Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 18TH DAY OF MAY 2020 / 28TH VAISAKHA, 1942** ## **CRL.A.No.2303 OF 2008** **AGAINST THE JUDGMENT IN SC 10/2005 DATED 26-09-2008 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK (ADHOC-1, ALAPPUZHA** ## **APPELLANT:** **THOMAS AGED 52 YEARS, S/O. RAPHEL, MOOVARAKKAL VEEDU, POONTHOPPU WARD, ALAPPUZHA AND NOW RESIDING AT KUNNATHUPARAMBIL, THAKIDAVELI, KALAVOOR POST, ALAPPUZHA.** **BY ADVS. SMT.T.D.RAJALAKSHMI SRI.RANJIT SREENIVAS SRI.R.SREEHARI** ## **RESPONDENT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SR.PP. B. JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.2303 OF 2008 2** ## **JUDGMENT** **This appeal is filed against the judgment dated 26.09.2008 in Sessions Case No.10 of 2005 on the files of the Additional Sessions Judge, Fast Track (Adhoc-1), Alappuzha. The above case was charge sheeted by the Circle Inspector of Police, Alappuzha North Police Station against the accused for the offences punishable under Sections 450 and 307 of the Indian Penal Code.** **2. The Prosecution case is that the injured PW2, her husband PW3 and their son PW1 were residing in a rental house Moovarakkal,Alappuzha at the time of the alleged incident in this case. The accused and injured were neighbours. A Pathway was provided for the ingress and egress of the accused on the rear side of the house of the injured. But the accused used to walk through the front courtyard of the house of the injured and thus the relationship between the accused and family of the** **CRL.APPEAL NO.2303 OF 2008 3** **injured became strained. On 23.06.2000, the accused destroyed the cycle of the child of the daughter of the injured and so the injured and her son (PW1) made accusation against the accused regarding this matter. In the evening of 23.06.2000 at Pulikkal junction, the accused called the names of PW1 and manhandled him. When PW1 made noise, the people in the locality assembled there and attempted to attack the accused. So the accused entered into the tea shop of Sugunan and shutdown the shutter of the shop and thus he escaped. PW1 and his father (PW3) filed a petition against the accused in the evening of 23.06.2000 itself before the North Police Station, Alappuzha regarding the incident happened at Pulikkal junction. Due to this animosity, the accused trespassed into the house of the injured and in the early morning on 24.06.2000 while the injured was preparing tea, stabbed her with a chopper with an intention to kill her. Immediately, she was taken to the Medical College Hospital, Alappuzha and treated there. Hence it wa** **CRL.APPEAL NO.2303 OF 2008 4** **alleged that the accused committed the offences punishable under Sections 450 and 307 of the IPC.** **3. To substantiate the case, the Prosecution examined PW1 to PW20. Exhibits P1 to P16 were marked on the side of the Prosecution. Exhibit D1 is marked on the side of defence. The material objects are MO1 to MO8.** **4. After going through the evidence and documents, the trial court found that the accused committed the offences punishable under Sections 450 and 307 of the IPC. The accused is sentenced to undergo a rigorous imprisonment for three years under Section 450 IPC and also imposed a fine of Rs.5,000/-. In default of the payment of fine, there was a further direction to undergo simple imprisonment for a further period of three months. Under Section 307 IPC, the accused is sentenced to undergo rigorous imprisonment for seven years and also directed to pay a fine of Rs.5,000/-. In default of payment of fine, the accused is** **CRL.APPEAL NO.2303 OF 2008 5** **directed to undergo simple imprisonment for a further period of three months.** **5. Aggrieved by the conviction and sentence, this appeal is filed by the appellant who is the accused before the lower court.** **6. This appeal was filed on 06.10.2008 and this Court admitted the appeal and the execution of the sentence was suspended on certain conditions. The case came up for consideration before this Court on 23.03.2016. On that date, the case was adjourned and the matter again came up for consideration on 13.02.2019. On that date, there was no representation and hence the case was again adjourned. Thereafter, the case came up for consideration on 21.06.2019. On that date also, there was no representaiton for the appellant and hence the case was again adjourned. Again the case was posted on 26.08.2019. On that date also there was no representation for the appellant and hence the case was adjourned. Thereafter, the appeal was** **CRL.APPEAL NO.2303 OF 2008 6** **posted on 24.09.2019. On that date, it was submitted that the counsel for the appellant died and some time is necessary for making alternative arrangements. Thereafter, the matter was posted on** **07.11.2019. On that date also there was no appearance for the appellant. Hence this Court issued notice to the appellant in person. Accordingly the notice was sent by the Registry on 12.11.2019 with hearing date as 22.11.2019. The ntoice was received by the appellant and the acknowledgement card was also received by the Registry. Thereafter, the case was listed on 12.03.2020. On that date also there was no representation. Finally, the case is posted today.