cause of the incident was told by the bystanders. PW7 is the doctor who proved the discharge summary of the deceased issued by the Medical College hospital. As per the same, PW1 was admitted on 10.11.2000 and discharged on 13.11.2000. PW1 had not sustained any vascular injury and there was no neurovascular deficit of the right upper limit. PW8 was the Head Constable who recorded the First Information Statement of PW1 and PW9 was the investigation officer who completed the investigation and submitted the final report. 16. The primary contention put forward by the learned counsel for the appellants is that, the materials produced by the prosecution do not make out the offence under Section 307 IPC. It was pointed out that even according to the prosecution and also as stated by PW1, the 1[st] appellant was a rubber tapper by profession and hence he always used to carry a tapping knife along with him. According to him, the incident occurred without any pre-meditation under the heat of passion during a wordy Crl.A.No.2022/2006 11 altercation between the parties. The learned counsel also relies on the nature of injuries which were not very serious in nature and PW1 had undergone inpatient treatment only for three days, as evidenced from Ext.P6 discharge summary. In such circumstances, it was pointed out that the intention to cause the murder of PW1 was not revealed from the aforesaid circumstances and hence the finding of the trial court holding the appellants guilty under Section 307 IPC is liable to be interfered with. If at all any offences are made out, that can only be under Sections 324 and 341 IPC. Since the 2[nd] respondent/de facto complainant has already submitted an application for compounding the offence, the same can be acted upon. 17. However, when the evidence of PW1 and PW2 are scrutinized, I cannot accept the contention of the learned counsel for the appellants. The specific case, as revealed from the evidence of PW1, is to the effect that, when he reached the place of occurrence, which was in front of the residence of the appellants, both the accused were waiting for PW1. Even at that point of time, the appellant was holding the knife with him. His evidence would further indicate that no lengthy wordy altercation took place between the parties before committing Crl.A.No.2022/2006 12 the act alleged. On the other hand, immediately after questioning PW1 as to the dispute which he had with the 2[nd] appellant earlier, PW1 was caught hold of by the 2[nd] appellant from behind and immediately thereafter, the 1[st] appellant inflicted the stab injury. He also stated that immediately after the injury was sustained, he became unconscious. He also stated about the presence of PW2 at the time when he was stabbed. The aforesaid incident is clearly mentioned by PW2 as well. PW2 further stated that after inflicting the stab injury, the 1[st] appellant attempted to stab PW1 again, which was prevented by PW2. Even though PW3 had turned hostile to the prosecution, his evidence would reveal that he reached the spot immediately after the incident and he could find PW2 as well as the appellants there. When all these statements are taken together, the picture revealed is that the injury by stabbing in the chest was caused in a pre-planned manner. This is particularly because the evidence of PW1 is to the effect that appellants were waiting for him with a weapon at the relevant time. The aforesaid evidence stands corroborated by the subsequent events which were clearly mentioned by the other witnesses. In such circumstances, the contention of the learned Crl.A.No.2022/2006 13 counsel for the appellants that it has occurred in the heat of passion cannot be accepted. 18. The learned counsel for the appellants further contended that the injury sustained by the petitioner was not very serious and there was only a single injury sustained by PW1. By placing reliance upon the said aspect, it is contended that there was no intention on the part of the appellants to commit the murder of PW1 and therefore, the offence under Section 307 IPC is not attracted. However, in my view, the evidence available on record would go against the aforesaid contention. The medical records indeed reveal that the injury was not very serious in nature. However, it is to be noted that PW1 sustained stab injury on the anterior aspect of the right shoulder near axilla, which is on the right side of the chest. Thus it is evident that the injury was inflicted by the 1[st] appellant with a deadly weapon with sharp edges on the chest of the PW1. To attract the offence under Section 307 IPC, the knowledge of the accused that, by the act which he is attempting to commit, he can cause the death of the victim, is sufficient. In other words, the offence under Section 307 IPC would get attracted, if the act was committed with the intention to cause the death of the victim or with the knowledge that the act which he commits, can Crl.A.No.2022/2006 14 result in the death of the victim. The aforesaid provision reads as follows: "307. Attempt to murder.—Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts.—When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death." 19. In **Surinder Singh v. State (Union Territory of Chandigarh) [2022 (1) KLD 40]** , it was observed by the Honourable Supreme court as follows: "20. It is by now a lucid dictum that for the purpose of constituting an offence under Section 307 IPC, there are two ingredients that a Court must consider, first, whether there was any intention or knowledge on the part of accused to cause death of the victim, and, second, such intent or knowledge was followed by some overt actus rea in execution thereof, irrespective of the consequential result as to whether or not any injury is inflicted upon the victim. The Courts may deduce such intent from the conduct of the accused and surrounding circumstances of the offence, including the nature of Crl.A.No.2022/2006 15 weapon used or the nature of injury, if any. The manner in which occurrence took place may enlighten more than the prudential escape of a victim. It is thus not necessary that a victim shall have to suffer an injury dangerous to his life, for attracting Section 307 IPC." 20. In **State of Madhya Pradesh v. Saleem @ Chamaru and Another [(2005) 5 SCC 554]** , it was observed by the Honourable Supreme Court as follows: "12. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds.The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is Crl.A.No.2022/2006 16 present an intent coupled with some overt act in execution thereof. 13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." 