** **7. It is true that, it is a criminal appeal filed against the conviction and sentence. Since there is no representation for the appellant, even after notice was issued by this court, this Court is forced to consider this appeal on merit after hearing the Public Prosecutor. In such situation,** **CRL.APPEAL NO.2303 OF 2008 7** **whether the hearing of the counsel or the accused is necessary is considered by the Hon'ble Supreme Court and this Court. In Bani Singh v. State of U.P. [1996(2) KLT 424 (SC), the Hon'ble Supreme Court considered this point and relevant portion is extracted hereunder:** _**“We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo’s case appears to be sound except for a minor clarification which we consider necessary to mention. The plain language of S.385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it ‘must’ call for the record and S.386 mandates that after the record is received, the appellate Court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Ss.385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court**_ **CRL.APPEAL NO.2303 OF 2008 8** _**to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross checking, the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non –prosecution but only contemplates disposal on merits after perusal of the record. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav’s case that if the appellant or his pleader is not present, the proper course would be to dismiss the appeal for non-prosecution.”**_ _**“Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. S.385 states that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. S.386 then provides that the Appellate Court shall, after perusing the record,**_ **CRL.APPEAL NO.2303 OF 2008 9** _**hear the appellant or his pleader, if he appears. It will be noticed that S.385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also S. 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss.385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot , on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance**_ **CRL.APPEAL NO.2303 OF 2008 10** _**of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav’s case did not apply the provisions of S.385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent.” [Emphasis supplied]**_ **8. The above decision of the Apex Court was relied on by this Court in Salim P.H. v. Joji Jose and Another [2019(5) KHC 894]. This Court followed the direction of the Apex Court, regarding the course to be adopted while disposing criminal appeal, in which there was no representation. The relevant portion of the judgment in Salim (Supra)** ## **is extracted hereunder:** _**The principles laid down by the Apex Court in the aforesaid decision are: (1) When an**_ **CRL.APPEAL NO.2303 OF 2008 11** _**appeal is not summarily dismissed under Section 384 of the Code, the Appellate Court shall not dismiss an appeal for nonprosecution simpliciter without examining the merits (2) The Appellate Court is not bound to adjourn the appeal if both the appellant and his counsel are absent (3) The Appellate Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so (4) The Appellate Court can dispose of the appeal on merits after perusing the record and judgment of the Trial Court (5) If the accused is in jail and if his lawyer is absent, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused or his lawyer. If the Court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the Court from doing so (6) If the case is decided on merits in the absence of the appellant, the higher Court can remedy the situation, if there has been a failure of justice.**_ **9. In the light of the principle laid down by the Apex Court in Bani Singh (Supra) and the** **CRL.APPEAL NO.2303 OF 2008 12** **decision of this Court in Salim (Supra), I think, this appeal can be disposed of on merit. The appeal was posted on several occasions and there was no representation on behalf of the accused. When it was reported before this Court that, the counsel who was appearing for the appellant died, this Court issued notice directly to the appellant. Even thereafter there was no representation for the appellant. In such circumstances, I think, this appeal can be disposed of on merit after hearing the Public Prosecutor. The law does not say that in all cases, court shall adjourn a criminal appeal, if both the appellant and the counsel is absent continuously. The court can dispose of the appeal after perusing the records and the judgment. The law clearly expects the appellate court to dispose of the appeal on merit, not merely perusing the reasoning of the judgment of the trial court, but by cross checking the reasoning with evidence on record with a view to satisfy that there is no failure of justice. It is a settled position that,** **CRL.APPEAL NO.2303 OF 2008 13** **the appeal is a continuation of the trial. Therefore, it is the duty of the appellate court to consider the appeal with more responsibility, especially in cases in which there is no representation to the appellant.** **10. Thinking the above principle,I am disposing this appeal. The Prosecution case is that the appellant due to previous animosity, trespassed into the house of the injured in the early morning on 24.06.2000 and stabbed her with a chopper with an intention to kill her. The injured witness was examined as PW2. PW1 is the son of PW2 and he is an eye witness. PW3 is the husband of PW2. PW4 is the neighbour of PWs 1 to 3. PW4 seen the injured falling into the courtyard of the house with bleedings from her body. PW5 is the owner of the shop where the injured was laid and she covered the wounds with a white coloured dhoti. PW6 is the Village Officer who prepared scene plan. PW7 was examined to prove that the incident happened at** **CRL.APPEAL NO.2303 OF 2008 14** **Pulikkal junction where a scuffle between the accused and PW1 happened earlier. PW8 turned hostile to the Prosecution. Of course, when the Public Prosecutor cross-examined him, he narrated the incident in the tea shop on that date. PW9 is the doctor who examined the injured PW2 and issued Ext. P4 wound certificate. PW10 is the witness to Ext.P5 scene mahazar. PW11 is the witness to Ext.P6 mahazar. PW12 was the Police Constable of the Alappuzha North Police Station, who was signed in Ext.P7 mahazar taking custody of the petition filed by Prasannan (PW3) against the accused. PW13 has recorded Ext.P1 First Information Statement of PW1. PW14 is the Investigating Officer in this case. PW15 is the sister of the landlady of the house wherein the injured and her family members were residing at the time of incident. PW15 was looking after the affairs of the rented buildings. PW16 registered the case against the accused. PW17 arrested the accused, when the accused surrendered before the Police Station. PW18 filed the charge** **CRL.APPEAL NO.2303 OF 2008 15** **sheet before the court. PW19 has given statement to the Police regarding the incident. PW20 is an autorikshaw driver in whose autorikshaw PW2 was taken to the Medical College Hospital, Alappuzha. I perused the deposition of all the witnesses.** **11. The evidence of PWs. 1 to 3 would prove that the accused is on enimical towards PWs. 1 to 3. The evidence of PW1 and PW3 along with Ext.P2 would show that the complaint was filed before the Alappuzha North Police Station against the accused regarding the assault on PW1 by the accused at Pulikkal junction in the evening of 23.06.2000. PW3 filed complaint against the accused before the Alappuzha North Police Station. The evidence of PW1, 3, 8 would prove that the accused assaulted PW1, the people in the locality started to attack the accused and accordingly the accused entered into the shop room of PW1 and shutdown the shutter of the tea shop and thus escaped. As PW3 filed Ext.P2 petition against the accused before the** **CRL.APPEAL NO.2303 OF 2008 16** **Alappuzha North Police Station, the accused had vengeance towards PW3 and his family is clear from the evidence. The prosecution case is that due to this animosity, the accused stabbed PW2 with an intention to murder her. When PW1 rushed to the scene of occurrence, the accused went away with weapon used for stabbing PW2. Ext.P3 is the secene mahazar prepared by the Village Officer. PW9 is the doctor who examined PW2 at the Medical College Hospital, Alappuzha and issued Ext.P4 wound certificate. PW9 deposed that at 5.50 a.m. on 24.06.2000, he had examined the injured Lalitha and he noted the following injuries on her:** _**1.Incised wound horizontally placed over the left scapular region 6 x 2.5 x muscle deep cutting the muscle underneath.**_ _**2.Incised wound obliquely placed over the ® of neck 7 x 3 x muscle deep cutting the muscle underneath.**_ **PW9 has also deposed in cross-examination that muscle were cut down and hence the inference is that, necessary force had been applied to inflict** **CRL.APPEAL NO.2303 OF 2008 17** **the injured. From the evidence of PWs.1 to 3, it is clear that the accused trespassed into the house of the injured and attacked PW2 with a dangerous weapon. The evidence of PW9 will show that the injured sustained serious injuries on left scapular region and neck. In the light of the evidence of PWs.1 to 3 and PW9 along with Ext.P4 wound certificate, the prosecution clearly proved that the accused trespassed into the house of the injured and attacked her with a dangerous weapon by which PW2 sustained very serious injuries.** **12. It is true that the weapon used for the offence was not seized. When there is a clear ocular evidence from the injured and the witnesses, even if the weapon is not seized, that is not fatal to the prosecution. The motive of the accused to commit this offence is also proved by the prosecution by adducing evidence. There is no explanation from the accused for the injuries sustained to PW2 and the defence suggestion to the injured and other witnesses are vague. This is a** **CRL.APPEAL NO.2303 OF 2008 18** **case in which a lady was attacked by trespassing into her house and she sustained injuries on head and neck. In such circumstances, I think, in the light of the evidence adduced in this case, I am convinced that the prosecution is able to prove the offence alleged against the appellant. Therefore, the conviction imposed on the appellant is to be confirmed.** **13. Now what remains is the sentence imposed on the accused. The incident in this case happened on 24.06.2000. Now, almost 20 years over after the incident. Considering the facts and circumstances of the case, I think, the substantive sentence imposed under Section 307 IPC can be reduced to 5 years instead of 7 years imposed by the trial court. The sentence imposed under Section 450 IPC need not be interfered.** **14. Hence the conviction imposed on the appellant is confirmed. The substantive sentence of imprisonment imposed under Section 307 IPC is reduced to 5 years rigorous imprisonment. Fine** **CRL.APPEAL NO.2303 OF 2008 19** **imposed by the trial court under Section 307 IPC is confirmed. The sentence imposed under Section 450 IPC is also confirmed. The sentence would run concurrently. Set off is allowed under Section 428 of the Code of Criminal Procedure.** **The appeal is allowed in part, confirming the conviction and modifying the sentence.** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**