21. When the aforesaid principles are applied in this case, the only irresistible conclusion possible is that, the act of inflicting injury to PW1 was with the knowledge that such injury is likely to result in the death of PW1. Admittedly, the weapon used was a sharp-edged weapon (knife), and the injury was inflicted on the chest. It is also discernible from the evidence of PW2 that the 1[st] appellant attempted to inflict another stab injury which was prevented by PW2. Even though no other witnesses have stated the same, I do not find any reason to disbelieve PW2. It is also true that there is a slight variation in the said statement he made to the police. In his statement before the police, he had stated that the first attempt was Crl.A.No.2022/2006 17 prevented by him, but the injury was inflicted on the second attempt, whereas, in his deposition, it was vice versa. However, I am of the view that the same is not a very serious discrepancy to discard the evidence of PW2 in this regard. The presence of PW2 on the spot at the relevant time, is clearly mentioned by PW1 and PW3. It is also true that the evidence of PW1 does not suggest any attempt on the part of 1[st] appellant to inflict a second injury. However, the same is quite natural as is clear from the evidence of PW1, which is to the effect that immediately after sustaining the first injury, he became unconscious. Moreover, the evidence of PW3 also clearly suggests the presence of PW2 at the place of occurrence at the relevant time. The evidence of PW3 also indicates the presence of the appellants at the spot at the time of the commission of the offence. Thus, when all these aspects are taken into consideration, i.e., the circumstances under which the incident occurred, the pre-meditation on the part of appellants, the nature of the weapon used, the fact that the injury was inflicted on the chest etc., are clear indications showing the intention and knowledge of the 1[st] appellant to commit the murder of PW1. In such circumstances, this is a clear case in which an offence under Section 307 IPC would get attracted. Crl.A.No.2022/2006 18 22. The learned counsel for the appellant highlights the discrepancies in the evidence and the lack of consistency with regard to the motive alleged. It is true that in the First Information Statement, the enmity between the parties is allegedly arising from the attempt of the 2[nd] appellant to elope with one Suma, who is the daughter of the wife's uncle of PW1, whereas, in the deposition, it is stated that 2[nd] appellant was attempting to elope with one Sumitha, the daughter of PW1's brother. However, when there is direct evidence to prove the commission of the crime, the failure of the prosecution to establish the motive, is not very relevant. Even though proving the motive would fortify the prosecution case, lack of proof thereof, would not cause any prejudice to the prosecution, in cases where direct evidence is available. In other words, the proof of motive would be significant in the cases where, the prosecution relies upon circumstantial evidence. In this case, there is direct evidence in the form of PWs 1 and 2, which are corroborated by the evidence of PW3 and medical evidence. In such circumstances, I do not find any force in the aforesaid contention of the appellant regarding the inconsistency in the motive. Crl.A.No.2022/2006 19 23. Thus, from all the above materials, it is evident that the offence under Section 307 IPC is attracted against the 1[st] appellant. Then the question that arises is as to the role of 2[nd] appellant. In this case, right from the inception, the consistent case of the prosecution is that the second appellant caught hold of PW1 from behind, to facilitate the 1[st] appellant to inflict stab injury on PW1. The aforesaid aspect is clearly mentioned by PW1, which stands corroborated by the evidence of PW2. The evidence of PW1 further shows that both of them were waiting there when he reached the spot. From all these aspects, the common intention on the part of both the appellants is very much evident and therefore, the 2[nd] appellant can also be held responsible for the commission of the offence under Section 307 IPC with the aid of Section 34. in such circumstances, the finding of the Sessions Court holding both the above appellants guilty of the offence under Section 307 IPC does not warrant any interference. 24. The learned counsel for the appellant has placed reliance upon the composition of the offence at the instance of PW1. However, since the offence under Section 307 IPC is not a compoundable Offence, the same cannot be acted upon. But, while imposing the sentence upon the appellants, the said fact Crl.A.No.2022/2006 20 can undoubtedly be taken into consideration. In **Rajendra Harakchand Bhandari and Others v. State of Maharashtra** **and Another [(2011) 13 SCC 311],** the aforesaid aspect was considered by the Honourable Supreme Court and it was observed in paragraph 16 as follows: "16. We must immediately state that the offence under Section 307 is not compoundable in terms of Section 320 (9) of the Code of Criminal Procedure, 1973 and, therefore, compounding of the offence in the present case is out of question. However, the circumstances pointed out by the learned senior counsel do persuade us for a lenient view in regard to the sentence. The incident occurred on May 17, 1991 and it is almost twenty years since then. The appellants are agriculturists by occupation and have no previous criminal background. There has been reconciliation amongst parties; the relations between the appellants and the victim have become cordial and prior to the appellants' surrender, the parties have been living peacefully in the village. The appellants have already undergone the sentence of more than two and a half years. Having regard to these circumstances, we are satisfied that ends of justice will be met if the substantive sentence awarded to the appellants is reduced to the period already undergone while maintaining the amount of fine." 25. The Honourable Supreme Court took the said view in **Sy.Azhar Sy.Kalandar v. State of Maharashtra and Another** Crl.A.No.2022/2006 21 **[AIR 2021 SC 4298]** also. In such circumstances, considering the fact that the incident had occurred in the year 2000 and also taking note of the settlement arrived at between the parties, the sentence imposed upon the appellants by the Sessions Court can be modified by taking a lenient view. In the facts and circumstances of the case, I find the rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- each shall be a reasonable sentence to the appellants, instead of four years of rigorous imprisonment imposed by the Sessions Court. In the result, this appeal is allowed in part. The finding of the Sessions Court holding the appellants guilty of the offence under Section 307 read with Section 34 of IPC is confirmed. The sentence imposed upon the appellants is modified by imposing a sentence of rigorous imprisonment for two years each and a fine of Rs.10,000/- each with a default sentence to undergo simple imprisonment for one year each. The period of detention, if any already undergone by the accused in judicial custody, will be set off against the substantive sentence of imprisonment. Sd/- ## **ZIYAD RAHMAN A.A. JUDGE** DG/5.5.22